Prohibition of communal festivals – La Dépêche


The reconstituted National Integration Council got off to a promising start last Wednesday. A day’s meeting was far from enough for the vital issues at stake, even though the Council met for around nine hours. Most of the time was devoted to a general discussion of the challenges facing national integration with particular reference to Punjab, Kashmir and the explosive Ram Janmabhoomi-Babri conflict. The NIC really should have met for two days with the second day dedicated to interaction. Fortunately, however, the NIC was able to pass a timely resolution reaffirming the nation’s commitment to securing India’s freedom and integrity. Mr. VP Singh also took good note of the suggestions. The Council, which met after a hiatus of more than three and a half years, will meet again in Bombay in early June and then three times a year — between sessions of Parliament. In addition, the Council decided to create a committee responsible for formulating an action plan to combat the growing threat of communalism. It is important to note that the Council will have a small secretariat to oversee follow-up actions and development.

The discussion was frank. No punches were fired. At least one member said it was about time someone said the king had no clothes. Nehru has been both praised and criticized. A question was asked with insistence: is the government serious in its fight against communitarianism and other forces of division? Does he have the required political will? We will no doubt have to wait and see what Mr. VP Singh and his government will do. In the meantime, only one thing is clear. Even when we agree on the solution, little is done. As I mentioned last week, Nehru for 16 years failed to implement a resolution passed by the Constituent (Legislative) Assembly as early as April 3, 1948. The resolution stated that “no communal organization which admits or excludes from its membership persons based on religion, race and caste or any of them, should be allowed to engage in any activity other than those which are essential for religious, cultural, social and educational needs of the community and that all measures, legislative and administrative, necessary to prevent such activities must be taken.

The truth is that Parliament today is in a much stronger position to uphold secularism and fight communalism than it was in Nehru’s time – or even until 1977. We the people of India are given a Constitution which originally provided in its preamble for the establishment of a “Sovereign Democratic Republic”. However, the preamble was amended by the Constitution (42n/a 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 establish India as a sovereign, socialist and secular Democratic Republic, and to secure to all its citizens: justice…” Thus, India is no longer merely a sovereign democratic republic as per the original preamble of the Constitution. Today it is a Democratic Secular Socialist Sovereign Republic (emphasis mine). The amendment was passed by Parliament in the winter session of 1976 and came into force on January 3, 1977.

The then Union Justice Minister, Mr. HR Gokhale, explained the significance of the change as follows: “It is not a play on 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 entire Constitution…Even the courts have taken note of the fact that the preamble being the key to the Constitution is something you cannot ignore … Therefore, the goals we always had in view, namely socialism and secularism… will be more precisely and correctly implemented in the fundamental part of our Constitution, namely the preamble. Let it be said that “socialism” or “secularism” are indefinable. Well, if this argument were to be accepted, even “democracy” in this sense is incapable of definition because it is not understood in different ways in different countries? But we understand the kind of democracy we stand for. In the same way, we understand what “socialism” means and what “secularism” means.

More than anything else, this modification of the preamble provides the Center with valuable assistance in dealing with any difficulty that Article 19 of the Constitution relating to fundamental freedoms may pose in the face of the ban on communal holidays. Article 19 (1) (c) provides for the “fundamental right to form associations or trade unions”. This provision was rejected by the communitarians against those who advocate the banning of communal (political) parties. However, clause (4) of the same section 19 also empowers Parliament to impose reasonable restrictions on this right to form associations or unions. Specifically, it provides: “Nothing in sub-paragraph (c) of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making a law imposing, in the interest of the sovereignty and integrity of India or public order or morals, reasonable restrictions on the exercise of the right conferred by the said sub-clause. It is important to note that broader grounds have been provided for by the Constitution 42n/a (Amendment) Act 1976 by inserting Section 31-D which, according to Basu’s comment, “would delete a Section 19 Act altogether”.

It is important to note that Section 31-D states: (1) Notwithstanding anything in Section 13, no law providing for (a) the prevention or interdiction of anti-national activities: or (b) the prevention or the formation or prohibition of the activities of anti-national associations, shall be deemed void on the ground that it is incompatible with article 14 (equality before the law) or article 19 or article 31 or that it takes away or restricts any of the rights conferred by section 14 (equality before the law) or section 19 or section 31: (2) Notwithstanding anything in this Constitution, Parliament shall, and the Legislature of a State shall have no power to make laws relating to any of the matters referred to in paragraph (a) or in paragraph (b) of paragraph (1). ” Clause (4) of Article 31-D makes two important clarifications. First “Association” means an association of persons. Secondly, “anti-national activity” means any action which, among other things, “denies, questions, disturbs or seeks to disturb the sovereignty and integrity of India or which seeks…to threaten or disturb the harmony between different religions, races, linguistic or regional groups, castes or communities”.

My study also shows that proper enforcement of the Representation of the People Act 1951 could go a long way towards enforcing the ban on communal parties. This law provides for disqualification from membership of Parliament on several grounds, including corrupt practices. Section 123 (iii) of this Act provides for disqualification on the ground of “an appeal by a candidate or his election agent to vote or abstain from voting for any person on account of his religion, race , of his caste, of his community or of his language or of the use of, or appeal to religious symbols… or for having prejudiced the election of a candidate. Clearly, anyone contesting an election as a candidate for a party with a communal name, such as the Muslim League or the Hindu Rashtra Party, is exploiting the religious factor to favor their own chances of affecting “detrimentally » Those of his rivals. Its appeal can only be implicit and not explicit. Objectively, however, such a call constitutes a fraudulent practice which should result in disqualification. It has never been done.

In addition to the application of the above-mentioned provision regarding “corrupt practices”, two additional measures could be taken. First, the scope of the words “corrupt practices” in the Representation of the People Act 1951 could be widened to separate religion from politics. Specifically, the use of religious places or religious funds or religious symbols could be treated as a fraudulent practice. Certainly, it would not be easy to prove the use of religious funds by a candidate, in the current state of things. But the difficulty could be overcome by reviewing the law on polling fees. Secondly, disqualification is also attracted if a person is convicted for certain criminal offences. We could add to these criminal offenses as well as broaden the scope of existing offenses to effectively hit communal parties. Currently, anyone convicted under Sections 153-A, for example, is disqualified. This section concerns the promotion of enmity between different groups on the grounds of religion, race, place of birth, residence, etc. and the performance of acts detrimental to the maintenance of harmony.

That’s not all. We could also ban municipal parties by doing something else that I have been advocating for many years as part of a healthier democratic system: a full-fledged law for political parties, like in the Federal Republic of Germany. Such a law could provide effective registration of political parties – much more than formal registration with the Electoral Commission, as is currently the case. Community or caste parties could be denied registration. However, there is no substitute for the political will or character and determination needed on the part of the government of the Center to eradicate the evil. India’s Prevention of Terrorism and Disruption Act is one of the strongest laws on the subject. Yet this has not helped quell terrorism. Defects of a national nature cannot be eliminated by legislative means. In the final analysis, the reconstituted National Integration Council must be clear on the fundamentals. Either we are for secularism or we are not. We only invite disaster if we continue to ask the fundamental question and engage in moralizing quackery.

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