The Parliament is presently considering the enactment of Communal Violence (Prevention, Control and Rehabilitation of Victims Bill, 2005). Chapter XI, section 55, and subsection (b) of the draft bill deals with “special powers of the Central Government to handle communal violence in certain cases.” 

The Union should resist the temptation to arrogate to itself the power to issue directive(s) to a state government in the context of the proposed bill on the analogy of articles 256 and 257 (1) of the Constitution. For such sweeping powers of the Union in the current stage of the evolution of the Indian federalism unrealistically seeks to put the clock back.

Increased federalisation of the centralised parliamentary system in India has significantly and positively contributed to greater representation of sociologically and ideologically marginalised groups and to greater national integration through federal power-sharing. There may be teething troubles in the working of federal coalition / minority governments such as delay, ineffectiveness, rollback of decisions once made.

There could also be “empire-building” by ministries weakening the authority and coordination of policies by the Prime Minister. Plus dilution of collective responsibility of the Cabinet to the Lok Sabha by dint of extra-constitutional power of regional satraps, etc. However, federalisation of political power of Parliament via coalition governments is a fact that cannot be easily wished away. 

The answer to the problems must be sought in institutionalisation of values and procedures of the Constitution rather than over-centralisation of political power in the Central Cabal. This masquerades as the cabinet system which is not consistent with a Parliamentary federal system of government.

The Bill allows central intervention in an area of exclusive jurisdiction of a state government without proclaiming a state of emergency under article 356 of the Constitution. The reasons for issuing directives for national and developmental causes can certainly cover the contingency of endemic communal violence as a threat to national unity and integrity.

It would be retrogressive as well as provocative in the current phase of federal denouement of the Indian political system that has moved away from a quasi-federal functioning of the 50’s-70’s, arguably with some positive results. The negative fallouts should be contained through “constitutionalisation” of the working of Union and state governments.

Moreover, the Bill amounts to constitutional amendment touching upon the federal feature of the Constitution as they alter the division of powers in its seventh schedule. For this reason it would require not only special majorities in the two houses of Parliament but also ratification by at least half of the legislatures of the states.

Such an amendment at the present juncture would appear to be politically as well as judicially vulnerable.

In addition, the draft Bill is unrealistic and unequal in its understanding and definition of “communal violence”. It pathologically clings to the majority-minority straight jacket of the Hindu-Muslim communalism of the period around the bloody partition of 1947. Communal violence in India today has become radically transformed.

It is a far more complex and messier affair right now. It would be ostrich-like self-imposed blindness to deny that brutal massacres of Dalits and Babhan and Rajput peasants in Bihar and of tribals elsewhere is any less heinous than the slaughter of Muslims in Gujarat and Hindus and Sikhs in Punjab and Jammu & Kashmir.

Unconstitutional vote-bank politics involving illegal Muslim migrants in Assam has reduced the Assamese linguistic majority of the state into an insecure minority and turned them into Hindu revivalists and incipiently secularist Islam in Jammu & Kashmir has similarly been transformed into Muslim fundamentalism.

The view that minority communalism is less of an evil than majority communalism is questionable both morally and legally and has proved to be destructive of civic community and Indian citizenship. 

By now Hindus of India have come to suffer from what may be called minority syndrome or psychosis much like the Muslims of Muslim-minority provinces of British colonial India.

The time has come to cultivate zero-tolerance to sectarian community struggles widely constructed to subsume a variety of “minorities”-religious, caste, tribal, linguistic. We must face the fact of the problem of guaranteeing the rights and securities of “internal minorities”, i.e. minorities within minorities that are victims of discrimination by their own communities.

We also have “discrepant majorities”, i.e. majorities that may be nationally so called but are provincial minorities and vice versa. The concept of “communal violence” put forth in the draft Bill is uncritically simplistic and lacking in empirical and critical import.

India needs to go beyond its “secularism”, which is as much alien to the standard Western notion of secularism as to the nature of Indian constitutionalism, and replace it by the concept of “multiculturalism.” This changed emphasis will also take the wind out of the Hindutva’s sails of “minorityism”, “pseudo-secularism”, “minority appeasement”, and the like.

If one must centralise the political system to deal with endemically knotty problems of inter-community violence, judicial centralism as a provisional measure would be preferable to political centralism.

When the stock of politics is deplorably low, it is imperative to rely for combating such violence on the basis of “constructive politics” of the Gandhian variety and administrative action facilitated by public institutions such as the judiciary, National Human Rights Commission (NHRC), civil society institutions, and state-society joint councils at national, state, and district levels.

(The writer is professor of Political Science, University of Delhi.)