Is NAC’s Anti-Riot Remedy Beyond Use by Date?

Ashutosh Varshney has written an admiringly lucid & comprehensive critique of premises on which Communal violence bill prepared by National Advisory Council (NAC) rests. His article raises the bar significantly high for both the proponents & opponents who are party to the debate on the bill. It sets a high standard that the columns in Indian Express rarely seem to match now days. Though he calls for “Rethink of the communal violence bill”, he is not with those who oppose the bill and have premised their arguments on “minority appeasement for electoral gains” or on “reverse discrimination against majority community”. At the beginning, he makes this clear: “Before I develop my critique, let me begin with a word of admiration. The largest part of public commentary thus far has concentrated on whether minorities require special protection against violence, as the bill purports to do. The NAC is right; the critics are wrong”. Those for the bill have countered allegation of *minority-ism* by pointing out that even Hindu community, which forms majority overall in India, would be protected through the bill in states or regions where it is in minority. Varshney takes the debate for beyond this to less explored areas, which both sides should sit up and take notice.
The key points he makes are:
1.      Cultural RightRadical Left: Those who argue that for a modern nation state it is imperative to have a common culture would love to have minorities embrace the majority culture. Whereas Radical left desires the same result but from the pulpit of having individuals alone relating to & negotiating with the nation state without allowing any group identities to skew the relationship. In effect, both deny consideration of minority identity though approaching from opposite end of the political thought.
2.     Communalism: Is it limited only to Majority or Minority community? He holds that communal outlook is not a function of numbers, it can infect anyone irrespective of relative size of his or her community; and he is right.
3.     What is more dangerous- Majority or minority communalism? This he answers with remarkable precision. Majority communalism suffers from the grave danger of being easily mistaken for Patriotism or Nationalism. He cites many examples from past. [The incidents of stray attack on middle-eastern minority that took place in US post 9/11 could easily have turned into majority communalism had the prejudices whipped up by media led by Rupert Murdoch’s empire were not dissipated in the devastating attacks on Afghanistan and Iraq. Such dangers don’t leave even *mature* democracies untouched].
Here he concludes this set of arguments by saying, “In sum, therefore, fundamentally because of the easy, though erroneous, equation of majorities with nationhood, a democracy must protect its minorities from violence. The NAC is right to emphasise the vulnerability of minorities and to stress that the Indian state can behave in a highly majoritarian fashion”.
With “But do we need a new law and a new bureaucracy to make that point?” this he plunges into another set of issues.
4.     He takes issue with the concept of “presumptive guilt”, which the bill seeks to impose on the civil servant/s, who is/ are responsible for law & order. If there were a riot in the jurisdiction of a particular civil servant, then he summarily stands guilty of dereliction of duty- “The bill makes civil servants legally liable for riots. They will be fired, demoted or reprimanded, if a riot takes place on their watch”. This, he admits, would make civil servants proactive and stickler to the rulebook, but would also leave them vulnerable too to disgruntled politicians or miscreants, who may foment communal riots to send unwanted civil servants packing. [This objection of his is weak as can be seen from the history of two legislations based on shifting the burden of proof to the accused of his innocence: “Atrocities against the Dalits” & “Domestic violence”. There have been instances of misuse or abuse, but largely these legislations have served their intended purpose].
5.     The second objection of his to above is far more serious as it stems from empirical findings.  According to him, a dysfunctional, conniving, or emasculated bureaucrat is only part of the problem (To be sure, there are enough cases of officials ignoring their duties during riots. Delhi after Mrs Gandhi’s assassination and Gujarat 2002 have already been cited. More examples can easily be added. But it is also worth inquiring whether that is the only reason riots took place). A top most cop he interviewed told him that the way “*socio-economic* life is organized in a city or town (he mentions their co-habitation pattern or lack of it, but doesn’t explicitly talk about interdependence between communities)” plays a crucial role in the vulnerability of that place to communal riots. He observes, “Why has Aligarh been so riot-prone, whereas Bulandshahr, a town next door, has rarely had a communal riot? Why have Meerut and Morabadad been so communally nasty, whereas the neighbouring Muzaffarnagar and Bareilly hardly ever witnessed a communal riot after independence? Did Aligarh, Meerut and Moradabad have riots because the civil servants stationed there ignored, or supported, the killing of Muslims, or is there something about the local relations of Hindus and Muslims in these towns that made them riot-prone?”. This observation begs a very close and extensive examination. NAC or anyone else, for or against the bill, would have to answer this question thoroughly, and then ponder over its ramifications before rooting for the bill as it is, modifying it, or killing it. [Unfortunately, Varshney leaves this pivotal issue tantalizingly unanswered. Is it because he doesn’t know the answer, which seems unlikely, or for some other reasons, is unclear? An otherwise excellent exposition is severely marred by this & two more analytical deficiencies that are glaring. When he asks rhetorically: is that the only reason riots took place?; he fails to hold politicians squarely and wholly responsible for engineering riots for electoral or other gains. Like him, others too have studied the anatomy of riots, and found that most riots lacked what they were supposed to have- spontaneity of emotional conflagration. They were invariably vitiated by pre-planning. Bureaucrat contributes by way of omitting to act to prevent or control them rather than commission them. Apart from the fear & polarization that riots engender and do encourage en-block voting from every community, they were also used as a red herring to distract from glaring failures of the ruling class in providing good governance or from the gathering protests against unbearably hurting policies aimed at enriching few at the expense of most. Wars too serve same role by ratcheting up patriotic jingoism on either side that pushes real problems affecting people to the bottom. Now *terror attacks* seemed to have overtaken as preferred tool over costly wars and riots. The stratagems of rulers to manage discontent and disaffection of the ruled don’t enter his frame of reference directly].
This brings us to the third and *probabilistic* section of his analysis: What can we say about the odds of rioting in India in the next 10, 20 or 30 years? A vast amount of cross-country research on riots and civil wars has been published in recent years. And a large conclusion has emerged.  According to worldwide evidence, riots are regular occurrences at low levels of national income, but only occasional episodes at middle and high incomes….. As a result, a new politics of aspirations emerges, shrinking space for politicians to mobilise groups for communal riots.  With rising prosperity, issues in politics begin to change”. Then he adds something which is rather curious for only half a connection he makes, “Communal discontent does not fully disappear, but it begins to take the form of higher-technology terrorism as opposed to low-tech mass riots”. This is insightful but flawed because it is like a man standing on one leg- unstable. Because shortly he continues, “Second, at higher national incomes, state capacities also increase and governance improves”. Unless, in some mysterious way he is suggesting that *better governance* implies use of *high-tech terrorism* to suit ‘aspirational society’ rather than use of *low-tech mass riots* more appropriate to ‘deprivation-al society’. If he does (which is quite likely), he can’t leave it so vague. Yet, half a connection he makes is intriguing in the absence of his even mentioning the catch phrase of “globalization” or “global village”. In an economically and politically uneven world, it is impossible to manage societies everywhere based on the tool of *low-tech mass riots*, which may not work in rich societies; but *high-tech terrorism* works well everywhere. It engenders seamless control across national boundaries, which are difficult even for all powerful & footloose global capital to completely obliterate. It is not even desirable in its scheme of things.
6.    But the question he poses as a result of his foregoing analysis is valid: “The bill also envisions creation of a new set of state institutions: a National Authority for Communal Harmony, Justice and Reparation, headquartered in Delhi… This great institutional proposal invites a basic question: Does the NAC expect the future of India to be as riot-ridden as India’s past has been? Massive law-and-order bureaucracies are normally created to deal with a frequently recurring problem, not for something highly infrequent or rare. We need to ask if riots will be occasional episodes, or regular occurrences, in the coming years. If riots are going to be occasional, we can’t justify the creation of a huge permanent bureaucracy”. Is NAC advocating a huge bureaucratic institution today to redress the problems of the past? Would this institution have relevance where *Terror* replaces *Riots*?
Many eminent jurists have held that there are enough laws already on the statute to deal comprehensively with issues that Riots Bill, Terrorism Bill, or Corruption Bill, etc. want to address. If those laws haven’t worked, what is the guarantee new ones will work though they will undoubtedly impose sizeable burden on the exchequer? Same Jurists hold it would help infinitely to see how to make existing laws work and if necessary innovatively amend them as deemed necessary. That is a great take away. Varshney’s article hopefully should stimulate a healthy debate, which it richly deserves.

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