Impugning impunity

Politics in the Subcontinent often has a farcical element about it, with politicians posturing and preening and often ending up with a foot or two firmly ensconced in their mouths. But this comedic aspect can also acquire a darker side, as has been seen in the fast recently undertaken by Gujarat Chief Minister Narendra Modi under the tag of Sadbhavana Mission. (One could be forgiven for drawing an analogy with the Panchatantra fable of the crafty crane, who pretended to go on a fast to lull the suspicions of the fish in the lake.) The idea of Modi fasting for peace and amity, even while the wounds of the victims of the 2002 Gujarat anti-Muslim carnage – which occurred under his watch as chief minister, and in which he has been repeatedly accused of complicity – is grossly insensitive, and adds further insult to already grievous injury.

The fast comes a week after the 2002 events have been in the news once again. The Supreme Court has declined to pass an order on the petition of Zakia Jafri, the wife of a former Congress party MP, Ehsan Jafri, who was murdered during the riots. Zakia Jafri is seeking action against Modi and others for their role in the violence; her petition relates to the massacre at Gulberg Society, one of the most infamous incidents of violence in 2002, in which a housing complex was burnt to the ground. While there have been various interpretations of the order, with the BJP hailing it as a vindication of Modi, the fact is that the Supreme Court has now admitted evidence from the Special Investigating Team and also permitted placing the findings of the amicus curiae – and asked the magistrate to consider the case. Clearly, this is far from the exoneration claimed by the BJP, but the fact remains that the long battle of Zakia Jafri and others for justice continues without any resolution in sight.

It has now been nine years since communal violence shook Gujarat, and very few people have been brought to justice. Nor are the Gujarat riots the only case where impunity rules; it has now been 27 years since the anti-Sikh riots of 1984 in which 3000 people lost their lives, but very few of the guilty have been brought to book. Of course, this is the pattern of nearly all incidents of communal violence in India since the first major such riots took place, in 1962 in Jabalpur: few are ever punished, and certainly not those at higher levels of the polity who often mastermind these acts.

It is in this context that the long-delayed Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, acquires greater importance. After languishing in the drafting stage for seven years, in September six non-Congress chief ministers (including a Congress ally, West Bengal Chief Minister Mamata Banerjee) abstained from a meeting of the National Integration Council in which discussion of the draft bill was on the agenda. BJP leader Sushma Swaraj expressed opposition to the draft, which seeks to protect religious minorities, Scheduled Castes and Scheduled Tribes during communal violence. Swaraj worried that the bill was 'anti-majority', suggesting even that it would encourage communalism rather than curb it. Others, including the left parties, have warned that by authorising the Centre to intervene in cases of communal violence, the bill strikes at the federal nature of the Indian state, since law and order is a state subject.

The BJP's objections are predictable. But the fact remains that communal violence, as it has evolved in India over the past 30 years, has changed from being focused around clashes between communities to a pattern of systematic, organised violence against minorities – often with state authority being complicit in the matter. In this scenario, it is essential that legislation provide explicit protection to minorities, which this legislation seeks to do.

Defining duty

Another argument against the bill has been that there is really no need for a separate piece of legislation to deal with communal violence, and that existing provisions of the law are sufficient. There is some weight to this argument, with conscientious police officers and bureaucrats succeeding in maintaining peace in their areas in the midst of communal tensions. But with India's state governments having frequently turned a blind eye to communal violence, most infamously in Gujarat but in other cases too, there is a need for a bill that enables the Centre to step in when required, and to ensure that the machinery of the state is doing its constitutional duty.

This is an issue that the present bill specifically seeks to tackle. It provides for stricter punishment for government servants who support those responsible for the violence or fail to discharge their duties effectively in the event of outbreak of communal violence. Among other positive aspects, the bill also broadens the definition of sexual violence to include sexual violence other than rape and includes a provision for victims to present their testimony during trials. This, of course, is a critical aspect to any piece of legislation on communal violence, given that such violence is often directed against women. Finally, the bill has important provisions regarding certain standards to be maintained in relief and rehabilitation.

While there is clearly a need for fine-tuning the bill and addressing concerns about federalism, these issues can and will be dealt with during the debate in the Indian Parliament. Rather than blocking the bill at this stage, the need is to ensure that the bill, with appropriate amendments, becomes law soon. Doing so will ensure that those on the receiving end of communal violence have strong legislation to protect them when the next such outbreak takes place, as it inevitably will.