Communal violence bill lists riots, torture, sexual assault; misses out on terror, which is the link between communal violence and genocide

shiv By Prof Shiv Visvanathan*

The Communal Violence (Prevention and Control) Bill, 2013, pending since 2005, has been making its rounds. This essay is a response to the spirit of the Bill. I must begin by confessing to my illiteracy in a professional sense. I am not a lawyer and the word bill in a financial or legal sense always creates a sense of awe and disquiet in me.

There is a second problem. These proposed bills emerge from the National Advisory Council (NAC) whose membership includes some of my favorite activists and especially scholar activists. When I see the proposed bill, like Pavlov’s dog I greet it with respect. But then I ask myself how does lay citizen read this, what skills do I have to address the problem? When NAC proposes a bill I see it in one of three ways – it represents the best of what I call civic epistemology. It harvests years of the wisdom of social movements, and turns their interpretation into legislation. Secondly it is an act of social activism telling the government about a certain sense of lack and how to remedy it. Thirdly I see it as a thought experiment, a legal game asking us to replay it so one understands the logic of rules and its politics better.

I want to read the bill in terms of all three perspectives and I want to bring to it my interest in science as a mode of thought and my interest in storytelling. What kind of a story does the bill tell? What kind of a legal plot does it structure?

A story, as narrative, is also a discourse. It employs certain categories like law, justice, violence, society and relates them in a certain way creating a network between the said and the unsaid. Let us begin with the rationale of the Bill. It seeks to address a lacuna which argues that there is an institutional bias in the systems of law, administration and criminal justice when dealing with violence against a non-dominant group in a state. Bluntly put, it claims there is a discriminatory exercise of power. It takes as its evidence the various enquiry reports of violence which show that there has been not just an abdication of public duty but a situation where justice as a citizens’ entitlement is not available or even accessible. What we witness is a style of problem solving which defines a problem and states a solution in terms of a specific set of categories.

Three words jump into notice almost immediately. The first is secular democracy, the other two, often hyphenated, are majority-minority. This bill is an effort to create a Minoritarian justice. What does it mean?

Firstly it uses the language of identity and identity politics. Such a language is ethnic, religious, linguistic and its logic often works against the flat land of secularism that the document holds sacred. Does secularism and identity politics go together? Consider a tribal society which is often an oral regime living in society which values a written text. Is the culture of justice the same?

This point was made in a different way in a different context. The cultural critic and historian of science Zia-uddin Sardar once commented that as a British citizen and a practicing Muslim, he had a double set of entitlements to the National Health Service. He claimed that he had a right to health and also a right to his own system of healing, his cultural notion of pain, cure, death and the body. This double entitlement stemmed both from his status as a citizen and his identity as a Muslim.

When a thought experiment like the Bill is conducted, where secularism meets identity politics, the question one asks is whether justice is in the standardized language of secularism, or does it include dialects, voice and theories where local or ethnic ideas of justice are embodied? Is there an anthropological sensitivity to justice or is it a secular space.

Why do I emphasize this? In a thought experiment, one expects more from the imagination. In fact, one would make the distinction that Cornelius Castoriadis made between the imagination and the imaginary. The imagination is the extrapolation of current categories around an event, a discourse or a text. For example, sovereignty, territoriality, federalism, boundary would constitute part of the current imagination of a nation state. The imaginary goes beyond the horizon of current possibilities. It goes into the future, it speculates on what can be. Consider an example. The imagination of riots operates almost with the imagination of disasters. It uses the standard model of rescue, relief and rehabilitation, with the usual language of compensation. At a time, when disaster relief has gone beyond the 3R cycle to redefine the construction of the social, why does imagination around rehabilitation of riot victims remain early twentieth century? The debate on disasters is a theatre of plural exercises on justice, rehabilitation, the reconstruction of the social, the varieties of time.

Unfortunately the COMMUNAL VIOLENCE BILL still reacts to rehabilitation as if it is detailing an act of plumbing. There is lack of sensitivity here, a missing literacy.

Let me state it in another way. A problem solving narrative like a riot has to be constructed twice. The first is a before-after picture. The second is a picture looking back in time. The second process is oddly skeletal. Is justice only an act of compensation, a restoration of the original, or can we use the riot to go beyond a plumbing imagination? Violence and its aftermath is a situation which creates new possibilities. There are new imaginations, new expectations. Marginal groups like migrants, orphans, widows, landless see the social in a new way. Yet the bill freezes the social into a status quo ante. As an imagination it is a trifle disappointing. Its sense of rehabilitation has no sense of reconstruction or reinvention.

The categories of discourse that the bill employs are still the language of majority-minority. The M-M frame is the language of electoral democracy where minorities are often at a disadvantage. Thus what cannot be achieved by electoralism is affected through rule of law and governance. The question one has to ask is does the language of majority-minority as group or collective category vitiate the idea of citizenship which often has to go beyond the identity of local collectivities. The idea of the M-M frame exposes the limits of a secular democratic framework because it fails to look at the contradictions of secularism. The taken for grantedness about the concept is intriguing.

Beyond categories, the operationalization of the problem takes place in terms of administrative institutions. It is surprising to see people who have made major contributions to civic epistemology opt for gargantuan bureaucratic structures. Thus we see pollution, corruption and communalism as problems and each gets a National Regulatory Authority. Sadly it does not even get a familiar acronym. Does bureaucratizing a problem such as riots really create a solution?

One responds to specific issues here. Firstly and there is something innovative here, there is an attempt to look at the responsibility of public officials both the higher bureaucracy and the lower participants. The document raises the tension between hierarchy and visibility and observes that in the aftermath of a riot; usually the only official punished is a low level bureaucrat. The chain of command and control is not seen as a chain of responsibility. This rings true. In the aftermath of Gujarat riots which needed official complicity to work, only a sub inspector has so far been arrested by the SIT.

The provisions of the bill seek a more pro-active bureaucracy, arguing that one of the greatest causes of targeted violence is that public officials do not act. In fact, they see it as the heart of the legislation, of creating accountability as a deterrent to biased action. The question one asks is, is neglect an easy category to identify? Is benign neglect punishable? Secondly is punishment a workable deterrent or does the heuristic of responsibility go beyond bureaucratic rationality?

The bill seeks to create relief camps. But its sociology of a relief camp is not adequately clear. Relief camps become minor cities whose temporariness becomes ironic. When camps operate for years, they acquire a permanence where an internally displaced refugee becomes a new resident. Ela Bhatt of SEWA talking about violent conditions and the return to normalcy in riot situations and in war conditions of Darfur and Afghanistans repeatedly suggests that what the women ask most for is work. Work not only begins a revival of the economy but is therapeutic as dignity. But the detailed shopping list of the relief camps never mentions the return to work as a critical part of a return to normalcy.

I think the category of violence included in the bill lists riots, torture, sexual assault but misses out on terror. Terror also hints at the link between communal violence and genocide. Terror is a part of the aftermath of riots where the displaced victim is terrorized so as to prevent him from returning to his original habitat. Today riots are a major form of internal displacement and the role of terror in perpetuating the impact of riots needs a closer examination. Thirdly, the situation of riots is seen too often from a family centric picture. What one misses is a sensibility to fragmented groups like orphans, widows, single mother families. These construct the social in a different way and they are often victims of compensation conflicts between surviving segments of the family. One does not want to be cynical but one must guard against riot entrepreneurship, where families often try to maximize returns in terms of compensation. Emma Tarlow’s work on the 1984 riots gives concrete evidence of this. One has to be sensitive to the fact that riots and disasters can create their own forms of corruption. Any reform set within a majority- minority politics needs to be sensitive to this trend.

A hermeneutics of a new law demands its own right to information. As a text the COMMUNAL VIOLENCE BILL must have relied on judgments, reports, other bills as suggestive models. One would, for a sense of the craft, of the process of the legislative act, like to examine the sources of the imagination. For example one is tempted to ask whether the model for compensation comes from the insurance claims. Where does it locate its sense of a worth of a human life? A document entering the public domain must be more open about its genealogies of dissent. Its list of composers reveals sources of conflict. What were they? Who dissented and on what? One needs a wider visibility for the debates that went into the making of this bill. It might be a crucial part of its imagination.

There is a tacit bias in the document that I want to tease out. It recognizes minority-majority relations as the stuff of politics and confronts it. Yet, the relationship is read as a dualism, a polarity, a situation which sees no web of relations between M-M or even the possibility of syncretism. While positing confrontation, distance and duality; it sees only injustice and confrontation. Surely, the picture could be more complex. Processes like plurality, hospitality and reciprocity also need to be recognized and woven into the fabric of the social.

My suggestion may not be welcome but let me state it anyway. A unilateral attempt might be necessary but inadequate. It has to locate this search for justice in the categories of a wider discourse. It has to ask: is the bill seen as fair and just by the majority? If they see it as a form of minoterian appeasement, can the bill survive? What set of categories could cut across and create possibilities for the tacit survival of the bill.

I want to push this further. The fact that the bill seeks to defend minority groups does not mean it has a Minoritarian sensibility. It seeks to establish a social contract between M-M. Can we push it further? Think of the possibilities.

Think of a Muslim group that wants reconciliation. What is the mix of justice and reconciliation that we can imagine? Or is justice only retributive? Beyond retribution and compensation, does justice include something else? What does ethnic idea of law have to contribute here? The question I am asking is that is an anthropology of justice possible as a prelude to the making of such bills? Let me cite an example from a slightly different context. While working on the aftermath of the Bhopal disaster, a group of women once told us “We are not thinking only about compensation. Compensation cannot restore everything. Let us make a suggestion: why don’t the people from the carbide plant come and spend a fortnight here? Live with us, talk to us, listen to us as we listen to them.” Justice needs meaning and meaning often comes from the tacit and unstated parts of our lives.

Each bill as a legislative act carries a tacit constitution with it. The idea of tacit knowledge was developed by Michael Polanyi to refer to the taken for granted, the embodied learning, the craft sense which may not be articulate. A tacit constitution refers to the political, economic and philosophical categories that underlie law or our constitution. They include the ecology of ideas like our notion of time, calendar, standards, contract and fairness that underwrite the overt Constitution. The proposed bill has a tacit constitution which seeks to translate an ethics of memory into a legislative act, which valorizes the secular, which posits a certain relation between democracy, rule of law and governance. One needs to highlight these to capture the tacit assumptions of COMMUNAL VIOLENCE BILL.

The only thing I have black-boxed is the law in a technical sense. One might need a critical group of lawyers and legal researchers to examine whether this is a wish list or an effective legal instrument, which is technically correct and instrumentally effective. Will it work legally? One does not know. There is a chain of questions that haunt this bill and I hope we have the time and patience to examine it critically.

Well-known sociologist. Professor at O P Jindal Global University, Sonepat.

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