Most of the opposition, in the Upper House at least, is united in opposing the introduction of bill. They may see this as a move by the Congress to woo minorities' votes in view of the upcoming general elections. The deputy chairman of the Upper House, P J Kurien, ruled that the Prevention of Communal Violence Bill, 2014, stood deferred in view of the “Mood of the House”. I would only slightly discuss communal angle to the issue and rather focus mostly on the legality of the proposed bill.
To be frank very few in India can compete with and challenge the opinion of Jaitley over legal matters. This may very well be true of Sibbal’s assertions over legal matters as well. Now since the two opinion differ a pole apart, mostly due to their differing positions in the Parliament, others can join the debate. I am no body but still I am writing as I believe that I have got freedom to write on this issue, just as almost always on other issues as well.
I can understand that the Union can enact such laws for the betterment of Indian state and also in the larger public interest though it would still be controversial to do so whenever such is tried. In Federal governmental structure as localized and applied in India, the Union is of utmost importance and it can give directives to the states and could even enact laws on their behalf under special circumstances.
Those circumstances may include the Union's duty to fully implement the Constitution in letter and spirit. But to be frank Federalism is hardly applied in India in the strictest sense as Union's rights are disproportionately huge here in India as compared to those of the states and subunits of Indian state do not have required economic freedom.
The preamble of the Indian Constitution is of utmost importance and it declares India as a socialist, secular, democratic republic. Sure, socialist word came after the amendment brought about by the Indira Gandhi’s government but word secular is there since beginning.
To be frank it is more the duty of Union to implement and protect the Constitution than those of states and on that count if all states do not agree for appropriate legislations- those that defend and implement Indian Constitution- which would be the case for most of the time, then the Indian Union is duty bound to enact such laws after Parliament’s approval, taking away few of the negotiable rights of the states for a short term in a rare precedence, though almost permanently until and unless not repealed by the future Parliament.
However, if it be termed as encroachment into the legislative powers of the state by Union it is fully ethical and should be seen in decency and in the direction of the betterment of larger public interest, even if it be a bit more political than what it should be.
The Indian Parliament is supremely sovereign within the nation-state and such can never be disputed. To clarify one more point, the fact is that Cabinet cannot infringe upon the states’ subjects on its own but the Union government can introduce the appropriate bill in the Parliament. After the passage of the bill in both Houses of the Parliament and after the due consent of the honorable President of India such would become law. But there is always question of unethical and disputed mixing of executive and legislative powers of various institutions.
Nevertheless, I personally do not support the proposed bill as I do believe that it could lead to unnecessary conflict among various demographic constituents leading to unnecessary diffusion. Some believe that the bill could result in unnecessary and avoidable persecution of Hindu majority many times in the hands of state. It does not mean that culprits, whosoever they be, should be forgiven and left unpunished. Sure, there should be no violence against the minorities and all parties, most notably the BJP, needs to make sure peace and socio-economic stability all around India.
The better thing would be to let India be governed by approximation and all the governments in India must make sure that macroscopic stability is maintained. Few aberrations, in fact very few, can be tolerated sometimes. But if violence against minorities does not stop over the longer period of time then the Union and states together should enact Communal Violence Bill in consensually agreed form. The views of the BJP on this issue matter as much as those of the Congress, irrespective of which is the governing coalition in New Delhi.
To be honest some time should be spared to all by the incumbents in New Delhi to come into terms with the actual situation in public life and the deputy Chairman of the Upper House of the Parliament has rightly gauged the mood of majority of lawmakers of the House.
The election season is about to start and government should not play petty politics on as sensitive issue as communal violence. It is good that the new Parliament would decide about the future course of actual legislation. The mandate for the Congress-led UPA2 is almost over. This is the reality of time and all should accept it.