Wednesday, July 15, 2020
Home Opinions From Masuka to Communal Violence Bill, the dangers of UPA 3 can be unimaginable

From Masuka to Communal Violence Bill, the dangers of UPA 3 can be unimaginable

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In the build-up to the 2019 elections, discussions have taken off on social media on the various possibilities that may arise next year. While the confidence among supporters of BJP and specifically PM Modi is quite high, it is also a fact that the Congress seems to be approaching 2019 with much more focus than what has been seen in the past few years. The role of certain ‘Data Analytics’ companies is being touted as the reason for the increased focus of the Congress top-leadership.

Lord Walrus has an excellent post on the various scenarios that are likely to emerge based on the results of the elections — from an RW point of view. The first of the possibilities he considers — that of an NDA loss — is without a doubt the most damaging result from an RW/Hindu-cause point of view. Lord Walrus also summarizes the effect of such a result very well.

Not only will they have an ideological opponent in power, but the opponent will consider their [RW] existence as a thorn in the flesh. The ideological opponents will likely use everything at their disposal to hunt and smother the fledgeling RW… Moreover, bringing back UPA3 will certainly bring back sectarian lawmaking with a vengeance… UPA3 will definitely set back the Hindu revival by at least 2 decades, if not more. I am personally afraid that UPA3 will sow the seeds for another partition

The above conclusions on what is likely to happen got me to wonder if this is just a fear the author has — or perhaps fear mongering to rally Hindu Nationalists? Or is there some genuine basis for such thoughts? What proof exists that justifies the claim that UPA 3 will bring back sectarian lawmaking with a vengeance? How are we so sure Hindu revival will be set back?

I did a little bit of research looking for any “proof” from the past that confirms these fears. And sure enough, I found many. We know a number of laws and policies that UPA1 and UPA2 made, such as the RTE, NCMEI, the creation of the minority affairs ministry, the Sachar Committee, the takeover of more and more temples and so on — that have deepened the communal divide in this country. But what we have perhaps forgotten is the amount of preparatory work done by the same “Idea of India” folks for “UPA3”. If and when UPA3 comes back, many of these work-in-progress items are definitely going to see the light of the day — albeit in some modified or restructured form. And the possibilities that these would-be actions are likely to cause fully justify the fears of a “setback of Hindu revival”.

Converting Education into a Battlefield

Lots have been written about the sectarian #Core1 laws that UPA1 and UPA2 have made. The creation of the NCMEI, the 93rd Constitutional Amendment, the RTE Act, are all ensuring massive damage to the foundation of the Education sector in this country. While the RW folks were/are still in the process of truly understanding the long-term impact of these moves, UPA had already moved on to the next stage — facilitating the conversion of the field of Education into a legal battlefield.

The fact that Education is one of the biggest domains of litigation in this country is actually a severe indictment of the failure of our Education policy since Independence. However, instead of focusing on removing the thorns in this sector that lead to such high litigation, UPA moved towards formal recognition of this unfortunate fact and introduced the “Educational Tribunal Bill” in 2010. The bill, passed in Lok Sabha, has now thankfully lapsed. However, it is extremely likely that the same will be reintroduced in some form or the other.

The bill proposes setting up of National and State level Tribunals that will handle all forms of disputes and litigation in the domain of education. The stated “goal” is the speedy resolution of disputes in the field. However, as we have seen with the National Green Tribunal, such dedicated bodies tend to encourage litigation, especially of the false variety.

The Educational Tribunals will have a mix of Judicial, ‘Expert’ and ‘Administrative’ members — the latter two being drawn from the domain of education. It will be free from the clutches of the “Code of Civil Procedure” and will resort to “Principles of Natural Justice” — in other words — the decisions it will give will purely depend upon the leanings of the Tribunal members. The non-compliance of the orders of this Tribunal will invite a prison sentence of 3 years and fines of lakhs of rupees.

The Act also has its signature “Idea of India” elements — craftily worded sections to exempt minority institutions from its ambit. Section 51 says the following

Nothing contained in this Act or the rules made thereunder shall apply to any minority institution to the extent to which they are inconsistent with the functions and powers vested upon the National Commission for Minority Educational Institutions

A quick look at the NCMEI Act shows that it actually has powers to decide pretty much everything that relates to minority educational institutions.

Functions of Commission. Notwithstanding anything contained in any other law for the time being in force, the Commission shall .

…. enquire, suo moto, or on a petition presented to it by any Minority Educational Institution, or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice…..

…. decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such

Therefore, the above section is in effect a blanket exemption to minority institutions.

Formalise Sectarian Funding

A very genuine concern of the #Core team has been the policies of appeasement being practised by all Governments since Independence. Doling out scholarships, loans, infrastructure funding and financial aid based solely on religious considerations is truly anti-#Core but fully ‘Idea of India’ compliant. Along with ideological reasons why this is wrong, the fact remains that such funding is purely unconstitutional.

However, the groundwork has already been done to overcome the objections to these policies. In accordance with the “recommendations” of the Sachar Committee, the UPA1 Government had set up a committee to make recommendations for setting up an “Equal Opportunity Commission” in 2007. This committee came out with a report, and a draft law, that sets up such a Commission.

The stated goals of this Commission are to accord formal recognition to “substantive equality” and eliminate (even) “indirect discrimination”. In real terms, this translates to sanction for sectarian purses. Once “substantive equality” is formally recognized, almost all sectarian purse spending can easily be justified by suitable definitions of “substantive equality”. By its very definition, there cannot be a standard explanation for “substantive” equality. And one can always look for facts/examples to justify a certain sectarian policy.

A ‘Violence Bill’ that’s Communal in Nature

Another favourite area where UPA1 and UPA2 did a lot of preparatory work has been the area of “communal violence”. In 2005, UPA1 introduced a communal violence bill. In 2011, under the guidance of the NAC, UPA2 introduced a revised draft of the same. Although the bill had to be dropped in 2014, grounds for its withdrawal were primarily due to the concerns about overlap with powers of the State government. However, the truly worrying parts of the bill are not related to who exercises control — but the starkly communal and draconian provisions it had.

  • In the 2005 version of the bill, any “group” that has become a victim of communal attacks could seek redressal. However, in 2011, a new definition of the “group” which is protected, was introduced.

group means a religious or linguistic minority, in any State in the Union of India, or Scheduled Castes and Scheduled Tribes within the meaning of clauses (24) and (25) of Article 366 of the Constitution of India

  • Thus only minorities and SCs/STs could be “victims” and the perpetrators of communal violence would always be the majority, which is Hindus.
  • The definition of “offences” itself was so wide — any sort of crime could be brought under the ambit of this Act.

“Continuous unlawful activity of a widespread or systematic nature knowingly directed against a group or part thereof’ means the course of conduct involving the multiple or mass commission of acts referred to in this section, whether spontaneously or planned, whether over a short or prolonged period or in one place or a number of places simultaneously or otherwise, against any group or part thereof

  • About 35 offences under the IPC were brought under dual ambit — by making it also relevant to this Communal Violence Bill. The only additional criterion being it has to be committed multiple (read — more than once) times against a minority.
  • The Act turned many judicial concepts upside down. It mandates that every accused be first assumed guilty — with the onus of proving otherwise on the accused.

Whenever an offence of organized communal and targeted violence is committed and it is shown that a hostile environment against a group exists or the offence of hate propaganda under section 8 was committed against a group, it shall be presumed, unless the contrary is proved, that the said offence was knowingly directed against persons belonging to the group by virtue of their membership of the group

  • The Act allows for the property of the accused to be attached even during the pendency of the trial!

Where the charge has been framed in relation to an offence under this Act, the Designated Judge may direct that the property of the accused person be attached during the pendency of the trial and until conviction or acquittal, as the case may be

In other words, the punishment for an accused starts even before he/she is convicted of any offence!

  • The body created to supervise the implementation of this Act — the National and State ‘Authority for Communal Harmony, Justice and Reparation” — will always have a majority of members belonging to the “group” (as described above). In other words, an organisation consisting of a majority of members of the victim group will oversee the trial and punishment of the group of accused who belong to a different community.

The list of such blatantly sectarian provisions in this Act goes on. The few listed above should give a very good idea about the potential damage it can cause.

Superstition a curse that affects only Hindus!

The Karnataka Government recently passed an “anti-superstition” bill. A cursory look at the “Schedule” in the bill that lists offences punishable under the Act make it clear that only Hindu practices are under the radar.

Made snana and walking over coals have already come under the reigns of this Act. It goes without saying that the list of such “superstitious” practices covered in the Act will only increase in the days to come.

A national level law that acts as the parent law for each State to emulate is most likely to happen if UPA3 comes back. Given the continuous activism being performed by sympathetic lawyers and NGOs in the various courts in the past few years — to take out many Hindu rituals and customs — from Jallikattu to Dahi handi to Deepavali crackers — the possibility of a central law to ban all of them — the exact opposite of #Core5 — is more than certain. And it is not like they have stopped trying even when they are out of power. Most of the cases that targeted Hindu customs recently had wily lawyers from the Congress party fighting it. And these are not just any lawyers, but senior most lawyers who are also Congress leaders. Now, if they can create such damage when out of power, one wonders the extent to which they would go to if they do return to power.

Masuka leeway in disguise?

While there have most certainly been incidents of violence by many people in the garb of protecting cattle and apprehending cattle thieves — the issue of rampant theft of cattle in itself is a clear and present problem in India today. However, the ‘Idea of India’ brigade has paid unfair and disproportionate attention to the violence caused by the mindless few and ignored the genuine problems of the cattle loving majority. At the height of the artificially pumped up noise about “lynching” in the country, #IOI warriors came up with draft legislation that punishes such crimes. By casting a wide net to cover offences under such Acts, including defining victims as those who have suffered even ‘mental and psychological harm’ (things that are next to impossible to disprove) the goal is to make it extremely tough to even protect oneself from actual crimes in these scenarios.

Read this excellent critique to understand why such laws are anti-pattern and will have the reverse effect of what it actually claims to help prevent.

Conclusion

The concerns of increased sectarian lawmaking and thereby fuelling of communal differences are real. While we may be stuck in a swamp right now — with no easy way to get ourselves out of it — Hindu RW need to realise the effect of a UPA return in 2019.

“apni pair pe khulaadi maarna” – would be the best way to describe it.

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