Laws And Judiciary: A Report Card of Modi Government’s Performance
Modi govt had promised ‘minimum government, maximum governance’ but promulgated more than 50 ordinances.
Law is everywhere from cradle to grave. Government has the monopoly of law making and that is why less than half a dozen private members’ bills were passed in last seventy years. In democracy, sovereign people have a right to information as to the performance of the government so that they are enabled to make a correct choice about renewing their consent or withdrawing it.
Since law making is the primary function of the government, it is in the fitness of things to examine Modi government’s performance in terms constitutional amendments, laws enacted, Bills introduced but which could not be passed and Ordinances promulgated by it. Similarly, government-judiciary relationship is equally important for a successful democracy.
During last five years, five constitutional amendments were passed. The 119th constitutional amendment of 2015 about the exchange of enclaves was initiated by the Congress-led government in 2013. Similarly, the 122nd constitution amendment on GST too was in the offing for long and a Bill was introduced in 2011 but it was the BJP that has been opposing it. Strangely, alcohol and petroleum products have not been covered by the new GST regime.
The 121st amendment on NJAC, 2014 was to give a definite role to the government in the appointment of judges. Of course collegium’s decisions have been as fluctuating as English weather yet since the government is a party to 80 per cent disputes, ideally it should not have any say in the selection of judges. Supreme Court eventually struck down this amendment as violative of basic structure of constitution. Modi government deserves credit for giving constitutional status to the National Commission for Backward Classes by the 123rd constitutional amendment. It was originally established as a statutory commission in 2013.
Also Read: 124th Amendment To The Constitution
The most important amendment of Modi government however came towards the end in January,2019 when by the 124th amendment, a new provision of 10% reservation in favour of economically backward classes was made. This initiative too was neither novel nor innovative. Such a reservation, notified by an executive order by the Congress government in 1991, was struck down by the Supreme Court in Indira Swahney (1992). Even extension of this reservation to private sector is also not new as congress did provide for it in 91st amendment of 2005. But the Supreme Court had not yet given an authoritative approval and kept this issue open in Ashok Thakur(2008). A five judge bench of the apex court will ultimately examine the constitutionality of this amendment. The court has to see whether social backwardness is necessary prior to the grant of reservation.
Several new laws were enacted by the Modi government. Though unlike UPA governments that had enacted several entitlement laws like right to information, right to food, right to education, right to fair compensation on land acquisition, protection of children from sexual offences, protection of women from sexual harassment, street vendors, manual scavenging etc., Modi government did not enact too many entitlement related laws.
The Insolvency and Bankruptcy Code, 2016 was the most important reform of Modi government though passed in great haste like the Company’s Act of 2013. As a result, both the laws underwent amendments in number of provisions. The new code provides for prompt and one-stop solution to facilitate resolution of insolvencies. The code tries to bring down the cost and time in liquidation. But the code does not try to revive failed businesses but rather ensures payment of secured creditors.
The controversial Aadhaar (Targeted Delivery of Financial & other Subsidies, Benefits and Services) Act was passed in March 2016. Few controversial provisions of the Act were struck down by the Supreme Court in Aadhar judgment in 2018. The Bill was strangely treated as a Money Bill so that Rajya Sabha is by-passed where government did not have the majority. In a shocking verdict, Supreme Court approved such a classification. Similarly, the Bill about Tribunals was not treated as an ordinary Bill. This has set a dangerous precedent for future as the Lok Sabha speaker will always be from the ruling party and his office can now be used by the government to convert India into a unicameral legislative system. The Supreme Court, even in Aadhaar judgment held that Speaker’s decision is subject to judicial review. In any case the Rajya Sabha is an integral part of our federalism which is the basic structure of the constitution.
Modi government also used the Budget of 2017 to provide for the controversial electoral bonds. The scheme is clearly aimed at concealing public scrutiny of the identity of corporates donations to the political parties. BJP has been the primary beneficiary of this scheme. Supreme Court is examining the validity of these bonds. Modi government also amended the Foreign Contribution (Regulation) Act,2010. The amendment exempts political parties from any scrutiny of foreign funds received by them from 1976.
The new disability law replaced the Disability law of 1995. Disability Act of 2016 introduced by the congress government in 2013 was quite regressive and Modi government accepted most of the suggestions of activists and experts while enacting the new disability law. It not only included several new disabilities but also enhanced reservation from 3% to 5%.
The new Juvenile Justice (Care & Protection of Children) Act, 2015 replaced the JJ Act of 2000. In a highly regressive move this, law goes against our international commitments under the United Nations’ Child Rights Convention. It provides for the trial of children between16 to 18 by the adult courts. Children need adult guidance not the evil company of habitual and hard-core criminals. Putting children with adults is self-destructive and self-defeating. We are now following Saudi Arabia and Sudan in punishing children as adults.
We have third largest population of people with AIDS yet there was no law for them. The much awaited HIV Act was finally passed in 2017. The progressive law prohibits segregation of HIV positive people and prohibits discrimination against them or those who are living with them. It provides for informed consent and confidentiality about their treatment. No test can be done without their consent. No person shall be compelled to disclose his/her HIV status except with informed consent.
Amendments in Existing Laws
Even though Dalit atrocities have been quite frequent in the last five years yet government deserves appreciation for amending the SC/ST Act,1988 enacted by the congress government and including new crimes like garlanding SCs/STs with footwear, compelling them to dispose or carry human or animal carcasses or to do manual scavenging or abusing them by caste names in public or imposing or threatening their social or economic boycott etc.
In a welcome move, Modi government amended the Delhi Special Police Establishment Act in November, 2014 and provided for a selection committee which includes Prime Minister, Chief Justice of India or a judge nominated by him and leader of opposition in Lok Sabha for the appointment of Director, CBI. But the government, in spite of Gauhati High Court’s judgment questioning the legality of CBI, failed to provide a statutory basis to the CBI. Similarly, government did not press for amendment in Lokpal law to make leader of single largest party as member of the selection committee.
The revolutionary Right to Education Act, 2009 that prohibited detention of any student below class VIII was amended to provide for detention after a student fails in class V and Class VIII. This step also reflects poor understanding of education as it will be not only demotivating but also lead to higher drop outs.
Enhancement of punishment lowers the crime rates is a dated thinking and has not been proved in any empirical research. BJP unfortunately still believes in deterrent theory and therefore it amended the Indian Penal Code and enhanced the minimum punishment for rape from 7 years to 10 years. For rape of girl below 12 years of age, minimum punishment can now be 20 years or life imprisonment or death. The other criticism of new amendment is that minimum punishment in case of rape of young boys has not been enhanced.
In a progressive move government brought in Personal Laws(Amendment) Bill in the last session of Lok Sabha which dropped leprosy as a ground of divorce.
Modi government had promised ‘minimum government, maximum governance’. But an excessive use of extraordinary provision of Article 123 has proved that BJP is no different from the Congress. More than 50 Ordinances were promulgated in the last five years. UPA-II had promulgated only 25 Ordinances. In fact, the Modi government started its government by promulgating an Ordinance amending the Telecom Regulatory Authority of India Act to facilitate appointment of Nripendra Mishra as Principal Secretary, PMO. The original Act had prohibited employment by the government of a former chairperson or whole time member. Ideally laws should not be passed keeping in view just one individual. Show me the man, I will show you the law is negation of rule of law.
Though the Supreme Court in 2017 had again reiterated that repromulgation of Ordinances is fraud on constitution and Article 123 is not a source of parallel legislative power yet a number of Ordinances including on triple divorce, land acquisition, enemy property etc. were repromulgated several times. The government also ended its term with number of ordinances.
Overturning of Judicial Judgments
The BJP government which has been time and again referring to overturning of judgment in Shah Bano(1985) by the Rajiv Gandhi government, itself passed a number of laws to overturn Supreme Court judgments. Thus SC/ST judgment was overturned by amending the SC/ST Act to remove the requirement of any enquiry prior to registration of FIR; Enemy Property (Amendment) Act, 2017 made all transfers by the enemy to other persons as void. The amendment prohibits civil courts from entertaining any dispute with regard to enemy property. The amendment is problematic as it provides no alternative judicial forum. The latest Ordinance overturns judicial verdicts on ‘department’ as a unit of reservation. Even Aadhar judgment has been overturned through an Ordinance promulgated on March 2, 2019.
Even on matters like Homeopathy, arbitration centre in Delhi, deposit schemes etc. ordinances were promulgated after the last cabinet meeting.
Bills That Lapsed
The most controversial was the Citizenship Bill that clearly discriminated against Muslims and was clearly violative of Article 15 which prohibits discrimination only on the basis of religion. It led to large scale protests in North-East.
The Transgender Bill, 2016 was passed by the Lok Sabha on December 17,2018 and was severally criticised by the activists as the Bill emphasised the biological dimension of transgender identity; conflated ‘sex’ with ‘gender’; weaved a medicalised discourse on both and unfortunately set ‘male’ and ‘female’ bodies as the normative standards. Aadhar Bill passed by Lok Sabha in 2019 too has lapsed but government brought it back as an Ordinance.
Government Judiciary Relationship
Modi government left no one in doubt that it wants a substantial role in the appointment of judges. It did not clear a number of names in spite of the collegium’s reiteration; it rejected some names; it delayed few elevations like that of Justice KM Joseph and has not yet cleared the MoP sent to it by the collegium in March, 2017. Then CJI TS Thakur had to publicly cry on the slow clearance of recommendations of collegium.
Four senior most judges came out in January, 2018 to say that democracy is in danger and then there was an unfortunate move to impeach the CJI. Rajya Sabha Chairman rejected it by relying on a dissenting opinion.
In spite of all this, to be fair, Modi government richly deserves the credit of appointing highest number of judges. Some 24 judges were appointed to the apex court and about 200 judges were confirmed/ appointed in the various High Courts.