Bill on suppression of communal violence not what doctor prescribed in CMP

This is a far cry from the CMP’s clear attempt to ensure that the proposed law does not in any manner disrupt the existing federal balance which leaves the responsibility of law and order entirely to the states.

Though the provisions that have since been drafted tilt the balance in favour of the Union, the Home Ministry has sought to cover its flanks by reproducing the language of Article 355 of the Constitution in the preamble of the Bill.

The Bill is purported to have been drafted in pursuance of the ‘‘duty’’ cast on the Union by Article 355 ‘‘to protect states against external aggression and internal disturbance.’’ The preamble goes on to put communal violence in the category of internal disturbance as it tends to ‘‘destroy the secular fabric and threaten the unity and integrity of the nation.’’

Even otherwise, the Centre can claim to have legislative competence to enact a law empowering itself to deploy armed forces without the consent of the state concerned.

This is because the Seventh Schedule of the Constitution specifically carves out an exception to the general rule of law and order being a state subject. Item 2A of the Union List confers discretion on the Centre to deploy any armed force ‘‘subject to the control of the Union… in any state in aid of the civil power.’’

But before taking recourse to armed forces, the Centre, according to the draft Bill, would have to declare an affected place to be a ‘‘communally disturbed area.’’ The question whether a certain area is communally disturbed or not would however be determined by the Centre or the state concerned. The fact that no independent or neutral authority would have any say in the matter may actually defeat the purpose of the proposed legislation.

The Centre might well be loathe to exercise any of the proposed powers in a situation like Delhi 1984 where the Centre itself was accused of complicity or like Gujarat 2002 where the same party was in power at the Centre and the state concerned.

It is also ironical that the very Government that has made such a show of repealing POTA and has promised to review the Armed Forces Special Powers Act in the wake of the Manipur controversy has drafted a Bill that is virtually an amalgam of those two notoriously draconian laws.

In what is probably an unprecedented provision, the draft Bill deviates from the general safeguard that requires any investigating agency to produce an arrested person within 24 hours before the nearest judicial magistrate.

The proposed law gives the investigating agency the option of choosing between a judicial magistrate and an executive magistrate, who is a junior civil servant. In the normal course, an executive magistrate gets to decide somebody’s personal liberty only in the unlikely event when a judicial magistrate ‘‘is not available.’’

In a further departure from the ordinary law, the draft Bill dispenses with the role of an executive magistrate where he is actually meant to be used, namely, to disperse an unlawful assembly with the help of armed forces.

Under the Criminal Procedure Code, an officer of the armed forces ordinarily cannot open fire without the prior permission of an executive magistrate. But, as reported for the first time by The Indian Express last week, the draft Bill empowers armed personnel to open fire and use force to the point of killing people without taking any magistrate’s consent.

Another provision seems to be a glaring throwback to TADA. The draft Bill provides for detention without charges for as long as one whole year. Normally, an accused cannot be detained without charges beyond 60 days or 90 days, depending on the severity of the offence involved.