The country was just about recovering from the drama of the lokpal bill when the National Advisory Council (NAC) announced the draft of the ‘Prevention of Communal and Targeted Violence Bill’.
Justice JS Verma and Justice BN Srikrishna, two of India’s finest jurists, have expressed strong reservations regarding the need to introduce this bill, arguing that adding to the plethora of laws was not the solution, which lay in better implementation of existing laws.
Those in the NAC involved in the preparation of the draft cite Gujarat 2002 as the justification for such legislation. The question that arises is whether lack of powers available with the executive in Gujarat was what impeded their ability to prevent the carnage.
When the National Human Rights Commission (NHRC) intervened in Gujarat in 2002, singly, effectively and with such incredible moral power, Justice Verma was its chairperson. I was serving at that time with him as secretary general of the NHRC, and accompanied him to Gujarat.
What was appalling was the total inaction of the civil services and the police (barring some superb exceptions) due to the indifference, pusillanimity or politicisation of its members.
Subsequently, after the issue of the orders and recommendations by the commission regarding action to be taken, we deliberated about what could be done to prevent the recurrence of such a situation. Samar Singh, whose tenure as district magistrate, Jabalpur, was legendary, suggested that the NHRC should prepare a compilation of laws, orders and guidelines that empower officers to take action to prevent and control riots.
The study of this document should form an essential part of training IAS and IPS officers, so that lack of knowledge could not be an excuse for inaction; it should also be circulated among legislators, members of the press, judiciary and civil society to provide a lever to pressure officers to act and ensure that discussions and debates on such issues would be informed ones.
Justice Verma, when approached, welcomed the initiative.
Three examples would make clear the need for such a compilation. Whenever the police, under the British, got a hint of impending trouble, they began by arresting owners of bicycles whose lamps were not functioning.
Mayor Rudy Giuliani did something similar while cracking down on crime in New York, adopting the ‘Broken Windows’ approach — catch those responsible for petty crimes to convey that order will be maintained. These were creative uses of provisions of various laws available, to warn troublemakers that the State was alert.
The second relates to the principles behind the use of force. The normal one advocates ‘minimum force at the last opportunity’, whereas in guidelines issued by the government in cases of communal riots, it was ‘maximum force at the earliest opportunity’.
The last was regarding military aid to civil power. The press reported on Gujarat that the delay in calling in the army arose because the district authorities were awaiting clearances from the chief minister or home minister. This was both incredible and preposterous.
The position under law is that while normally officers obey the directions of superiors, as sub-divisional magistrate or district magistrate, they know no superior. This was the genius of classical district administration: in a crisis, decision-making was reduced to the discretion of one.
The compilation was prepared, despite the complete and continuous non-cooperation of the ministry of home affairs. The volume referred to and analysed not less than 15 enactments directly concerned with the maintenance of public order, bringing out that what was lacking in Gujarat was not power but the reluctance to use it.
The new draft bill proposes a whole new bureaucracy. Almost three quarters of a civil servant’s time is spent in housekeeping matters of the department they serve in — postings, transfers, departmental inquiries, answering Parliament and parliamentary committees.
There is already a possibility that the lokpal will be a hydra-headed monster that will collapse under the weight of its own powers; do we want another similar body that is expected to ‘prevent any communal violence, monitor the probe, the prosecution and the trial and distribution of relief and reparations to deal with communal riots’?
Additional laws are not the solution, but the will to act is. Whenever this is absent, officers should be compelled by the other arms of the State and civil society to use the powers that the State has invested them with.
(PC Sen is a former secretary general, National Human Rights Commission. The views expressed by the author are personal)