In possibly his first letter to the Prime Minister after his controversial request not to gift Sir Creek to Pakistan on the eve of the Gujarat Assembly election in December 2012, Narendra Modi has urged Dr Manmohan Singh to drop the contentious Prevention of Communal Violence (Access to Justice and Reparations) Bill, 2013, a brainchild of Sonia Gandhi’s extra-constitutional National Advisory Council (NAC). This unexpected move by the Bharatiya Janata Party’s Prime Ministerial candidate has set the dovecotes aflutter and is probably the most cogent challenge to the ‘communalism’ paradigm set by the Congress in the post-independence period.

Timed with Parliament’s winter session where Congress is determined to pass the Bill, the epistle opposes the legislation on grounds that it deals with matters on the State List and violates the federal structure of the Constitution. More pertinently, it seems to be guided by political considerations and vote-bank politics. It is also badly drafted. The Gujarat Chief Minister suggests that a law that is to be implemented by a State Government should be legislated by the State Government, and the Centre could share a ‘Model Bill’ with the States.

Narendra Modi apprehends that the proposed legislation may divide society by sharpening religious and linguistic lines, giving even ordinary incidents of violence a communal colour. There is some merit in this contention. Even three months after the Muzaffarnagar riots broke out on August 27 (over an eve-teasing episode), the pro-minority Samajwadi Party regime has not been able to restore amity and confidence among the communities, and families in camps are afraid to return to their villages. The onset of winter has made the camps unlivable, but neither the State Government nor the Centre has been able to send the uprooted families back to the old homesteads.

In September, the Prime Minister Manmohan Singh, Congress president Sonia Gandhi and vice-president Rahul Gandhi aggravated communal suspicions by visiting only Muslim victims of the riots in Muzaffarnagar. The Amethi MP, who is reportedly keen to revive the Congress in Uttar Pradesh, has made no move to return and work things out in cooperation with Akhilesh Yadav, though the SP is supporting the UPA at the Centre.

Indeed, the combined failure of the UP-UPA regimes to restore normalcy in Muzaffarnagar should be the yardstick to measure their political will in dissipating communal tensions. For the Muslims, the primary vote-bank of non-BJP parties, this would be a good time to introspect if the politics of religious identity has not trapped it in sterile co-dependency. This may also be an opportune moment to ponder the persistent failure to do justice to the victims of the 1984 pogrom in Delhi, under the watch of the ruling Congress and alleged participation of its cadre and leaders, some of whom joined the Cabinet of Rajiv Gandhi. Given the precedent set in the post-Godhra riots of 2002 and the escalating sense of injustice tormenting the survivors, there seems a strong case to take the anti-Sikh pogrom cases outside the Capital.

And whereas nobody has held the then novice Prime Minister Rajiv Gandhi as personally responsible for the targetted violence against Sikhs in Delhi and other cities in northern India, we may honestly ask if it is fair to blame the then rookie Chief Minister who was sent as a stop gap arrangement following the resignation of Keshubhai Patel, for what happened after two bogies of the Sabarmati Express were burnt in February 2002. Narendra Modi pointedly claims he presides over a Government that is sensitive to communal violence and that Gujarat has been riot-free for over a decade. This sharply contrasts with the record in Uttar Pradesh, where there have been over 100 riots in the brief tenure of Akhilesh Yadav. Though Congress president Sonia Gandhi and vice-president Rahul Gandhi are MPs from Uttar Pradesh, neither has ever taken up the issue of persisting communal violence with the State Government, or suggested measures to overcome the sense of alienation between the communities. What kind of vigilance is this?

The Gujarat Chief Minister’s contention that the contents and timing of the Bill are suspicious and appear to be motivated by vote-bank politics on the eve of the Lok Sabha election is not without basis. Moreover, the Bill attempts to encroach upon the powers of State Governments; is poorly drafted; and merits far wider consultations among the State Governments, political parties, police and security agencies. On no account should it be rammed through Parliament. Prime Minister Manmohan Singh has assured, “It will be our effort to evolve broad-based consensus on all matters of great legislative importance”. But the fact remains that the UPA chairperson Sonia Gandhi and her unelected NAC are behind the legislation. The Gujarat strongman had previously objected to individuals having links with anti-national elements (read Maoists) entering organisations like the Planning Commission and NAC.

Highlighting specific shortcomings in the Bill, Narendra Modi points out that Section 3(f) that defines “hostile environment” is wide ranging, vague and open to misuse, while the definition of communal violence under Section 3(d) read with Section 4 raises questions whether the Centre is introducing the concept of “thought crime” into Indian criminal jurisprudence. These provisions need to be examined from the perspective of the Evidence Act – a polite way of saying that they cannot be proved in law! Many analysts have denounced the move to make public servants, police and security agencies criminally liable as this could adversely impact the morale of the law and order enforcement agencies and expose them to political victimisation. Thus, Section 10B (breach of command responsibility) that penalises a public servant for the failure of his subordinates, is absurd deals with incompetence by criminalising it. Such issues, the Gujarat Chief Minister argues, “need structural responses” rather than legislative solutions. This provision would make senior officers shirk responsibility for fear of inviting criminal liability and leave junior officials to fend for themselves in the field.

Regarding the proposal to bring the National Human Rights Commission and State Commissions into the process of exercising powers vested in the executive wing of an elected Government, Narendra Modi points out that these bodies are already empowered under the existing statute to deal with serious human rights violations during incidents of communal violence. Burdening them redressal of all issues, handling of appeals and monitoring individual incidents is neither practical nor desirable. In a democracy, the elected Government must be the focal point of all responsibility and accountability.

The Gujarat Chief Minister appreciated the establishment of a Communal Violence Reparation Fund, but felt issues of compensation should be left to the competent courts and that the Centre should only provide ex-gratia relief/assistance for immediate relief and succor to victims. He felt the introduction of compensation for ‘moral injury’ was strange and likely to be difficult to implement. Other leaders opposed to the Bill on similar grounds include Tamil Nadu Chief Minister J Jayalalithaa; Bahujan Samaj Party leader Mayawati; and D Raja of the Communist Party of India.