Acts in haste

Published : May 27, 2015 12:30 IST

Congress supporters at the Kisan-Khet Mazdoor rally against the land acquisition Bill at Ramlila Maidan in New Delhi on April 19.

Congress supporters at the Kisan-Khet Mazdoor rally against the land acquisition Bill at Ramlila Maidan in New Delhi on April 19.

IN its first year in office, the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government secured the passage of 30 non-money Bills in Parliament. While the number of Bills passed in just one year may appear creditable, some of them have the potential to be serious irritants in the future.

The National Judicial Appointments Commission (NJAC) Act and the Constitution 99th Amendment Act are two legislative measures that were passed by Parliament, ratified by the required number of State Assemblies and duly notified after obtaining presidential assent. The Acts have, however, not come into force because the NJAC could not be formed as the Chief Justice of India (CJI), Justice H.L. Dattu, refused to join it. Justice Dattu, an ex-officio member of the NJAC, declined to participate in the selection of two eminent persons for the six-member commission until the Supreme Court disposed of the petitions challenging the validity of the two Acts. This stalemated the formation of the commission as the two eminent members have to be selected by a committee comprising the Prime Minister, the leader of the single largest opposition party in Parliament, and the CJI. The CJI, two senior judges of the Supreme Court, and the Union Law Minister are the other members of the NJAC.

As the hearing of the petitions challenging the validity of the two Acts before the Supreme Court’s five-judge Constitution Bench revealed, the CJI’s refusal to participate in the selection is just one of the several inherent problems in the two Acts that the government did not anticipate during the drafting and passage of the Bills. There was nothing to prevent Justice Dattu from joining the NJAC as the Supreme Court refused to stay the operation of the Acts. The CJI appears to have refused for reasons of propriety: as the head of the judicial family, he did not want to be seen as even remotely influencing the course of the hearing before the bench. After all, if the bench were to strike down the two Acts for their non-compliance with the basic structure of the Constitution, it is not just the two eminent persons but the CJI himself who would suffer the embarrassment of having been briefly associated with an unconstitutional body to select judges.

As the petitioners pointed out several aspects of the Acts that subverted the independence of the judiciary and the basic structure of the Constitution by depriving the judiciary the primacy it enjoyed in the appointment of judges, the government quickly took cover and referred the case to an 11-judge bench for “an authoritative pronouncement” on the issue. The thrust of the dispute between the petitioners and the government was whether the judgment of the Supreme Court’s nine-judge bench in the Second Judges case (1993), which led to the creation of the collegium to appoint judges, required to be reconsidered as a preliminary issue by a larger bench before the current bench could decide on the validity of the NJAC. The government and other respondents (mainly the BJP-ruled States) argued that referral of the case to an 11-judge bench was a prerequisite, while the petitioners are opposed to any such referral. The bench declined the government’s plea for referral and deferred the hearing to June 8.

The government’s handling of the two pieces of legislation exposed another serious crisis: the Constitution was left with no mechanism to appoint judges and even extend the tenures of the Additional Judges in the High Courts as the pre-existing collegium system was defunct with the notification of the two Acts and the non-formation of the NJAC. As if this is not enough, the government and the judiciary will face a continuing void in the appointment process as the pre-existing collegium system cannot simply spring back to life if the court strikes down the two Acts as unconstitutional. In the event of such a situation, the government may have to introduce a fresh piece of legislation and ensure its passage and notification.

Legal observers blame the Modi government for the lack of diligence in the drafting and passage of the two Acts. According to them, the current crisis could have been averted had the opinion of the Supreme Court been sought—under Article 143 of the Constitution (power of the President to seek the advice of the Supreme Court)—on the validity of the two Bills before they were introduced in Parliament. But if the attitude of the government in the Supreme Court is any indication, it does not seem to be in favour of an early resolution of the crisis. Any delay in adjudicating the challenges to the two Acts will only weaken the judiciary further, with vacancies remaining unfilled.

Bill to bring back black money The Undisclosed Foreign Asset and Income (Imposition of Tax) Bill, 2015, is another piece of legislation that secured an easy passage in Parliament in the just-concluded Budget session. According to Nigam Nuggehalli, an expert with Azim Premji University, Bangalore, under the provisions of the Bill a person found guilty of wilfully evading taxes can expect to go to jail for a minimum period of three years and a maximum of 10 years. But he has also discovered that the Bill identifies and provides for offences and prosecutions that have already been accounted for in the Income Tax Act, 1961. To quote him: “It is hard to see what purpose this Bill serves other than to enable the current government to make a political statement that it is tough on black money stashed abroad.... the harshness of criminal sanctions has hardly had any effect on crime in other domains in India. Even in the case of tax evasion, the Income Tax Act already provides for a maximum punishment of seven years imprisonment. Increasing the maximum length of incarceration to 10 years is hardly an innovation.” With the Prevention of Money Laundering Act, 2002, already holding the field, the need for another law to deal exclusively with black money stashed abroad is considered superfluous, especially when the Modi government is committed to repealing obsolete and redundant laws.

The legal approach to black money stashed abroad is similar to the amendments the Cabinet approved on April 30 to the Prevention of Corruption Act (PCA), 1988. The proposed amendments to the PCA provide for classifying corruption as a heinous crime and awarding longer prison terms for both the bribe-giver and the bribe-taker. The proposal is to increase the minimum sentence of imprisonment from six months to three years and the maximum sentence from five years to seven years. Experts suggest that it is not the toughness of the law but how it is enforced that is the key to its effectiveness. Enhancement of punishment, they say, has often resulted in poor enforcement of laws.

On May 13, the NDA government pushed through a set of regressive amendments to the Whistle Blowers Protection Act in the Lok Sabha despite the “very vocal and well-reasoned objections of the opposition”, as one observer put it. These amendments, according to Venkatesh Nayak, an expert with the Commonwealth Human Rights Initiative, New Delhi, take away the immunity of whistle-blowers from prosecution under the Official Secrets Act, 1923 (OSA), which is part of the original Act. Secondly, they prohibit a whistle-blower from making any complaint about corruption if it relates to any of the grounds mentioned in Section 8(1) of the Right to Information Act, which relate to national security, relations with foreign states, trade secrets, intellectual property rights, investigation and prosecution for criminal offences, contempt of court, intelligence informers, trust-based relationships such as lawyer-client, doctor-patient (fiduciary relationships), Cabinet notes, and privacy of an individual. Thirdly, they prevent the competent authorities from inquiring into any such complaint, and any person from providing assistance to the competent authorities to deal with such complaints. Such amendments have led to widespread resentment among activists.

Amendments to labour laws The government has proposed to codify the labour laws, amalgamating several Central Acts. Two codes have been proposed, one on wages and the other on industrial relations. The one on wages amalgamates the Minimum Wages Act, 1948, the Payment of Wages Act, 1936, the Equal Remuneration Act, 1976, and the Payment of Bonus Act, 1965. The second code is in the form of a draft Bill on industrial relations amalgamating the Trade Union Act, the Industrial Disputes Act and other Standing Order Acts. In the words of a trade union leader, the proposals aim at making the registration of unions almost impossible, barring non-workers from becoming trade union leaders in the organised sector, and declaring illegal all strikes and imposing severe punishment for such strikes.

The proposed amendment to the Factories Act, 1948, has caused considerable concern. The Act prescribes standards for the health, safety and welfare of workers and provides for inspectors to report non-compliance with these standards, which would invite a fine and imprisonment. The proposal is to replace the term “inspector” with “facilitator”, a person who will give the employer an opportunity to make amends in case of any violation of the law; and if the employer makes amends, there shall be no prosecution. As one observer put it, “this meek and gentle treatment of offenders is at least half a universe away from fostering respect for the law that is being mooted”.

The Bill to amend the Factories Act, which is pending in Parliament, inserts a new provision, Section 92c, to compound 32 offences by employers, with impact on the health, welfare and wages of workers. The provision says that once compounded “for such amount as prescribed”, “no further proceedings shall be taken against the offender in respect of such offence”.

On May 13, the Union Cabinet approved amendments to the Child and Adolescent Labour (Prohibition and Regulation) Act, allowing the employment of children below 14 years in non-hazardous family enterprises, the entertainment industry and sporting events after school hours. The Communist Party of India (Marxist) criticised the move by saying that using poverty and the “social fabric” of India to justify the use of child labour was tantamount to punishing the child for poverty. The party expressed its concern that it would be impossible to regulate family enterprises and that it would open the floodgates to the rampant use of child labour.

Juvenile justice Concerns have also been expressed over the Juvenile Justice (Care and Protection of Children) Bill, 2014, which was passed by the Lok Sabha on May 7. The Bill permits juveniles between the ages of 16 and 18 to be tried as adults for heinous offences, and for less serious offences, only if apprehended after the age of 21. The United Nations Convention on the Rights of the Child requires all signatory countries to treat every child under the age of 18 as equal. The Bill thus contravenes the convention. It also suffers from legal infirmities as it infringes on the right to equality under Article 14 and Article 21, which require that laws and procedures are fair and reasonable. The Bill also goes against the spirit of Article 20(1) by according a higher penalty for the same offence if the person is apprehended after 21 years of age, even though he may have been a juvenile when he committed the offence. The Bill has been passed by the Lok Sabha although the Standing Committee which examined it cautioned that it was based on misleading data regarding juvenile crimes and violated certain provisions of the Constitution.

Land acquisition Unable to secure the passage of the controversial Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (LARR) Amendment Bill, 2015, in Parliament, the government re-promulgated the lapsed Ordinance on April 3, contravening the tenets of democracy.

The amendments to the LARR Act, 2013, make the acquisition of multi-crop land possible under the five new sectors that are exempted from seeking consent and social impact assessment. The 2013 Act was perceived as anti-industry and difficult to implement. Desperate to push its “make in India” agenda at any cost, the government generously widened the ambit of land that could be acquired for a public purpose, which included industrial corridors. What it did not anticipate was the groundswell of protest from farmer groups and the opposition. The Amendment Bill has been passed by the Lok Sabha and referred to a 20-member Select Committee chaired by S.S. Ahluwalia, BJP Member of Parliament.

In September 2014, the Modi government released its draft Bill on road transport and safety. The Bill proposes the setting up of a Vehicle Regulation and Road Safety Authority at the national level with powers to recall vehicles not adhering to a required set of standards. An offender shall be allocated penalty points in addition to a fine or imprisonment as the case may be, and according to Schedule II of the Act, if the cumulative total of the penalty points crosses the limit of 12, the driving licence of the offender shall be suspended for one year. If a driver whose licence has been suspended once again accumulates 12 points, his/her driving licence shall be cancelled for five years.

Under Schedule III, the fine prescribed for the first offence is Rs.2,500 and for the subsequent offence is Rs.5,000. Other specified offences invite fines ranging from Rs.10,000 to Rs.1,00,000 or imprisonment for a term of three to six months or both. Accidents resulting in the death of a child will lead to a fine of Rs.3 lakh and imprisonment for a term not less than seven years, while the death of an adult would invite a fine of Rs.1 lakh and imprisonment of not less than four years. Experts say that the proposed fines are about 10 times higher than what they should be. It is suggested that the penalties be reduced drastically and jail terms be limited for serious criminal lapses to prevent a situation whereby people are discouraged from reporting accidents.

While it is reported that a subsequent draft Bill is likely to reduce the fines and the terms of imprisonment for various offences, trade unions have expressed concern over the impact of the draft Bill, if enacted. The BJP’s ally in Tamil Nadu, the Pattali Makkal Katchi (PMK) has described the Bill as black legislation favouring corporations. Trade unions in Tamil Nadu organised a one-day strike against the Bill on April 30.

It is also feared that the Bill may infringe on federalism as it has provisions regarding registration and fitness of vehicles, which have so far been the responsibilities of the State governments. There is serious concern that the proposed authority will operate through private companies and that vehicle manufacturers will have the power to register vehicles, which may result in hefty registration fees.

Despite the many controversies surrounding the Bills, passed and proposed during the past one year, there has been no proportionate effort on the part of the government to address the concerns expressed by civil society. Instead, it appears to be leaving these controversies to be adjudicated by the judiciary, making the latter more powerful by default.

This is the paradox of the first single-party majority government at the Centre in many years.

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