Edit & Opinion

Wanted: Ban on communal parties

The reconstituted National Integration Council got off to a promising start last Wednesday. One day’s meeting was far from enough for the vital issues involved even though the Council met for about nine hours. Most of the time was spent in a general discussion on the challenges facing national integration with special reference to Punjab, Kashmir and the explosive Ram Janmabhoomi-Babri dispute. The NIC should have really met for two days with the second day devoted to interaction. Happily, however, the NIC was able to adopt a timely resolution reaffirming the nation’s commitment to ensuring India’s freedom and integrity. Mr. V.P Singh also took positive note of the suggestions. The Council, which assembled after a gap of more than three and a half years, will meet again at Bombay early in June and thereafter thrice every year — between sessions of Parliament. What is more, the Council decided to set up a Committee to formulate an action plan to combat the growing menace of communalism. Importantly, the Council will be given a small secretariat to monitor follow-up action and development.

The discussion was candid. No punches were pulled. At least one member said it was time for someone to say that the King had no clothes. Nehru was both eulogized and criticised. One question was posed pointedly: Is the Government serious about combating communalism and other divisive forces? Does it have the required political will? We will no doubt have to wait and see what Mr. V.P. Singh and his Government will do. Meanwhile, one thing alone is clear. Even where we are agreed on the solution, little comes to be done. As mentioned by me last week, Nehru failed to implement for 16 years a resolution adopted by the Constituent (Legislative) Assembly as far back as April 3, 1948. The resolution stated that “no communal organization which admits to or excludes from its membership persons on ground of religion, race and caste or any of them, should be permitted to engage in any activity other than those essential for the bona fide religious, cultural, social and educational needs of the community and that all steps, legislative and administrative, necessary to prevent such activities should be taken.”

The truth is that Parliament today is in a much stronger position to enforce secularism and combat communalism than during the time of Nehru — or even up to 1977. We the people of India gave ourselves a Constitution which originally provided in its preamble for the establishment of a “Sovereign Democratic Republic”. However, the preamble was amended by the Constitution (42nd Amendment) Act 1976 by adding two key words — socialist and secular. The opening sentence of the preamble now reads: “We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic, and to secure to all its citizens: Justice …” Thus, India is no longer merely a Sovereign Democratic Republic in accordance with the original preamble of the Constitution. It is today a Sovereign Socialist Secular Democratic Republic (emphasis mine). The amendment was voted by Parliament in the winter session of 1976 and came into effect on January 3, 1977.

The then Union Law Minister, Mr. H.R. Gokhale explained as follows the significance of the change: “This is not a play of words… The preamble is the key to the whole Constitution…. It is the most fundamental part of the constitutional structure which gives direction to the whole Constitution… Even courts have taken note of the fact that the preamble being the key to the Constitution, is something you cannot ignore … Therefore, the objectives which we had always in view, namely socialism and secularism… will be more accurately and correctly implemented in the basic part of our Constitution, namely the preamble. Let anyone say that ‘socialism’ or ‘secularism’ is incapable of definition. Well, if that argument were to be accepted, even ‘democracy’ in that sense is incapable of definition because is it not understood in different ways in different countries? But we understand what kind of democracy we stand for. In the same way, we understand that ‘socialism’ stands for and what ‘secularism’ stands for.”

More than anything else, this change in the preamble provides great help to the Centre in tackling any difficulty which Article 19 of the Constitution relating to fundamental freedoms could pose in regard to a ban on communal parties. Article 19 (1) (c) provides for the basic “right to form associations or unions”. This provision has been thrown by communalists in the face of those advocating a ban on communal (political) parties. Nevertheless, clause (4) of the same Article 19 also empowers Parliament to impose reasonable restrictions on this right to form associations or unions. Specifically, it provides: “Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevents the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.” Importantly, wider grounds have been provided by the Constitution 42nd (Amendment) Act 1976 by inserting Article 31-D which, according to Basu’s Commentary, “would take a law completely out of Article 19.”

Importantly, Article 31-D lays down: (1) Notwithstanding anything contained in Article 13, no law providing for (a) the prevention or prohibition of anti-national activities: or (b) the prevention or formation of, or the prohibition of anti-national associations, shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 (equality before law) or Article 19 or Article 31: (2) Notwithstanding anything in this Constitution, Parliament shall have, and the Legislature of a State shall not have, power to make laws with respect to any of the matters referred to in sub-clause (a) or sub-clause (b) of clause (1).” Clause (4) of Article 31-D makes two important clarifications. First “Association” means an association of persons. Second, “anti-national activity” means any action which, among other things, “disclaims, questions, disrupts or is intended to disrupt the sovereignty and integrity of India or which is intended… to threaten or disrupt harmony between different religious, racial, language or regional groups or castes or communities.”

My study also shows that adequate enforcement of the Representation of the People Act, 1951 could help us greatly in enforcing a ban on communal parties. This Act provides for disqualification for membership of Parliament on several grounds, including corrupt practices. Section 123 (iii) of this Act provides for disqualification on the ground of “appeal by a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols… or for prejudicially affecting the election of any candidate.” Clearly, any person who contests any election as the candidate of a party bearing a communal name, such as the Muslim League or the Hindu Rashtra Party, exploits the religious factor for furthering his own prospects of “prejudicially” affecting those of his rivals. His appeal may only be implicit and not explicit. Objectively, however, such appeal constitutes a corrupt practice which should attract disqualification. This has never been done.

Two additional steps could be taken apart from enforcing the aforementioned provision in regard to “corrupt practices”. First, the scope of the words “corrupt practices” under the Representation of People Act, 1951 could be widened to separate religion from politics. Specifically, one could treat the use of religious places or religious funds or religious symbols as a corrupt practice. True, it would not be easy to prove use of religious funds by a candidate, as things stand at present. But the difficulty could be overcome by taking a fresh look at the law relating to poll expenses. Second, disqualification is also attracted if a person is convicted for certain penal offences. We could add to these penal offences as well as enlarge the scope of the existing offences to hit communal parties effectively. At present, any person convicted under Sections 153-A, for instance, stands disqualified. This section relates to promoting enmity between different groups on grounds of religion, race, place of birth, residence etc. and doing acts prejudicial to the maintenance of harmony.

That is not all. We could also impose a ban on communal parties by doing one other thing which I have been advocating for the past many years in the context of a healthier democratic system: a full-fledged law for the political parties, as in the Federal Republic of Germany. Such a law could provide effective registration of political parties — a lot more than formal registration with the Election Commission, as at present. Communal or caste-based parties could be denied registration. However, there is no substitute for political will or character and much-needed determination on the part of the Government at the Centre to root out the evil. India’s Terrorism and Disruptions Activities Prevention Act is one of the strongest enactments on the subject. Yet it has not helped to snuff out terrorism. Defects in national character cannot be removed by legislation. In the final analysis, the reconstituted National Integration Council needs to be clear on fundamentals. Either we stand for secularism or we do not. We only invite disaster if we continue to beg the basic question and indulge in sanctimonious humbug.

 

 

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Inder Jit

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