9 comments

• Agree with you Vinay. I reviewed the Bill here and am convinced that it thoroughly ill-conceived. I believe that exemplary tortious liability of the leadership and the party involved in violence (in addition, of course, to criminal prosecution) may be explored as another tool in the armoury of weapons we need to employ to deal with impunity. This blog has discussed the issue previously here. But as you suggest in your article, law can only lend a helping hand – the ultimate answer to communalism must be found in politics (although, I don't think law is irrelevant to this debate.)

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• Hey Tarunabh, thanks a lot for that, and for the link to your detailed review of the Bill.

  at the risk of provoking for the sake of it, allow me to argue that the law is irrelevant to this debate.

  will additional legal tools aid those who seek to control a riot/go after the rioters? of course; its hard to counter this.

  but the real question is: has the lack of legal tools hindered politicians and administrators from controlling riots if they so chose.

  anecdotal evidence of the Major riots in recent memory suggest otherwise. In every single case the problem was political (Gujarat, Bombay, Aligarh. the list is endless).

  In such a context, framing the issue as the lack of a law is motivated, at the very least.

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• thanks for the provocation, i have risen to the bait…

  surely the distinction between law and politics is difficult to make. for e.g., if the one voice missing in the political discourse is that of the victim, isn't this also reflected in our top-down legal procedures? i find civil liability attractive, at least in part, because it can be entirely victim driven – there is no need to convince the centre or the state. of course politics alone will change hearts and minds. but on questions where the response of constitutional morality is beyond dispute (such as, don't kill people because of who they are), shouldnt the attempt to craft laws that ensure this as far as possible run alongside the political discourse? the single most important lesson from Naz foundation and gay activism, to my mind, is that the two discourses-legal and political-must complement each other. why, in naz, the legal change was needed just to kick-start the political conversation. neither must be relegated to a secondary position.

  in other words, the point is this – if we can identify factors in laws and legal procedures that allow impunity (such as impunity provisions, lack of police and prosecutorial independence, lack of viable civil damages possibilities), shouldn't we try to eliminate these hurdles while continuing the political struggle? we might have become used to useless laws which pay no more than lip-service, but surely that need not be the case? indeed, by suggesting that laws don't matter, we fail to subject these legislative proposals to close scrutiny and allow pointless laws to be made.

  (ok, final eg to impress my point, drawn from your own article – the politics on article 356 changed completely after legal change in Bommai – surely the relationship is symbiotic and co-equal)

  so, the problem with riots, at least in part, is not lack of a law, but lack of the right kinds of laws (and indeed, an abundance of the wrong kinds of laws).

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• Hey tarunabh, to provoke once more:

  you give the example of 356 of bommai. it can equally be argued that a) the big hurdle to misusing 356 is the compulsion of coalition politics, not fear of the courts. b) bommai only mirrored the growing power of regional/caste-based parties in the late '80s and early 90s; not the other way around, as you argue.

  the point being that there is no blanket rule that laws will always change politics. It works in some cases (like for section 377, as you point out), and has no impact in other cases (like for communal riots, as I argue).

  i take your point about the attractiveness of civil liabilities in empowering victims. the communal violence bill, of course, is unconcerned about this. Besides, in the past, existing criminal provisions haven't worked against rioters where political will is absent (think Gujarat). creating new civil liabilities may not fare any better.

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• >the point being that there is no blanket rule that laws will always change politics.

  of course i agree with this – who would not? my main problem is with the assumption in your argument that no legal tool will make any difference to the problem of communal violence.

  let me see where we really disagree in policy terms.

  both of us agree that the communal violence bill is, on the whole, useless, if not dangerous.

  both of us agree that the political conversations on communalism must continue, for it is ultimately a battle of hearts and minds.

  i think that alongside our political struggle, we should repeal immunity provisions, provide victim driven civil damages, protect witnesses, acknowledge command responsibility in civil law (and possibly in criminal law). i suspect that you will not oppose these legal changes, in which case we are on the same plane that they may be useful, and at any rate are intrinsically just positions, whatever there instrumental value with regard to dealing with communal violence (incidentally, i have no doubt that they will not solve the problem of communal violence. they may be, as you argue, completely useless, but that is an equally difficult case to make).

  if you question any of these changes on their own merit, even then we don't basically disagree because i am also open to be shown that each of them, individually, is undesirable for its own sake.

  however, if you position is that these are undesirable changes because they may not make any difference to communal violence (a possibility i admit, if only sceptically), then we do disagree. it is the merit of this do-nothing-legally-because-it-is-all-political argument that i fail to understand.

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• Dear Tarunabh, I see you point.

  You when you say that 'good' laws might possibly help prevent communal violence. And you go on to argue that as long as this possibility exists, and political options are not precluded, what's wrong with coming up with a 'good' communal violence law. At worst, it will make no difference at all.

  This is where I think we disagree.

  The boo-haa over Liberhan's report has put a rare public spotlight on communal violence. That spotlight will soon pass on to other things that captures the public/political imagination. The question is: what to do with this spotlight?

  The COngress' ATR talk of a communal violence bill uses that very spotlight to highlight a useless bill. I think we agree on this. The danger in not immediately calling this as such, and stating that it (or better bills) have some possibility of success is that you reframe a political malaise as a legal one.

  Where we disagree is on this: you think that the political and legal options can work concurrently. I argue that in practice, it doesn't work that way. the ATR's use of the Communal Violence Bill is to deflect attention from a political solution, not work parallel to it.

  in practice, every single practical conversation on using law as a tool for a change will face these choices: is law the best way, is law an equally good way, or is law relatively insignificant to solve a social problem.

  I argue that for communal violence,the latter is the right answer.

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• those who use legal responses as an excuse to do nothing politically (like the govt.'s ATR) are wrong. they are making the mistake of seeing law and politics are alternatives rather than complimentary mechanisms.

  those who demand political action (incidentally, i have not seen anyone spell out the sort of political action they want to see) and use that as an argument to do nothing legally (like your column) are also wrong. they are making the same mistake of seeing them as alternatives.

  of course i am arguing for a nuanced position, which acknowledges the limitations of law (and, indeed, politics), yet recognises that both have a role to play. your earlier comments indicate (i hope i have understood you correctly) that you agree with this position 'in principle', but 'in practice' it is useless because politics (politicians?) will always seek the easy way out. the argument appears to be that our politics is not mature enough to understand these nuances and therefore we must choose a dumbed-down easier either-law-or-politics approach. perhaps (ironically), i have more faith in our political system's ability to deal with nuanced positions.

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• another (minor) quibble: you suggest that law is relatively insignificant to solve a social problem like communal violence.

  i may agree with you intuitively, but this is a very strong evidentiary claim to make. these questions of facts cannot (should not) be decided on the basis of intuitions. if not hard sociological research, you need to spell out your assumptions regarding the socio-economic context, the nature of the law in question, nature of enforcement bodies etc. perhaps the claim is still sustainable on the force of logic (and in absence of data) in the context of a specific piece of legislation (like the communal violence bill) where you can see the precise legal provisions, have a historical record of enforcement agencies like the police, centre, state etc. but sustaining the claim for 'law' more generally requires much more work than you seem to have done.

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• Hey tarunabh, to clarify what exactly I said/meant/was meaning to say; so we can agree on where we disagree

  1. I don't think that 'laws' are useless in dealing with communal violence. That is so general, it's impossible to defend. What I do think is that the existing laws in India are adequate to deal with communal violence (with perhaps the addition of a good rehabilitation bill, which, if well drafted, can act to channelise funds). You think a better law is possible, and as long as that possibility exists, we should keep at it.
  2. I feel that the primary cause of communal riots in India seems to be low-level state complicity, and in cases like Gujarat, high-level as well. I believe that laws cannot change this (even article 356, a remedy in some circumstances, presumes a 'better' Centre). You believe it just might.
  3. In this context, I argue talking about communal violence laws is a distraction; a palliative. You argue that it isn't, and it works in tandem with political solutions.

  Yes?

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