The Chief Minister of Gujarat Shri Narendra Modi has expressed his strong opposition to the proposed Prevention of Communal Violence (Access to Justice and Reparations) Bill, 2013. In a letter to the Honourable Prime Minister of India, Dr. Manmohan Singh, Shri Modi described the bill as being ill-conceived and poorly drafted and a recipe for disaster. He described the bill as an attempt to encroach upon the authorities of the state governments and sought wider consultation among the various stakeholders such as the state governments, political parties, police and security agencies etc. before any further movement on the issue.
Shri Narendra Modi said that as a Chief Minister of a Government that is sensitive to the issue of communal violence and a state that has been riot free for over a decade now, he agrees that there is a need to be vigilant on communal violence but the contents and timing of the bill are suspicious. He questioned the hurry of the Centre to introduce the bill in the Parliament, saying that such an attempt before the Lok Sabha elections is suspicious and is driven by votebank politics rather than genuine concern for preventing communal violence.
In his letter to the Prime Minister, the Gujarat Chief Minister brought out the various operational issues in the proposed Prevention of Communal Violence (Access to Justice and Reparations) Bill, 2013. He shared various shortcomings in the individual sections of the proposed Bill.
For example, the Section 3(f) that defines “hostile environment” is wide ranging, vague and open to misuse. Likewise, the definition of communal violence under Section 3 (d) read with Section 4 would raise questions on whether the Centre is introducing the concept of “thought crime” in the context of the Indian criminal jurisprudence. Shri Modi added in his letter that these provisions have also not been examined from the view of the Evidence Act.
Strongly opposing the move to make public servants, police and security agencies criminally liable, Shri Modi has warned that such a move can adversely impact the morale of our law and order enforcement agencies. It may also make them vulnerable to political victimization.
On Section 10B (breach of command responsibility) that penalizes a public servant for the failure of his subordinates, Shri Modi wrote that this provision is absurd as it tries to deal with incompetence by trying to criminalize it. Saying that such issues need structural responses he criticized the tendency to find legislative solutions to all problems.
He also criticized the proviso to Section 10B and warned that it would imply that senior officials would shy away from intervening due to the fear of criminal liability and leave the junior officials to fend for themselves on the field.
He expressed his strong concern that the proposed legislation would further divide Indian society on religious and linguistic lines, saying that religious and linguistic identities would become more reinforced and even ordinary incidents of violence would be given a communal colour thus giving the opposite result of what the Bill intends to achieve.
Shri Modi has been extremely critical of the manner in which the Centre in bringing the communal violence bill has showed no consideration for the nation’s federal structure. He wrote that the Centre’s attempt to legislate on issues of “law and order” and “public order” that are a part of List II (State List) of the Seventh Schedule show the Centre’s contempt for the federal structure of the nation and the principle of separation of powers. He wanted to know why is the Centre slow on legislating on issues that are part of the Union List (List 1) that has 97 entries but instead has been keen to encroach upon issues in the state list. Shri Modi asked if this is an attempt by the Centre to blame the state governments for “improper implementation” after saddling them with poorly drafted and ill-conceived legislations that do not give the desired results and ends up worsening the problem.
The Gujarat Chief Minister categorically maintained that this is an issue under the State List and that if it is something that would have to be implemented by the State Government then it should be legislated by the State Government. He added that if there is something the Centre wishes to share it is free to prepare a “Model Bill” and circulate it among the various State Governments for their consideration.
Shri Modi recalled the Chief Ministers’ Conference on Internal Security where he had raised, among other things how certain individuals having links with anti-national elements have penetrated into bodies such as the Planning Commission, National Advisory Council etc. and that these are the same individuals who may have drafted this new bill on Communal Violence. He also expressed his concern that the law making powers of an elected government may have been usurped by extra-constitutional authorities like the NAC.
On the proposal to bring the NHRC and the SHRC into the process of exercising powers that are vested in the executive wing of an elected government, Shri Modi felt that these bodies are already empowered under the existing statute to deal with serious human rights violations during incidents of communal violence. He went on to state that burdening these bodies with redressal of all issues, handling of appeals and monitoring individual incidents is neither practical nor desirable. Shri Modi penned down his firm belief that in a democracy it is the elected government that must be the focal point of all responsibility and accountability and that to shake this basic structure would be ill-advised. Thus, the role of the NHRC and the SHRC should pertain to their present roles under the existing laws, Shri Modi wrote to the Prime Minister.
While welcoming the establishment of a Communal Violence Reparation Fund, Shri Modi termed the use of the word compensation as arguable, saying that government should leave the issues of compensation to the competent courts and should instead provide ex-gratia relief/assistance to provide immediate relief and succor to the victims. He opined the introduction of compensation for “moral injury” under the Bill as strange and one that does not take into account implementability.