I am not one of those who look upon the National Advisory Council (NAC), functioning under the UPA Chairperson, Ms Sonia Gandhi, as an extra-Constitutional authority, enjoying power without responsibility, and meddling with matters falling within the legitimate functions of the Government.
I think it is performing the useful role of taking up for advance policy planning issues and contingencies which the Government, because of the day-to-day pressures, has been unable to address, or may have overlooked.
The risk of stirring up hornets' nests is inherent in such proactive efforts. The NAC finds itself in one such predicament for coming up with the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill. In sheer scope and volume, it is a remarkable piece of work, extending to 66 pages, containing 138 sections, four schedules and four appendices, and leaving nothing to chance.
It is under attack principally on two fronts. The first is on the ground of violation of the federal structure of the Constitution and vesting the Centre with a wide range of powers to exercise control over States in the domain of law and order which squarely falls within their ambit.
The second objection originally raised by the BJP, and now supported by the likes of the Bihar Chief Minister, Mr Nitish Kumar, and Tamil Nadu Chief Minister, Ms Jayalalithaa, is that it is likely to foment distrust between the majority and minority religious communities and create among the people at large an impression that it is the majority community that is invariably responsible for outbreaks of communal violence.
In Ms Jayalalithaa's opinion, Central and State authorities may exploit it “to vent frustrations on vulnerable persons, or wreak vengeance against any group that is outspoken or critical” and that the Bill will not “even remotely achieve its desired objective”.
A close reading of the NAC's draft Bill is certain to confirm these apprehensions which are based on sound reasoning. It doubtless upsets the delicate balance in the powers of the Centre and the States, by giving sweeping authority to the former in certain situations to over-ride the latter, virtually obliterating the States as Constitutional entities.
For instance, the occurrence of organised communal and targeted violence (a new concept introduced in the Bill) within a State shall constitute “internal disturbance” within the meaning of Article 355 of the Constitution and the Central Government can then practically take over the State administration for as long as the “internal disturbance” continues in its subjective judgment.
Likewise, the Bill makes it “the duty” of the Centre, the States and the Union Territories to carry out the directives of the National Authority for Communal Harmony, Justice and Reparation proposed to be established.
The Bill has also put in problematic definitions with a whole host of subjective elements liable to subjective or biased interpretation and vitiating relations between communities. Take the definition of “hostile environment against a group”: The word ‘group' has been given the connotation of “a religious or linguistic minority, or Scheduled Castes and Scheduled Tribes” and ‘hostile environment' is said to mean creation of an intimidating or coercive environment when a person belonging to the group is subjected to humiliation and harassment, denial of livelihood, deprivation of fundamental rights, or eviction from place of residence.
Going a step further, the Bill has also conceived of “hate propaganda” as a new offence in the nature of acts inciting hatred, causing clear and present danger of violence against a group or persons belonging to that group. The expressions used are so very nebulous that a person can be hauled up for almost anything done or said by way of criticism of a religious minority or members of SC or ST and made to face severe punishment.
The Bill bristles with many such examples. The Government will be doing itself and the people a great service by shelving the Bill or at the most, placing it before the Inter-State Council for advice after it is given an intensive scrutiny by a team of dispassionate Constitutional experts..