When laws subvert the Constitution

Print edition : April 23, 2021

A protest against the triple talaq Bill in Mumbai on August 2, 2019. Photo: Emmanual Yogini

A solidarity against inhuman and unconstitutional laws is a democratic imperative in present-day India.

Constitutional democracy fundamentally differs from conventional democracy. Though majority matters in both, in the former, the opinion of the majority is subjected to constitutional limitations. In a way, one of the main objects of modern constitutions is to protect the nations from majoritarian onslaught. This, in a way, is an ethical check. It is the majority that speaks though their representatives in the legislatures. Legislation should pass the constitutional muster.

Politics of Legislation

A legislation reflects an ideology, an attitude, and an approach. In India, between 1952 and 1984, governments at the Centre enjoyed a clear majority. During this period, the country saw a series of enactments, including progressive ones that led to the nationalisation of banks and abolition of the privy purse. Politics never remained static. So is the situation with the vision and philosophy of political parties. The same political party that attempted certain radical reforms under the label of Nehruvian Socialism attempted to suspend the personal and political freedom of citizens during the national Emergency. Again, ironically yet rightly, the very same political party is now pleading for freedom guaranteed by the Constitution. The present oppressor was a major partner of the Janata coalition against the Indira Gandhi regime, the Bharatiya Janata Party (BJP), which was then Jana, Sangh, and its allies.

One finds a qualitative change in legislative attitudes during a short period of the United Progressive Alliance (UPA, 2004-2014). People-centered laws such as the Mahatma Gandhi National Rural Employment Guarantee Act, 2005; the Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; the Right to Education Act, 2009; the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; and the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014; were all promulgated during the UPA period. Make no mistake, even during those times the Centre had tried to suppress criticism and crush public protest by invoking draconian laws. Nevertheless, there were egalitarian streams in the process of law making as reflected in the pieces of legislation as stated earlier. Also, there was a democratic space to protest, agitate and articulate against the follies of power, which in turn placed the UPA period relatively at a higher scale of deliberative democracy.

Many of the major laws enacted under the present regime, however, show a clear ideological shift with an aggressive Hindutva agenda blended with capitalist ethos which are centrist and absolutist in terms of power, and divisive and destructive in terms of societal interest.

After 1984 (when the Congress swept to power in the parliamentary election held after the assassination of Indira Gandhi), it was only in 2014 that single party dominance was resurrected at the Centre, with a fundamental change in ideology, with the BJP coming to power. It differed from the single-party rule and from the flexible and federal politics of the coalition regimes of the earlier decades. This shift was not only due to majoritarianism per se but also due to doctrinal reasons that can have devastating consequences.

Also read: Federalism in peril

K.K. Kailash of the Department of Political Science, University of Hyderabad, says: “Both the Congress and the BJP are closet centralisers and reluctant federalists, with one significant difference. While both justify centralisation in the name of economic development and national unity and integrity, for the BJP there is also an ethnic, religious or cultural dimension at play” (The India Forum, March 5, 2021). Kailash rightly indicates that they vary drastically in their approach to pluralism. But on a closer examination, one finds that the difference is not peripheral or external. It is extremely distinct inasmuch as the dispensation at the Centre after 2014 does not believe in the ethos of the Constitution or its institutions. Hindutva forces strengthen its regime and weaken its opponents with a well-designed project started almost a century ago, and, in the process, great damage has been caused to the constitutional praxis in India. The damage caused to institutions ranging from the Cabinet to the courts, to Parliament, and to informal institutions such as the media, has been enormous and probably irreparable in the near future.

An examination of the pieces of legislation brought in by the National Democratic Alliance (NDA) reveals a systematic, conscious, and constant effort to “deconstitutionalise” the country, for which legislation has been used as a major device. Many such enactments were manifestations of far-right politics rooted in Hindutva ideology and crony capitalism. The statute on instant triple talaq (The Muslim Women (Protection of Rights on Marriage) Act, 2019) was ostensibly partisan. It was targeted at a particular community. The fallacy of the law was self-evident. It tried to “invalidate” triple talaq, which was already invalidated by the Supreme Court in Shayara Bano (2017) by way of a majority judgment. By criminalising a void action, the Act, in certain situations, even tries to prevent the divorced wives from getting maintenance from their former husbands who could be incarcerated for the offence of triple talaq as defined, for a period of up to three years and pay a fine, as per Section 4 of the Act. It also had the effect of instigating the clever husbands to desert the wives, without leaving a formal proof of divorce, in order to escape the clutches of the law. Thus, the law did not even serve the Muslim women’s interest, despite its populist gestures. Although the law was unimaginative and “foolish” in the legal sense, it clearly had a shrewd political content, that subserved the Centre’s agenda. The Citizenship (Amendment) Act also clearly attempts to segregate people on communal and religious lines. They are clearly antithetical to the equality clauses in the Constitution. They negate the preambular notions of dignity and fraternity.

The State laws on ‘love jehad’ also imagine a non-existent thing, namely, planned and targeted conversions for the purpose of marriage so as to boost religious or even fanatic interest. On April 1, the Gujarat Assembly passed the Freedom of Religion Act, 2003, amendment Bill criminalising '‘love jehad’. The offences enumerated are non-bailable. Forcible conversion through marriage or allurement can lead to imprisonment for a term of three to 10 years and a fine of up to Rs.5 lakh. The way in which similar laws are designed and invoked in Uttar Pradesh, Madhya Pradesh, Uttarakhand and Himachal Pradesh tells a disheartening saga of torturing young couples for their personal relations and choices. For political gain, the dispensation always tries to create and perpetuate a communally divided society. Also, it intrudes into individual decisions and personal affairs. This trend is unprecedented in the legislative history of the country.

Also read: The new Delhi NCT amendment bill

The abrogation of the special status to Kashmir in August 2019 has negated the historical reasons behind Article 370, which the original Constitution tried to understand and accept. The three contentious farm laws (The Farmers' Produce Trade and Commerce (Promotion and Facilitation) Act, the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act), and the Essential Commodities (Amendment) Act passed in 2020, too, were non-discursive, centrist and pro-capitalist on their face. They threatened not just the farmers and their dignity, but the very food security in the country, by abolishing the conventional network created by the Food Corporation of India. Decisions for the massive sale of public properties ranging from coal mines to airports were all supported by majoritarianism at the Centre. The Cabinet too, like Parliament, perpetually and intentionally avoided discourse. Obedience and unilateralism are the hallmark of centrist forces.

Undoing electoral democracy

The Centre’s legislative attempt by way of introducing in the Lok Sabha on March 15, 2021, the Government of National Capital Territory of Delhi (Amendment) Bill, 2021, is in continuation with its project to subvert the tenets of federalism. But, more significantly, it contains an attack on the country’s electoral democracy. In Government of NCT of Delhi vs Union of India and others (2018), a Constitution Bench of the Supreme Court clarified in its judgment on July 4, 2018, that the “Lieutenant Governor (of Delhi) is an administrative head in the limited sense” and that “he is bound by the aid and advice of the NCT [National Capital Territory] government in areas other than those exempted”. The court said that “if a well-deliberated legitimate decision of the council of ministers is not given effect due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated”. This was how the court interpreted the purport of Article 239AA of the Constitution inserted by the Constitution 69th Amendment Act, 1991, with effect from February 1, 1992. Clearly, the very purpose of the special status given to Delhi as clarified by the court was to ensure democratic governance on the basis of the people’s mandate as reflected in the Assembly. The new legislation will annihilate even the limited autonomy granted to Delhi. In the matter of land, police and public order, the Delhi government did not have power, even otherwise. With the amendment, the Lieutenant Governor, literally and substantially becomes the ‘Government of Delhi’. According to the new provisions, on all matters specified by the Lieutenant Governor, his opinion should be sought and obtained by the Cabinet. This will seriously impair the tenets of cooperative and competitive federalism. On the one hand, it reduces the scope for governance by the elected Cabinet in Delhi, that in turn diminishes its capacity to meaningfully assert itself with the Centre and other States by maintaining a healthy and dignified relationship. On the other hand, the new law reduces the State’s autonomy and its potential to develop itself by reformative strategies. Competitive federalism, in the correct and positive sense, also underlines this potential, which if taken away, will make the Assembly election meaningless.

In recent times, even without any particular legislative measure, Governors from Bengal to Puducherry, as nominees of the Centre, have meddled with the day-to-day decisions of the elected governments. In the normal course, in full-fledged States, Governors are only titular heads. As Dr B.R. Ambedkar said during the Constituent Assembly debates, “The Governor under the Constitution has no functions which he can discharge by himself… (and he) is bound to accept the advice of the Ministry.” This principle, which was eloquently reiterated by the Constitution Bench of the Supreme Court in Shamsher Singh (1974) should apply to Delhi also, especially after the insertion of Article 239AA of the Constitution in 1991. V.S. Ramadevi, the former Chief Election Commissioner and former Governor of Karnataka, once quoted Prof. R. Venkata Rao to explain the “power” of the Governor: “Useless when inert and dangerous when active.” In a different context, the amendment to the Government of National Capital Territory of Delhi Act, 1991, makes it democratically dangerous, for, practically, the elected government cannot do anything without the nod of the Governor.

False claims and oblique motives

The historical, geographical or administrative specificities of Delhi cannot take away the democratic value and relevance of an elected government there. The amendment to the Delhi statute nullified the top court’s verdict which, inter alia, read the relevant Articles of the Constitution, i.e. Article 239AA (3) (a) and Article 239AA (4) conjointly, and said that “the executive power of the Government of NCT of Delhi is coextensive with the legislative power of the Delhi legislative Assembly” and that “the Constitution confers executive power on the Council of Ministers over all those subjects in respect of which the Delhi Legislative Assembly has the legislative power”. This principle is now substituted by way of a statutory (not constitutional) amendment. Paragraph 3 of the statement of objects beneath the Bill unconvincingly and artificially relied on the Supreme Court’s judgments of July 4, 2018, and February 14, 2019, and said that the new amendment was to “give effect to the interpretation made by the Hon. Supreme court”, whereas what happens is a clear negation of what the court said in its pronouncement in 2018. Again, in paragraph 4 of the statement, the claim is that the Bill “will promote harmonious relations between the legislature and the executive, and further define the responsibilities of the elected government and the lieutenant Governor, in line with the constitutional scheme of governance of National Capital Territory of Delhi, as interpreted by the Hon. Supreme Court”. Not only that this is untrue, but it is also opposite to the truth. Delhi Chief Minister Arvind Kejriwal has already protested against the legislation by taking the issue to the streets, an event which no longer has the characteristics of a ‘harmonious relation’ that the text of the law claimed to attain. This inversion of truth, that too in a piece of statute, is alarming. False claims and oblique motives in the process of legislation are grey areas for any student of constitutional law as the law presumes that a statute made by the legislature is valid, and a legislation cannot be vitiated by malice.

Also read: Challenge to democracy

The Supreme Court in K. Nagaraj and others vs State of Andhra Pradesh and others (1985) held that in the matter of legislative power “the argument of mala fides is misconceived”, and that “the legislature as a body cannot be accused of having passed a law for an extraneous purpose”. This position was reiterated in Gurudevadatta (2001) and most recently in Manish Kumar (2021). This conventional principle does not appear to be sensible in India’s new legislative or political landscape. Constitutional principles are feasible only when there is a political climate capable of sustaining constitutionalism.

A few other recent legislative ventures have the common characteristics of negating one or other basic feature of the Constitution. The Amendment to the Juvenile Justice (Care and Protection of Children) Act, 2015, vests the executive magistrates with judicial powers in the matter of adoption of children. This nullifies the idea of separation of power at the most personal and grass-root level. There was turmoil and protests in the Bihar Assembly when it passed the Special Armed Police Bill, 2021, on March 23. The new law grants the Bihar Military Police (BMP) the power of the Central Industrial Security Force (CISF) to conduct search and arrest without a warrant issued by a competent court. The power and discretion of the judiciary are curtailed since the court cannot take cognisance when there are accusations against a special armed police officer, unless there is an enabling report prepared with the previous sanction of the government. The new Act extends the Union government’s police power to the State. A police state is thus created by the State legislature, presumably at the behest of the Centre.

Such moves are accelerated in a situation where the judiciary fails to scan the laws and verify their constitutionality fairly, vigilantly and objectively. The rulers often ask the protesters to challenge the laws in court, as it happened in the case of the farm laws. Legislations need public scrutiny. The ultimate solution lies with people’s peaceful movements, the fifth estate. A solidarity against inhuman and unconstitutional laws is a democratic imperative in present day India. As memorably stated by Thomas Jefferson, “when injustice becomes law, resistance becomes duty”. We cannot afford to ignore the ‘argumentative Indians’ since we need to take legislation seriously and we cannot leave them to legislators alone.

Kaleeswaram Raj is a lawyer at the Supreme Court of India.

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