“Inquiries into congressional motives or purposes are a hazardous matter,” said Chief Justice Warren in US versus O’Brien (1968). The statement represents the conventional reluctance of the constitutional court, as the umpire of democracy, to assess the motivation of legislature in deciding the validity of an enactment. According to this line of thinking, the constitution cannot be used as “an instrument for punishing the evil thoughts of members of the political branches” as John Hart Ely put it.
The tyranny of the majority was so manifest in the intent and content of almost all the recent legislative attempts in the Indian Parliament. The ‘evil thoughts’ were writ large in criminalising a judicially invalidated civil wrong, that too for one particular community; in ‘centralising’ the Right to Information Act; and in the equipping of the Centre with the power to label anyone a terrorist.
Therefore, the Indian courts may have to deviate from the habit of attributing good faith to the legislations when called upon to decide the constitutional validity of the recent laws made, unmade or remade by Parliament. The courts will have to deal with unconstitutional motivations in legislations as a significant topic in the process of judicial review.
Any legislation is bound to reflect a political ideology. A comparison of the recent legislative ventures with the laws made by the Parliament earlier would demonstrate a clear shift from the process of democratic law-making to populist and centralising legislations.
The Indian Parliament has a great legacy of statutes dealing with the right to free and compulsory education (2009), the right of the street vendors (2014), tribal land rights (2007), the right to food security (2013), citizens’ rights against arbitrary land acquisition (2013), etc. The incorporation of the word ‘socialism’ in the preamble of the Constitution in 1977 had its statutory resonances, though belatedly. Now, one finds a tragic fall in the quality of legislative content, thanks to the advent of the far right at the helm of political bodies.
Everything was, however, not fine with the earlier regimes. Ronald Reagan famously said, “as government expands, liberty contracts”. Draconian legislations are generally the manifestations of an aggrandising State. Those happened during the Emergency and even thereafter. The Congress party also owes an apology to the country for their legislative misadventures and misdeeds. Laws like TADA and POTA victimised thousands of activists, journalists, lawyers and political leaders across the country. Many of them were ultimately found to be innocent by the competent courts. It is shocking that the ‘party with a difference’ has followed suit and has placed itself on the wrong side of history.
The political and constitutional reforms committee of the House of Commons in the UK published a report titled “Ensuring standards in the quality of legislations” (2013-2014). It said that “the primary reason for poor-quality legislation was political”.
It quoted British MP Nick Raynsford, who remarked that political pressure reduces the law-making exercise to an “evidence of action” or “test of a government’s political standing.” In the process, the long-term consequences of the law on the public at large are widely ignored. The report underlines the significance of the Legislative Standards Committees in ensuring good quality laws and pleads for pre and post-legislative scrutiny.
Like the 103rd Constitutional Amendment Act, which contemplated economic reservation with a 10% quota exclusively for the forward communities, the recent legislations on triple talaq and on the Right to Information needed pre-legislative deliberations and constitutional scrutiny.
When the validity of triple talaq itself was the subject matter of the Supreme Court judgment in Shayara Bano (2017), its criminalisation required a serious deliberation. The dilution and annihilation of the citizen’s right to know needed an examination in the light of the Supreme Court’s verdicts on Right to Information, mainly in the Raj Narain (1975) and PUCL (2003) cases.
These legislations, like the one on 10% quota for the economically backward, are also likely to be scanned by the top court. The quality of the enactments, which could not get the benefit of examination by parliamentary committees, may be exposed in adjudicative process. Ultimately, it is the constitutional test that would possibly rescue the country from reckless legislations with draconian content.
The letter by the 17 opposition parties to the Rajya Sabha Chairman says that in the 14th Lok Sabha, 60% of the Bills were referred to parliamentary committees and in the 15th Lok Sabha, 71% of them were referred. But, under the first Modi government, only 26% of the Bills were sent for scrutiny; and the current Lok Sabha has passed 14 Bills without sending any of them to the parliamentary committees.
The dependence of the legislators on expert opinions and views reflected in public discourse is a principle which the present dispensation has chosen to ignore. As James Madison famously pointed out, accumulation of legislative power in the elected majority could also lead to negation of democracy.
(The writer is a lawyer in the Supreme Court)