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REWIND
New Delhi, 7 May 2022
WANTED: BAN ON COMMUNAL PARTIES
By Inder Jit
(Released on 17 April
1990)
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. --- INFA
(Copyright, India
News and Feature Alliance)
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