By Our Representative
Will Gujarat chief minister Narendra Modi seek to drop the
current provisions of the Armed Forces Special Powers Act – under which Central
forces are stationed in several states like Manipur, Assam, Jammu & Kashmir
etc. for maintaining public order – in case he comes to power in Delhi? Senior
Gujarat High Court advocate Mukul Sinha has obliquely suggested that this
should happen logically if one agrees with the legal objections Modi has raised to the prevention
of the communal violence Bill, which is proposed to be placed in the upcoming
winter session of Parliament.
Even as saying that it is “ridiculous to expect a district magistrate
to go against the state government and discharge his duties”, Sinha has accused
Modi of fueling a “hypocritical debate”, Sinha says the CM has attacked the “toothless
provision” to suggest that it would destroy the federal structure of the
constitution. Sinha says, “Modi is shouting on top his voice that our
Constitution does not permit the Centre to send forces to any state or make any
law in this regard, thus questioning the legal basis of the communal violence
bill”.
In fact, Sinha adds, Modi “is
instigating several other state governments to oppose the bill on the ground
that the law would curb the autonomous power of the state, thus dubbing it anti-federal.”
He insists, “The entry no 2A of List 1 of Union list gives exclusive authority
to the parliament to legislate for providing for deployment of any armed force
of the Union in any state in aid of the civil power.” He adds, “Under this
entry AFSPA was enacted. Under section (3) of AFSPA, if the governor of a state
is of the opinion that it is necessary to use the armed forces in aid of the
civil power, he or she could declare the whole or any part of such state to be
a disturbed area.”
Pointing out that “under section (4), the armed
forces could assume power to help the civil forces maintain public order”,
Sinha insists, “Thus Modi’s claim that Centre cannot legislate or send central
forces for maintaining public order in a state has no legal basis at all.”
While not supporting the idea of Central forces directly intervening for
maintaining public order in a state, as this would in fact depend on who really
would be controlling the Centre, the senior advocate argues, “A far better idea
would be create an independent statutory authority which should be empowered to
monitor the communal situation in any part of the country and direct immediate
deployment of central forces supervised by special officers under it. If the
consent of the states are required to enact such a law, let consent be taken
instead of rushing a toothless Bill.”
Modi in his letter to the Prime Minister opposing the Bill (for
full text click HERE)
had expressed “serious concerns” about its “constitutional validity, legality
and efficacy.” He said, “To begin with, your government’s attempt to legislate
on an issue of ‘law and order’ and ‘public order’ both of which are items in
the List II (State List) of the Seventh Schedule betrays its contempt for the
federal structure and the separation of powers.”
He had added, “The Union List (List
I) has 97 entries in it and you will agree that there are a whole range of
issues in that list which are waiting for legislation. However, rather than
addressing issues which are in its domain, the Government of India seems to be
under some compulsion to encroach upon the issues in the State List. Is it because
the implementation has to be done by the State Governments?”
Sinha observes, “A question that should perplex many of us, especially
to those of us who understand the nuances of the Bill, is as to why Modi is
opposing such a toothless piece of legislation which cannot prevent any organized
violence against the minorities. Modi’s latest tweet asking all the state
governments to oppose the bill despite the several amendments agreed to by UPA,
exposes his fear that enactment of the law would act as a legal hurdle in the
way of BJP’s future communal campaign of instigating communal violence as they
did in Muzaffarnagar.”
In any case, Sinh adds, the Bill has “failed to address the fundamental
reason as to how targeted violence against a particular community is carried
out in a large scale. Without the active complicity of the government and its
police force, no such violence can take place”, wondering, “Does the Bill give
the Central government any statutory powers to reach armed forces to save the
victims from the targeted violence aided and abetted by the State?”
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