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Sunday, October 17, 2021

Re-arming the law

In the wake of the new violence, the targeted killings bill must be revived and owned by all

Written by Upendra Baxi |
July 21, 2017 1:11:04 am
communal violence, anti minority, anti minority violence, anti muslim violence, muslim violence, muslim terrorism, modi government, indian express news, india news, opinion Conventional wisdom teaches us that a defining mark of a modern state is its monopoly over the means, methods, and ends of violence. Illustration by C R Sasikumar

Utterly condemnable is the spate of targeted killings and communal violence associated mainly with the contexts of cow vigilantism, despite the Prime Minister’s increasingly angry expostulation. Not all lynching is cow-protection related. Some acts are frankly little ethnic wars, some purely casteist attacks against the Dalits, some acts of dire violence on Muslims, and all are politically tolerated.

The Opposition may insist that the larger percentage of cow vigilantism occurs in BJP-ruled states and the spokespersons of the ruling coalition may equally gleefully show that Opposition-ruled states also have a significant share of vigilante violence.

Both sides may rightly agree that law and order is, and must, remain a state subject. But a constitutional power can never be a license for anarchy. Amid all the politicking, the question is: Where do the victims of such political violence go? The favourite governance phrases today are: “Let the law take its own course” and “Do not take the law in your hands”. Like all governance slogans, these appeal to common sense, old or emergent.

The common sense is that a social order is based on the sovereignty of law and complete ouster of self-help. But what is to be done when political and governance cultures encourage self-help? The idea that private actors, galaxies of stormtroopers, are necessary to perform the labours of competitive politics is anathema to the basic structure of the Indian Constitution. In outlawing the Salwa Judum and invigilating the extra-judicial killings by Manipur police and armed forces, the Supreme Court of India has recently said this, and much more.

The difficulties besetting the due course of law are legion. First, the law may never take its course when the police refuse to file the FIR, despite the Supreme Court’s insistence that they ought to.

This means that the event did not occur in law, though it did in society. Second, delayed and faulty investigation, either due to workload or to covert or overt party pressures, may tend to defeat the proceedings. So may, third, the lack of effective legal representation and the postures of out-of-court settlement.

Fourth, the endless judicial delays, and the total lack of political will to improve access to justice, betrays a structural indifference to the sufferings thus caused. Fifth, parliament response to specific proposals may be problematic: For example, the targeted violence bill, 2011, and the “honour” crimes bill as proposed by the National Women’s Commission.

The main reason for the stalemate is the belief that existing laws are sufficient. This argument (I recall as a member of the committee of the Bureau of Police Research) urged that the enactment of a new law against atrocity was not justified when a cluster of offences (like conspiracy, murder, grievous hurt, arson and looting, and attempt) were already IPC offences. Fortunately, then, the idea of atrocity as a separate offence was recognised.

The current anxieties about lynching are much the same. Why enact afresh when an IPC cluster of separate offences can be invoked (though stripping and parading is not a specific offence). But lynching should now be recognised as integral to collective political violence.

Its definition should be borrowed from targeted violence bill, which defines communal and targeted violence as meaning and including an “act or series of acts, whether spontaneous or planned, resulting in injury or harm to the person and or property, knowingly directed against any person by virtue of his or her membership of any group, which destroys the secular fabric of the nation”.

This definition is superior to the one recently proposed by an NGO named MASUKA. Its definition of a “mob” as comprising two or more persons ignores distinctions between a “mob”, a “crowd” and a “group”.

The targeted violence bill also adequately defines as punishable hate propaganda, atrocity, sexual assault, torture and creation/reinforcement of a hostile environment. The bill casts several duties on police and others, violation of which is a serious offence.

The most important innovations are limiting impunity (superior orders do not constitute a defence unless they are lawful) and the creation of a national authority for harmony, justice, and reparations.

The targeted violence bill was prepared after years of effort by human rights and social activists, and vetted by legislative officials. In the wake of new violence, it now needs to be owned by all, including political parties who ought to pass it in the current session of Parliament.

Conventional wisdom teaches us that a defining mark of a modern state is its monopoly over the means, methods, and ends of violence. In fact, theories of sovereignty and legitimacy of power are based on this first premise of monopoly over force. The use of force by individuals is permitted in self-defence and it may be invoked when force is used “reasonably” and “proportionately”.

But as world histories of law show, lynching, stripping and parading, deadly ethnic and communal riots, and social boycotts are organised by heavily politically patronised groups which enjoy virtual impunity from the law. In these circumstances, the expression “the law will take its own course” sounds cruelly hollow, unless the law is rearmed.

The FBI idea of “sovereign citizens” is not permitted by the Indian Constitution. Gathering momentum after the 9/11 event, they were described as “anti-government extremists” who believe that even though they physically reside in this country, they are separate or “sovereign” from the United States and “they believe they don’t have to answer to any government authority, including courts, taxing entities, motor vehicle departments, or law enforcement”.

Such anti-government citizens do exist and must bear the full brunt of stricter laws and counterinsurgency forces. Why should the targeted violence bill not be enacted now in the face of lynching? If any notion of sovereign citizens who can be judge, jury, and executioner at the same moment gains further ground, the Indian state’s monopoly over force will be jeopardised.

By the same token, to name honest dissent as anti-government or even anti-national will begin to erode the foundations of democracy. The law should never be deployed as a programme of political revenge but always regarded as an instrument for social justice and orderly change.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

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