Sunday, November 13, 2011

NAC’s Bill would land Dikshit in jail

By Swapan Dasgupta

Amid the annual madness over college admissions, Delhi is witnessing a sideshow in St Stephen's College, which its Principal has described as a "national treasure". It seems that Sandeep Dikshit, a Delhi MP and son of Chief Minister Sheila Dikshit, was dropped as the alumni representative on the college's governing body. The college authorities say that Dikshit hadn't attended a single meeting since 2009 and Dikshit has retorted that St Stephen's has lost the plot and functions like a "communal institution." In reply, Principal Valson Thampu has charged Dikshit of failing to distinguish between communalism and "minority rights."

Despite the headline-grabbing potential of anything to do with St Stephen's, this controversy is somewhat stale, and unless someone says something rash, is certain to peter out in the coming week. However, my reason for invoking this minor skirmish is different.
If the Communal Violence Bill (CVB) as drafted by the National Advisory Council is passed by Parliament, it is entirely possible that the Congress MP for East Delhi could well be confronted with a non-bailable warrant on the charge of creating a "hostile" and "offensive environment" against a minority institution [clause 3 (f) (5)]. A member of a minority group could walk up to any Police Station and submit that Dikshit's expression of disgust with St Stephen's had contributed to his "mental" and "psychological" harm [clause 3 (j)]. He would claim that Dishit's outburst "could reasonably be construed to demonstrate an intention to promote or incite hatred" against the Christian minority [clause 8]. Since the proposed legislation stipulates that "Every Police Officer shall take action, to the best of his or her ability, to prevent the commission of all offences under this Act" [clause 18 (2)], the relevant thana will have to register a case under the new legislation.

Nor can the politician in Dikshit brush off the case as yet another occupational irritant whose handling is left to a lawyer and forgotten. The CVB is explicit that "unless otherwise specified, all offences under this Act, shall be cognizable and non-bailable" [clause 58].
More insidiously, the proposed legislation has an intriguing clause: "Where any question arises whether an offence committed against a member of a group was committed against him or her by virtue of his or her membership of a group , it shall be so inferred that it was so directed from the nature and circumstances of the act" [clause 73]. In plain English, this means that there is a presumption of guilt of the accused. As far as the CVB is concerned, the principle of innocent until proven guilty has been turned on its head.

Cooling his heels in custody, the MP may wish to send someone to impress upon the complainant that he meant no harm to the "secular fabric" of the country. Unfortunately for him, the CVB is categorical that the "National Authority shall take appropriate action to protect the identity of the victim or informant at all times" [clause 40]. In short, the man charged with spreading communal hate won't even know which lunatic has made the complaint against him, and for what collateral reason.

In case, the Police Officer decides that the case against Dikshit is frivolous and completely spurious, that will not be the end of the story. The anonymous informant who has to be constantly updated on the progress of the inquiries [clause 69 (1)] will have the automatic right to appeal to a seven-member National Authority [clause 70 (1)].

The National Authority appointed by the Centre is not made up of seven sober and dispassionate judges. Of the seven, four must be members of a minority group or SC/ST and four must be women [clause 21(3)]. Apart from a knowledge of law, they must "have a record of promoting communal harmony" and shouldn't have been a member of a political party in the year preceding their appointment [clause 23 (1)]. Additionally, they shouldn't "have exhibited bias against any group, by acts or in writing or otherwise [clause 23 (2)]. It is unlikely such an authority will be unbiased.

For India, such a National Authority, blessed with draconian powers, including the right to enter properties, carry out searches [clause 33 (4)] and even control media content [clause 8 and 67(1)] may remind people of the infamous Rowlatt Act. But there is an added twist: this is the first time a statutory and quasi-judicial authority will be appointed on the basis of a communal quota. And this body will also monitor and review transfers and postings of the civil administration in districts that have a record of communal tension or where communal disturbances could flare up [clause 32(2)]. India will thus make its debut in coupling activist jurisprudence with communal jurisprudence. With a State Authority mirroring the National Authority and replenished by Human Rights Defender for Justice and Reparations' in each district [clause 56 (1)] it will not be jobs for all the activists and their friends, relatives and lovers.

India will witness a parallel government committed to the principle that some Indians are more equal than others. It will open the floodgates for settling private scores and political vendetta. The dangers of outsourcing law-making to the self-professed army of the virtuous couldn't have been better illustrated.

Sandeep Dikshit is lucky he said what he did in the twilight days of sanity.

Sunday Pioneer, May 29, 2011

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