The Bizarre Process of Law Making in India

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[ DISCLAIMER–I welcome the imperfect amendment to the Juvenile Justice Act approved by Parliament on 22nd October. Not because of what Mr. Subramaniam Swamy says on TV or what Nirbhaya’s poor mother says at India Gate, but because of what the the NCRB (National Crime Records Bureau) says: in 2014, of 2144 rapes committed by juveniles 1488 or 70% were perpetrated by those in the 16-18 age group; of 1163 murders by juveniles, as many as 844 or almost 75% were committed by youth in this age group. It was incumbent upon society, therefore, to revoke the immunity from punishment for such heinous offences that this age group enjoyed so far. But I do not agree with, or approve of, the manner in which this legislation was hurriedly passed.]

The primary function of Parliaments anywhere is to formulate and approve laws for the betterment of a country. It is further expected that since such laws would inevitably affect the lives of millions of citizens, and since they cannot violate any constitutional provisions, Parliament would subject such laws to the most stringent scrutiny and debate before passing them. In the India of today both these presumptions would be misplaced and wrong. The amendment to the JJ Act establishes this unequivocally.

The Lok Sabha and the Rajya Sabha have, over the last few years, been failing in their primary function of legislating laws that have an effect on the vitals of our society. Both during UPA- II and the first two years of the NDA govt. Parliament has been used more for settling political scores, posturing for elections and trading charges than for any constructive legislative work. The important work of legislating has been outsourced to either the Courts or to Jantar Mantar.

Both our Houses are in a chronic state of inertia and congenitally deaf to the demands and needs of of a rapidly changing society. They wake up only when the voices from Jantar Mantar or India Gate, combined with the bursting of teargas shells, come too close to their privileged comforts, or when the censures from the Supreme Court can be ignored no longer. Parliament’s legislative record over the last few years bears ample testimony to this.

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The laws relating to rape in the IPC were amended only after the unprecedented protests in 2012 led to the recommendations of the Verma Committee. Section 66 A of the Information Technology Act, long used by all governments to intimidate and browbeat those who thought differently, was given the quietus only after it was struck down by the Supreme Court. The perversity of treating attempted suicide as a criminal offence was emphasised so strongly by the courts that the Government has had no other option but to prepare an amendment to the relevant section of IPC to decriminalise it. The Whistle Blowers’ Act has been drafted under the constant and not so gentle prodding of the Supreme Court again. (Incidentally, Parliament has yet to pass these Bills). The same Court, having waited for an eternity for Parliament to provide for disqualification of convicted MPs and MLAs, finally had to wield the hatchet itself and made Mr. Lalu Yadav the prototype of a model which should have a good run in the days to come. And today we learn that the Govt. has endorsed a private member’s Bill- the Right of Transgender Person’s Bill 2015- which seeks to recognise that these persons too have rights, but only after the Supreme Court’s ruling that they constitute a legitimate third sex left them with little choice. The amended Juvenile Justice Act is thus only the latest link in this sorry chain of legislative indolence: its birth was not natural, but induced by protests at India Gate that had the government seriously worried about a repeat of the Nirbhaya tumult three years ago.

The sloth is so deep seated, however, that notwithstanding constant demands from civil society and persuasive suggestions from the Judiciary, many other societal reforms are held up because Parliament just can’t be diverted from its daily dose of blood sports in both Houses. Homosexuality is yet to be decriminalised even though the Delhi High Court in a judgement that does it great credit has held it to be not only legal but also natural and the Supreme Court has hinted that Parliament should repeal this pernicious law. Defamation continues to be a criminal offence even though the press and legal experts have asked that it be limited to a civil cause of action only. Parliament is yet to spare the time to consider making laws for Surrogacy or Physician Assisted Suicide or the Living Will or protection of Internet privacy- concepts which are pushing the frontiers of modern medicine and jurisprudence all over the world, but which have no place in our Parliamentarians’ world of subsidised bungalows, cheap mutton cutlets, free air travel and foreign jaunts. They will bestir themselves only when another Anna Hazare appears at Jantar Mantar or another five judge bench of the Supreme Court pronounces on a matter or another Aruna Shaunbag dies after forty years of a vegetative existence.

Paradoxically, however, Parliament (and state legislatures) are very quick to pass laws when it comes to granting or extending all kinds of reservations and quotas to various communities and classes, even when they clearly violate the red line of 50% set by the Supreme Court. This too, of course, is done under the pressure of violent agitations: I am always amazed at why our legislatures respond with such alacrity to one kind of pressure but not to the other?!

It is possible that I am being too harsh on our elected “leaders” (a misnomer, actually, because they have ceased to lead a long time ago, and now prefer to be led by the nose by populism or herded by party whips). Maybe, just maybe, they have discovered the perfect formula for political survival: avoid all controversial issues, don’t take a position on any subject which you can’t understand or don’t have an interest in (which is most subjects), leave all the hard work and unpleasant decisions to the Courts, and if all else fails, come up with an instant “2 Minute Statute” not unlike the 2 Minute Maggi Noodles. Conversely, when it comes down to

vote bank politics, it perhaps makes equal sense to surrender all sense of constitutionality and pass the dubious legislation, leaving it to the courts (who else ?) to strike them down.

This perverse logic may be politically sound but it does no credit to our legislatures. It also contains many inherent dangers. For one, when you make laws under pressure the resultant legislation is likely to be defective; particularly in laws that are penal in nature such flaws can do great injustice to individuals and transgress their freedoms. In recent times such distortions have become evident in the laws relating to domestic violence, rape, divorce, atrocities on scheduled castes, to mention just a few- even the courts have now started pointing these out. Criminal laws, in particular, need to be thoroughly studied, analysed and debated, both within and outside the Legislatures. This cannot happen if Parliament functions under the threat of lynch mobs and apoplectic TV anchors. The amended JJ Act is a case in point. While the lowering of culpable age from 18 to 16 years is welcome, there is a lack of clarity on many issues: what constitutes a ” heinous crime”? Are all crimes that carry a sentence of seven years to be treated as a heinous crime? If so, then is the amendment also applicable to non-violent crimes that carry a sentence of seven years? If yes, then does this correspond to the intent of the legislature? The entire responsibility of treating juveniles between the ages of 16-18 years has now been put on the Juvenile Justice Boards, but do all districts have such Boards (most do not)? Does the system have enough psychiatrists/psychologists/counsellors to assess the culpability of these juveniles (it most definitely does not) ? Such, and many other, doubts should have been addressed before the Bill was passed, but this is no longer the norm in our Parliament. Our MPs will either not consider any legislation, or if they do, then they will pass them post haste without any discussion! Such extremes of perversity are hard to fathom.

We would all do well to remember that rule of law is the bedrock of democracy. But it does not come cheap – it has to be sustained and preserved, with toil and tears, by every successive generation. We have been fortunate to have received it as a legacy by the stalwarts and visionaries who have come before but it is high time that our lawmakers stopped squandering it.

Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains. He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls. He blogs at http://avayshukla.blogspot.in/

1 Comment

  • Nodnat says:

    Interesting and insightful read. I think it is not just in legislation but also in implementation of laws that the Judiciary has been doing a sterling job. But for the courts, forest and wildlife conservation laws for instance, would actually have been repealed if our ‘enlightened’ MPs & CMs had their way. Long ago I read somewhere that as the electorate expands, the people who get elected have to be progressively quite (and more) mediocre (least common denominator types) in order to ‘appeal’ to a largely uneducated, non-discerning or ‘committed’ voting population. The losing of nearly ALL the outstanding candidates put up by AAP during the 2014 Lok Sabha elections are a case in point. So one perhaps has to reconcile to having our Parliament and State Assemblies consist mostly of elected third raters or crooks or both. Now expecting these fellows to read and understand and consider and debate before they “legislate” would be asking for too much. Is it then any wonder that some eminent leaders (service before self types) have expressed preference for a Presidential form of government, where the CEO does not have to necessarily appoint his/her team or ministers from among some elected crowd of hopelessness. Though we often talk and cite India’s great middle class with money and education and as good as any in the world, it is very intriguing and amazing indeed how as a people in a democracy we have been and are being made such a colossal fool by these third rate politicians!

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