SC has asked parties to publicise details of criminal charges against candidates. But without a law, will the shaming work?
The Supreme Court has held the mirror to political parties many times in a bid to decriminalise our legislature but every election just compounds the problem with them showing no serious intent to comply. So the number of MPs with criminal cases pending against them has gone up from 24 per cent in 2004 to 43 per cent in 2019. This despite its ruling of September 2018, when a five-judge Constitution Bench had held that all candidates would have to declare their criminal antecedents to the Election Commission (EC) before contesting polls and had called for a wider publicity of their records, through print and electronic media. It had even asked Parliament to formulate a law to ensure that criminals are disbarred so that the “polluted stream of politics” is cleansed. Quite exasperatedly, therefore, this time, reacting to a contempt plea, the court has struck hard, involving the polity as a whole in objectively assessing a candidate’s worth. It has asked all political parties to publicise full details, not just winnability, of tainted candidates, during Central and State elections, on traditional and digital media. Parties, too, now have to list the nature of the charges against a tainted candidate and clarify why then they had chosen to give a ticket to him/her. They have to send a compliance report to the EC within a specified time period — 48 hours post-selection or two weeks before the first date for filing of nominations, whichever is earlier. Any violation would be considered contempt of court. In a sense, the court is also nudging the electorate, asking it to take a measured call. And by asking parties to list reasons why they have chosen a tainted name as their worthy bet, it is putting the onus on them to expose their hypocrisy and subject themselves to public scrutiny.
The State Assemblies are no better when it comes to legislators with criminal backgrounds. In the just-concluded Delhi polls, the Association of Democratic Reforms (ADR) found that more than half the candidates had a black book. In 2020, 43 MLAs declared criminal cases against them while in 2015, that figure was 24. The number of MLAs with serious criminal cases, including rape, attempt to murder and crimes against women, is 37. The last is the most heinous, considering most lawmakers use their political patronage, given their indispensability in managing local cadres and units, to get themselves off the hook. The recent examples of rape survivors being bullied into political submission are all too many. Both BJP MLA Kuldeep Sengar and former Union Minister Swami Chinmayanand have used their political clout to abuse women and stave off repercussions on their political careers for years. The ADR report says that 76 lawmakers across the country have declared cases related to crimes against women. In the last five years, 572 such candidates have contested Lok Sabha, Rajya Sabha and Assembly elections. From 2009 to 2019, there has been a 231 per cent spike in the number of errant candidates contesting the Lok Sabha elections. For the same period, the number of offender MPs has increased by 850 per cent. This phenomenon cuts across party lines, each of which is guilty of ignoring crimes as a liability of its candidates. Worse, whenever they have won, they have been further rewarded or entrusted with a bigger political role. Even on the day of the verdict, Anand Singh, an accused in mining and forest crime cases, was appointed as the new environment minister in Karnataka. Will full disclosure, therefore, serve much of a purpose as most voters have developed the habit of choosing a known evil for the sake of their representative worth in their lives? Besides, given the heft of such leaders in matters local, most constituents are too intimidated to exercise their choice in an impartial manner. Till they are assured that such nominees are punished, nothing can change. What then is the way forward? Although the EC has been given additional powers to punish candidates who file false or misleading financial disclosures, nothing can be effective without disclosure of political contributions. It must insist on independently-audited party accounts. Experts have suggested linking political party registration and tax benefits to basic democratic and transparency standards and creating a new legal mechanism to adjudicate cases of accused MLAs and MPs. But in the end, it depends on the political will of the Legislature and the Executive to push for a binding law. Even now, Section 8 of the Representation of the People Act, 1951, bans convicted politicians from contesting. However, those facing trial, no matter how serious the charges, can still contest. So beyond the court making a moral call, the parties hold the power to change themselves.
(Courtesy: The Pioneer)
This may just be a placatory gesture and will be back given the BJP’s performance in State polls
For long, the ruling establishment has demonised the countrywide protests over the citizenship law as anti-national betrayal, an elitist-liberal conspiracy and an attack on the Hindu way of life. The party with a difference at the Centre has been trying to convince the nation that existing templates of governance needed to be overturned to effect such a change and years of minority appeasement had to be replaced with majoritarian resentment. But if it was so sanguine about the sporadic nature of dissent, then what could explain a temporary reversal of its stand on the National Register of Citizens (NRC)? Clearly the sound and fury signify something for the Government to at least halt its missionary zeal to go for a profiling-based census or justifying it as a way of rooting out illegal immigrants. Clearly, a civil society movement has generated such a swell among common citizens across India, from students to grannies, from working class to labourers, and affected the nation’s productivity cycle to such an extent that the BJP feels its ramrod aggression is costing it politically. Combined with the venom of the hate speeches flying thick and fast and the morally reprehensible sedition and inquiry brought against students and teachers of a school play, the strong agenda push has even left its apologists and defendants somewhat red-faced. The civil unrest across the country has given us a primary lesson in democracy, that people may make ideological choices but are largely against societal deconstruction driven by political imperatives. And the country cannot be in a perpetual state of a war with itself. For long, the Right has played the victim card as a recipient of the Leftist-socialist and Congress oppression. Now that it has a brute electoral majority, that narrative is well past its expiry date. And it must realise that the people’s verdict needs to be respected, that it needs to be trusted as a deliverer and not just be an avenger. It must realise that its manifesto cannot become the nation’s own. That’s why the latest Home Ministry clarification in Parliament that there was no plan for the NRC shows the Government has been stung, temporarily at least. For it comes at a time when senior BJP Ministers, including Home Minister Amit Shah, and even Uttar Pradesh Chief Minister Yogi Adityanath — who has been consolidating the Hindu votebank in mathematical terms in his State and raising the ghostly invasion by “others” — have made no bones about the need to isolate illegal settlers, namely Muslims. It also proves that the Government’s effort to treat the Citizenship Amendment Act (CAA) in isolation isn’t quite working. If the longevity of the protests, particularly Shaheen Bagh, has proven anything, it is that people are not against rehabilitating Hindu returnees, they are against the legacy hunt process, which may disqualify Muslims from the NRC list, who may not have redressal under CAA in the way an excluded Hindu would have. It is the otherisation and genocidal instincts implicit in the CAA that has riled up people. Which is why the pressure on the Government has been immense, such that Prime Minister Narendra Modi chose to publicly overrule his deputy and Home Minister Amit Shah. Now the PM’s reassurance on “no NRC now” has been given official credibility.
But does this mean that the BJP is still pursuing its forked tongue approach? Is it rescuing Modi as a thinking patriarch and, therefore, he has to appear more statesmanlike while Shah and motormouths continue to be aggressors and somewhat recalcitrant members of the Sangh? Modi’s clarification that the NRC had not been discussed in the Government made light of Amit Shah’s statement in Parliament. Many loyalists argued that the PM was not present in the House when the legislation was placed, but can any legislative or policy matter be placed in the House without it having been discussed in the Government at all? This orchestrated rift between Modi and others has frankly been overplayed. Fact is, the cessation of NRC is but temporary to offset general fury over the country’s economic slowdown. The CAA-NRC project was part of the BJP manifesto for the 2019 Lok Sabha election. Shah as BJP president then had promised to bring the CAA first and then implement the NRC. Frankly, with the abrogation of Article 370 and the Ram temple a reality, the BJP is left with very few promises to dangle and nurture the Hindu dream of a promised land. The NRC, therefore, is in abeyance. If the BJP blasts the citadel in the Delhi elections, it will be back. Even if it doesn’t, there will be some subtle State-level experiments for sure.
The responsibility of States to attend to displaced people or illegal immigrants cannot be taken away by the Centre assuming for itself a bigger role by a law such as the CAA
India, as defined in Article 1 of the Constitution, is a “union of States.” These States, therefore, are constitutive of the Indian Union and no executive power can be exercised in a manner that undermines their quasi-autonomous status. Even under Article 368, where the Parliament enacts a law, the power of the House is only a “constituent power”, which, though without limitation, only implicitly permits amendments in part-II (citizenship provisions) of the Constitution. The critical question is, can the constituent power of the Parliament in enacting a law override the constituent power of the State in implementing such a law? Given the quasi-autonomous status of the States, are they obliged to blindly comply with a Central law, which creates a conflict with part-III (basic structure) of the Constitution? Many such questions assume great significance in understanding the constitutional provisions and scope of its operation in relation to States, especially with regard to the recent Citizenship Amendment Act (CAA). Apart from embedded quandaries of the CAA, prima facie, in conflict with Article 14 of the Constitution, the CAA puts the onus of reparation indirectly on States, as the target class of immigrant citizens would have to reside or settle in a State of the Union. Therefore, the constituent power of the Parliament cannot bypass the State in a manner that creates conflict of interest with State(s). The Parliament needs to ensure that existing balance of power and interest is not grossly disturbed by a piece of law.
In Centre-State relations, the Parliament’s capacity to recommend an appropriate course of action in a matter that consequentially affects the State shall run the risk of getting limited by other obligations and interests of the State. A law such as the CAA cannot overwhelm both lex fori and lex loci conditions in relation to States. Obviously, the States remain as both the jurisdictional forum and locus of CAA in terms of its operation, which has to operate through Rules framed under the Citizenship Act of 1955, that necessarily involves officials under the State Government, who are delegated with “procedural” powers to determine who is a citizen.
To put it differently, the responsibility of States to attend to displaced people, who could be legal or illegal immigrants cannot be taken away by the Centre assuming for itself a bigger role by a law such as the CAA. Mere grant of citizenship by the Centre is a form of personal right, which requires the support of a State in entirety to secure all other rights of the citizen, including the right to life, as enshrined under Article 21. Indeed, the CAA in the first instance of its passage in Parliament did recognise lex fori and lex loci conditions by exempting States and areas under the Sixth Schedule from its operation. There remains much scope to fulfil these conditions in framing of rules under the CAA, as Assam and Tripura have State-specific accords to decide on matters of citizenship. The Supreme Court (SC), on its part, distinguishably recognised the case of Assam and Tripura as different from concerns of other parts of the country in relation to the CAA, which is recognition of lex fori and lex loci conditions under which the CAA must operate.
It must also be noted that under Article 13 of the Constitution, laws prior to the commencement of the Constitution such as Foreigners’ Act of 1946 under which the Foreigners’ Tribunals (FT) are ordered in violation of Article 323(b) are inconsistent with part-III of the Constitution and hence it can operate even with CAA framed under Article 368 of the Constitution. This establishes the limited application of the CAA that still requires a much wider framework, apart from its “religious” bias.
Indeed in the case of Assam, operation of the FTs in violation of basic principle of law, namely, “innocent until proven guilty” and its broad sweep of executive discretion in sending someone to a detention camp along with purported operation of the CAA hardly makes a case of consistent application of law. Indeed such inconsistency in operation of the citizenship law is exploited to the extent that a suspected foreigner or an illegal border crosser is often denied right to fair trial, as nothing in law explicitly puts a check and balance on a FT judge from placing a one-sided “onus of proof”, under Section 9 of the FT Act, 1946 on a person claiming to be an Indian citizen in dispute of what the Executive has attributed upon her as a foreigner.
Indeed, the affidavit filed by some of the parties disputing the CAA in the SC refers to this “onus of proof” to be placed upon an immigrant covered under the CAA to make it consistent with the FT Act. In effect, the Code of Civil Procedure that provides right to fair trial and assumes someone not to be guilty until proven guilty is ostensibly a matter of dispute in the case against the CAA that is lying before the SC now, which substantially involves the role of the State in deciding the fate of a suspected foreigner.
So, the SC has to decide on the basis of the principle of “better law” or “more rational law” in the cases filed against the CAA. Additionally, when a State disputes the CAA as a violation of the basic structure of the Constitution, especially the principle of secularism and right to equality before law, the SC has to decide on its jurisdiction as granted by Article 131 of the Constitution.
Kerala, West Bengal and Punjab are raising the same dispute under Article 131. Article 131 clearly stipulated original jurisdiction in any dispute between the Centre and States pertaining to validity of a Central legislation. Independent of the outcome of the case on the CAA, it is to be noted that the right to disputation by a State is a recognised constitutional position that cannot be questioned by raising the issue of prior permission by the constitutional authority of the Governor.
The quasi-autonomous status of the State and full power of the legislature in framing laws under the Seventh Schedule allow for a room of manoeuvering by the States in creative ways without directly contravening a Central law. In a quasi-federal structure like India, there is no “supremacy clause” attached to the Central law, as the Indian Constitution followed a principle of separation of powers guided by a thumb rule of avoiding inequality and imbalance.
This makes it amply clear that there is only an abiding responsibility of the State to follow a Central law without a binding obligation or liability in case the State is not convinced of its correctness. The whole set of issues of federal cooperation and consensus comes into play in enforcing a Central law in case the State concerned sees it as violative of part-III of the Constitution.
What causes the hiatus here is the filtering out of Muslims under the CAA and treating them differently from the rest, in case they have entered India from neighbouring countries covered by the law. Further, exclusion of Tamil immigrants from the purview of the CAA is a potent cause of heartburn in Southern States. The praxis of federalism, being a constantly-developing subject in the world’s large democracies, tells us that distinctions drawn among people on the basis of race, religion, colour, sex, culture and so on are to be disbanded by the State. Hence, in the case of India, no State can be made to practise such distinction and discrimination between people by a Central law, if the State sees it as an incorrect practice. It is correct that in no way can the constituent State of the Union remain non-compliant even if it sees a law giving rise to an incorrect practice, except for approaching the SC to resolve the dispute. However, it is also true that compliance by the State should not violate legal principles of non-discrimination, while denying certain rights to a segment by an established procedure of law. No constitutional law could be bereft of constitutional morality and ethical principle of “no harm” and hence no State could be forced by an executive decree to implement a law that the State sees causing discrimination and harm to a segment in a certain local situation.
The Bommai judgment makes it very clear that the Centre cannot apply “arbitrary powers.” Arbitrary powers here would mean decrees and pronouncements that explicitly subvert a State’s autonomy and jurisdiction of its executives in its own territory. Citizenship Rules, 2003, recognise this executive power of the State by delegating certain crucial powers to the State executive like the District Magistrate. Further, the Bommai Judgment, read with the Sarkaria Commission report, also makes it clear that one of the major sources of arbitrary power lies in “partisan” affairs. When there is no consensus in a bipartisan or multi-partisan sense on the CAA, it does not become non-partisan, as per the language of the Sarkaria Commission, which is the only major commission to examine and understand Centre-State relations in post-independent India. Further, the Inter-State Council, another constitutional body created to resolve any dispute between federal constituents, could discuss the points of contention related to the CAA, which, of course depends on how the respective players raise the matter.
In sum, there is a clear need for check and balance in the operation of executive powers under a Central law, which the CAA certainly warrants. All contentious issues related to the CAA also need a clear resolution in the good federal spirit, giving due importance to the States’ perspectives in the interest of social and political harmony across India.
(Writer: Prasenjit Biswas; Courtesy: The Pioneer)
Those individuals/leaders, who stand opposed to the CAA, must show respect to the Constitution, which empowers Parliament to make laws regarding citizenship
Continued opposition to the Citizenship Amendment Act (CAA), which was passed by Parliament last month, and to the preparation of the National Population Register (NPR) by several State Governments, who stand opposed to the ruling dispensation, and their threatening postures towards the Union Government do not augur well either for the Republic or our Constitutional well-being.
The CAA, which has now become the law of the land, has amended the Citizenship Act of 1955 to provide succour to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians, who because of religious persecution in Pakistan, Afghanistan and Bangladesh, crossed over to India before December 31, 2014, and are living here without any legal status. These nations are Islamic States, meaning Islam is the State religion over there.
Thus, automatically, unlike in India, adherents of all religions other than Islam are second or third-class citizens. Therefore, all non-Muslims are Constitutionally inferior and this has conditioned the majority to ill-treat the religious minorities in these nations. Ever since Partition, the Hindus and other minorities have been subjected to all forms of harassment and cruelty in these nations, forcing them to either convert to Islam or flee.
As a result, the population of Hindus in undivided Pakistan, which was around 24 per cent in the mid-1940s, has crashed to just 1.70 per cent. Similarly, in Bangladesh, which was earlier East Pakistan, the Hindu population has crashed from 30 per cent to about seven per cent. This should also answer the question as to why Muslims have been left out of the list of persecuted minorities under the CAA. First, they are not “minorities” and second, it is laughable to say that Muslims are “persecuted” by an Islamic State. The CAA seeks to offer some help to these subjugated minorities and to only those who entered India before the cut off date. In other words, this is not an open-ended scheme to allow for future migrants from these nations. Nor does it have anything to do with the citizens of India, whether Hindu or Muslim.
Given this reality, the attempt made by the Communists, the Congress and other parties opposed to the BJP, to spread the word that the CAA is against the Muslim citizens of India is blatantly false. This Act seeks to provide succour to persecuted religious minorities in Islamic States and it is also in line with the Bharatiya dharma and Constitutional dharma as well, to reach out to them. Those opposing this are abetting the non-secular, non-democratic behaviour of the citizens of Islamic nations across India’s border and will thereby lose the moral right to talk about these values in the country. The Communists and the Congress are also spreading canards about the NPR, the compilation of which is critical for policy formulation. Both parties were roundly rejected in the last parliamentary election in May 2019. In fact, although the Communists hog 30 to 40 per cent of the airtime on television debates, public support for such parties has fallen dramatically. In the 2004 Lok Sabha election, the two main Communist parties had a combined vote share of 7.07 per cent. In 2014, this was down to 4.07 per cent and in 2019, it crashed to 2.36 per cent.
So, it appears that the Jawaharlal Nehru University (JNU) is their last bastion and with the support of the Congress, the two parties seek to avenge the electoral humiliation they suffered by whipping up passions against the Government that received overwhelming public support.
Meanwhile, in a resolution, the Kerala Assembly has said that the CAA passed by Parliament has created apprehensions in various sections of society. This was followed by the Punjab Assembly, which in its resolution stated that the CAA had caused widespread anguish and social unrest in the country. It further said that “the ideology behind the CAA is inherently discriminatory and is as far away as it can be from being a humanitarian measure.” The Rajasthan Assembly is the latest one to demand repeal of the CAA. These resolutions are not unconstitutional but unprecedented and are certain to pose a threat to the federal structure.
Even more worrying is that the Punjab Assembly’s resolution refers to “apprehensions” that the NPR is a prelude to the National Register of Citizens (NRC) and that it is “designed to deprive a section of people from citizenship of India.” It goes on to say that because of these apprehensions, the Union Government should amend the forms and documentation associated with the NPR.
However, Assemblies in Kerala, Punjab or Rajasthan never shed tears for persecuted religious minorities in theocratic States such as Pakistan, Afghanistan and Bangladesh. Further, all lectures on secularism are to be directed towards the secular, democratic citizens of India and the Government elected by them.
Three other developments in recent weeks are extremely worrying. One, several Chief Ministers have declared that they will not implement the CAA in their States. Two, the disgraceful decision to bring kids to protest sites and to get them to raise foul, abusive slogans against a duly elected Prime Minister. And three, telling the Muslims not to respond to queries from enumerators who are tasked to prepare the NPR.
Every Chief Minister and politician in the country, who has declared that CAA will not be implemented in his/her State, must immediately withdraw their statement because it will amount to challenging the supremacy of the Constitution. Parliament is empowered to make laws regarding citizenship, naturalisation of aliens under item 17 in the Union List and no State or individual has the right to say that the law made by it will not be implemented. If Chief Ministers persist with this line, it will lead to a Constitutional breakdown and the consequences will be terrible because the overwhelming majority in this country swears by the Constitution and will not allow a few malcontents in politics to disturb its rhythm and balance.
Second, the decision by protesters to bring infants to protest sites and to get them to hurl abuses at the Prime Minister is another act of brinkmanship which no reasonable person will support. Last, asking the Muslims to boycott the NPR is equally risky because any attempt to stymie the working of a duly elected Government at the federal level will have its own implications.
Those, who are encouraging such tendencies, are treading a dangerous path. It is indeed unfortunate that one has to make such a gloomy prognosis about what lies ahead around the time when the nation just celebrated its 71st Republic Day. Everybody has to be alert to ensure that the Constitution and the democratic way of life remain undisturbed.
(Writer: A Surya Prakash; Courtesy: The Pioneer)
As the hanging of Nirbhaya’s rapists gets stalled, we must ask if we can get real about women’s safety or just float a bogey
All concerns and campaigns for women’s safety sound vacuous and patronising when the commitment to it, by virtue of honouring and implementing the law, falters. We lose faith in a system that is exploited routinely and remains imprisoned in a maze of technicalities to deny closure. Even if it is as gruesome and indelible a case as that of the rape of Nirbhaya, which has taken seven long years to be taken to its logical end and is still stopping short of answering to our national conscience. Worse, the system is oblivious and impervious to what this travesty means to women in general and to Nirbhaya’s family and friends in particular. Now, the hanging of the four rapists, convicted for one of the most heinous of crimes in India, has been stalled due to procedural drags, simply because all the convicts need to be given time to file mercy pleas and each of them would have to be heard following due processes. This should have been initiated earlier given the Supreme Court’s ruling and clarity on the death sentence in a case considered “rarest of rare.” So a case which ushered in special laws, a fast-track mechanism and well-intended course correction is now being denied the same privileges. Yes, due processes of law have been followed but the undue stress caused by delays in punishing the offenders is the reason that people talk about overriding the system with vigilantism. In the end, women lose confidence in society at large, whose mindset is set by precedents and examples, and predators are emboldened simply because they think they can get by. Considered a cut-and-dry case, the Nirbhaya verdict should not have been long in coming but it took four-and-a-half years for the trial court, the High Court and the Supreme Court to pass their judgments, with the lawyers of the convicts using every trick in the book to delay the inevitable. As per the law, once the apex court handed out the death sentence on May 5, 2017, the four convicts should have filed a review petition within 30 days, but the men exploited a legal provision for condonation of the delay if the convict gives a convincing reason. Hence all four filed their review petitions at different times after long, deliberate delays, in their bid to thwart the justice system. Under prison rules, if death sentence has been handed out to more than one person in a case and if even one of them moves a mercy plea, the execution of the others, too, has to be postponed till the plea is decided. Hence, as one of the four convicts, Mukesh Kumar, has a mercy petition pending before the President, all cannot be hanged. What is appalling is that these oversights have been made by responsible arms of the administration, in this case the Delhi Government and prison authorities. The Delhi High Court, therefore, slammed the Delhi Government for sitting on the case for a year and not issuing a notice on the mercy plea to convicts. The court also castigated the Delhi prison authorities for not informing the convicts that they could move mercy pleas before the President. This is not the first time that the convicts have exploited loopholes to thwart justice. Right from false alibis, to buying time by getting pages and pages of trial court proceedings translated from English to Hindi, they have done it all.
No wonder then that in a country where the conviction rates for rapes are as low as 32.2 per cent, despite laws dealing with sexual assault being made stringent in the aftermath of the incident, crimes against women have been on the rise. They have spiralled from 329,243 cases in 2015 to 338,954 in 2016 and 359,849 in 2017. From 2013 onwards, over 30,000 women/girls have been raped. That there is no seriousness about building in deterrence is revealed by a dismal 11 per cent utilisation of the Nirbhaya Fund allocated to States/Union Territories for ensuring the safety and security of women/girls. Any reform — police, judicial, infrastructural — will have no meaning till we reform the attitude towards law enforcement, implement it instead of negating it. Of course, there is the monster of politicisation even in tragedy. The BJP promptly blamed the AAP Government for delaying notices to convicts considering the Supreme Court rejected the appeal against their death sentence in 2017. AAP claimed that while the Delhi Government’s recommendation was swift, the Centre had been in hibernation mode. While the point-scoring over who pushed Nirbhaya’s rights rages on, what both forget is that each had agency and powers to do what could have been done in days, not years. Both, as representatives of people, look emaciated by the criminals who help them keep their talk points rolling. After all, there is no political capital to be made out of Nirbhaya’s deathly silence.
(Courtesy: The Pioneer)
Kerala’s suit on CAA in the top court may be an opportunity to clarify grey areas and assumptions around the new law
Many may interpret the Kerala Government’s challenging of the Citizenship Amendment Act (CAA) in the Supreme Court under Article 131 as pointless or even a deterrent to nationalist design. But what many are missing is that it also provides an opportunity to seek the apex court’s detailed clarification on the matter once and for all rather than confining the law to the domain of subjective assessment and selective interpretation. Article 131 allows a State or even several States to file a suit in the Supreme Court in case of any dispute that it/they may have with the Union Government. What the suit does is make it morally incumbent upon the court to undertake a more rigorous examination of the subject concerned than moving it to the outbox of a blanket dismissal. The Chief Justice of India (CJI) may have to constitute a larger Bench to hear the case, considering that a decision is pending on the 2015 verdict by a two-judge Bench that Article 131 could be used to examine the constitutionality of a statute. Although the ruling party and the Opposition have been peddling and politicising their own interpretations of the new law, the fact is there are too many questions that need answers. Most mistaken is the perception that civil society protests are anti-Hindu. Nobody seems to have any issue about repatriating and rehabilitating persecuted Hindus in other countries in their homeland. But the fact is the CAA, given its exclusionary clause against Muslim minorities, codifies a religious classification in governance policies, something that experts argue violates Article 14 of the Constitution and can set a wrongful precedent inimical to the secular character of India. They say it also challenges the right to life under Article 21 and freedom to practise religion under Article 25. Since much of this is implied and not categorically stated, the top court’s informed views would settle the raging debate of the times. This is much-needed considering that the law can be referenced to explain multiple situations and misguide identity politics. And if indeed saving religious minorities in countries with civilisational contiguity is the pivot of the argument, the Kerala Government has asked why leave out Sri Lanka, Myanmar, Nepal and Bhutan? The other grey area concerns the law’s linkage with the proposed National Register of Citizens (NRC), whereby disqualified settler Hindus with inadequate legacy papers could still seek clemency under CAA but Muslims in the same boat would not. Besides, the economic cost of the influx mandated by CAA, even rehabilitating immigrants with jobs, has not gone down too well in the North-east, which is protectionist about rights of indigenous people and their political relevance through economic stakeholdership. The ability to apply for citizenship on the basis of a self-declaration and fast-tracking of procedures virtually aim to undo the complexities and systemic harassment that disempowered many Hindu citizens during the compilation of the Assam NRC. It is these anxieties and derivatives that need transparency, considering it suits both the ruling party and the Opposition to hunt through the haze. Most importantly, it would settle the threat perception to India’s real civilisational pride, that of multiple heritage, a rarity of co-existence that Microsoft CEO Satya Nadella is proud to uphold but is dismissed as an “uneducated” opinion of dissenters.
Most significantly, a comprehensive rather than selective interpretation would help law enforcement in classifying protests as seditious or democratic. After all, CAA protesters got legitimacy because of the Delhi High Court upholding their rights to do so. Another city court, while hearing the bail plea of Bhim Army chief Chandrashekhar Azad, also reminded the Delhi Police that he had a constitutional right to protest. Judge Kamini Lau even observed that people were out on the streets as what should have been said inside the Parliament was “not said.” That’s why the Kerala Government’s suit becomes significant, for it forces the powers that be to lay down the rationale of the CAA rather than dismiss protests as divisive anti-Government propaganda. Politically, the Kerala Government, which has urged other Opposition States to challenge the Act in a court of law, has even made way for each protesting Chief Minister to seek a rational legal redress and escape the anarchist allegations being levelled by the ruling BJP. Bihar Chief Minister Nitish Kumar, an ally of the BJP, has spoken against CAA/NRC, joining Madhya Pradesh’s Kamal Nath, West Bengal’s Mamata Banerjee and Jharkhand’s Hemant Soren in opposing the law. Similar suits would lend weight to their agenda than appearing as compulsive disruptors of public life.
(Courtesy: The Pioneer)
When the British introduced the blasphemy law in India in 1860, it did not carry the death sentence. Then how and when did the law mutate to claim more and more victims?
The regime of 13th century king of France, Louis IX, formulated and imposed what are considered to be the first formal laws that prescribed punishments for those found to have committed blasphemy. The punishments included the mutilation of the tongue and the lips. Historian Nora Berend writes in her book At the Gate of Christendom that Louis IX largely used his blasphemy laws against Jews and Muslims and against his Christian opponents. He also ordered the burning of dozens of copies of the Talmud — the central text of Rabbinic Judaism — after claiming its contents were “blasphemous.”
There was no concept of such a law in the Muslim world at the time. As Fareed Zakaria (quoting the renowned South Asian Islamic scholar Maulana Wahiddudin Khan) points out in an article, “Nowhere does the Quran prescribe the punishment of lashes, or death, or any other physical punishment.”
Yet, a detailed 2017 report by the United States Commission on International Religious Freedom placed Iran and Pakistan as the top two countries whose blasphemy laws severely deviated from recognised international human rights principles. The report studied 71 countries where some form of blasphemy laws exist. It then investigated the severity of these laws and prepared a list. The top two names on the list were of Iran and Pakistan.
According to the report, the blasphemy laws of these two countries were also more likely to be misused and/or encourage vigilante violence. To understand how this happened, it is important to investigate how the idea of the blasphemy law evolved in Europe, where it had originated. After 13th century France, blasphemy laws also appeared in England in the 15th century during the reign of King Henry IX. Between 1404 and 1504, dozens of alleged “heretics” were killed for blasphemy. The 13th century blasphemy law in France was finally repealed almost 500 years after it was first enforced. It was cancelled in 1791 soon after a revolution toppled the French monarchy and established a secular nationalist republic in France. England’s 15th century blasphemy law was made part of the British Common Law in the 17th century, but without the death penalty. In 1949, a British judge ruled that the law was a “dead letter” and “not required anymore.”
It is interesting to note that various forms of blasphemy laws were enacted in Europe between the 13th and 19th centuries, but no such law was ever adopted by a Muslim-ruled region. The first Muslim-majority region to prescribe the death sentence for blasphemy was Saudi Arabia, when that country came into being in 1932.
In South Asia, the idea of the blasphemy law was introduced by British colonialists. It was first codified in India in 1860 and then, as tensions and violence between Muslims, Sikhs and Hindus increased, it was expanded in 1927. It did not carry the death sentence. In 1947, when Pakistan came into being, it adopted the 1927 law. It carried a one-year prison sentence or a fine. Pakistan thus became the second Muslim country to have a blasphemy law. Libya adopted one in 1953 and Indonesia in 1965. None carried the death sentence.
However, the situation began to mutate rather drastically when Shia clerics came on top during the 1979 revolution in Iran. The new Islamic regime enacted stern blasphemy laws, making Iran only the second Muslim-majority country to prescribe the death penalty for blasphemy after Saudi Arabia. Pakistan would become the third and Taliban-ruled Afghanistan, the fourth. In Pakistan, the intransigent military regime of General Zia that had come to power in July 1977, upped the ante in 1980 when it added two more years of imprisonment to the 1927 law. In response to Iran’s increasing “Islamisation”, Saudi Arabia began to further beef up its blasphemy laws. The Zia regime followed suit when, in 1982, it further expanded the law by prescribing life imprisonment for those found guilty of “defiling the Muslim holy texts.” A year after the 1985 election, in which only pro-Zia parties and individuals took part, a new Parliament came into being, led by Prime Minister Muhammad Khan Junejo. Zia encouraged the Parliament to legislate laws that would “truly turn Pakistan into an Islamic state.”
Human rights activist and lawyer, the late Asma Jahangir then delivered a scathing speech at a Women’s Action Forum (WAF) seminar in Islamabad in which she asked why the ulema (Muslim scholars) were being turned into a political class. A member of the Jamaat-i-Islami Liaqat Baloch and another member of Zia’s Parliament, Nisar Fatima, took slight at Jahangir’s criticism and demanded that WAF be banned.Fatima then accused Jahangir of using inappropriate language for Islam. A former justice of the Zia regime’s Federal Shariat Court, Aftab Hussain, disagreed. He told reporters that he found nothing objectionable in Jahangir’s speech. But Fatima continued to demand action. With a few of her colleagues in the Parliament, she demanded that a Bill be tabled to add the death penalty to the blasphemy law. In the “debate” that ensued, only an MNA from Jhang, Arif Khan, pleaded that patience be exhibited to pass a Bill prescribing the death sentence. But his voice was drowned out by those who claimed that “divine displeasure awaited those who would oppose the Bill.” Ironically, the situation seemed to have spiralled out of control for the Junejo regime because some ministers tried to stall the Bill. But they couldn’t and it was passed into a law which many experts believe is highly vague.
For example, a Multan court recently sentenced a professor to death for committing blasphemy, whereas the Islamabad High Court rejected a petition against Prime Minister Imran Khan (for allegedly committing blasphemy) when the court noted that “religion was a private matter.”
From 1947 until 1985, just 14 people were charged under the blasphemy law that carried a one-year sentence.
After 1986, when the death penalty was added, over 1,500 people have been charged.
(Writer: Nadeem Paracha; Courtesy: The Pioneer)
Taxation has been a weak area for the Central Government. Statutory compliances have reached a saturation level and some relaxation is needed in 2020
The year 2019 started with all political parties in election mode due to the general elections and has ended with large-scale protests due to the Citizenship Amendment Act, 2019 (CAA) and the National Register of Citizens (NRC). The economy and taxation usually take a back seat when the country has such a volatile environment and this is exactly what happened in India. By and large, 2019 was not good on the economic front and the fiscal situation was in such a state of turmoil that it forced the Finance Minister to review the situation every week and come up with stimulus packages.
Taxation has been a weak area for the Narendra Modi-led Government. Statutory compliances have reached a saturation level and some relaxation is needed. Till now the Government has paid heed more to the bureaucracy than the professional fraternity on this front. As we enter a new year with a pall of economic gloom hanging over it, full-fledged economic and taxation reforms are the need of the new decade. Here are some reforms the Government could consider in the days ahead.
Direct tax reforms: India faced weak demand in 2019 that led us to the economic slowdown. The Central Government reduced corporate tax rates up to 10 per cent, the biggest cut in the last three decades. As per estimates, this cost the exchequer around Rs 145,000 crore. The Government reduced corporate tax in anticipation that after the cut businesses would have a better cash flow and they would invest it further, resulting in employment generation and creation of demand. The results of this cut are expected in 2020. If the excess investments meet the Government’s expectation then they would ease the pressure of rising unemployment. But, if this calculated move backfires then it would be a setback to the Government because it promised a lower corporate tax rate. If even after sacrificing revenue the Government is unable to recover money, then it would work on reducing other deductions and so on.
Cut in individual income tax rates: The economic deceleration was due to weak demand. The Government slashed corporate tax and increased supply — which was already abundant — whereas the requirement was for increasing demand. Therefore, to create demand the Government could reduce income tax rates and create some more sub-slabs. For instance, the current tax rate is 20 per cent for the Rs 5 lakh to Rs 10 lakh slab. This could be reduced to 10 per cent and a new slab of Rs 10 lakh to Rs 20 lakh could be created with a 20 per cent tax rate.
Direct tax code: The current Income Tax Act was introduced in 1961 and since then the business environment has changed. It needs a total revamp so that a Direct Tax Code (DTC) is required. The UPA Government had proposed a DTC but due to differences between P Chidambaram and Pranab Mukherjee, it never saw the light of day. In August the Akhilesh Ranjan task force submitted its report along with a new draft for the DTC and recommended its implementation.
Tax profits by multinationals operating in the digital space: India has raised apprehensions at global forums, particularly at the Organisation for Economic Co-operation and Development (OECD), about profit-sharing by multinationals operating in the digital space. Currently, the entity is taxed in the country where it has a physical presence. “Base Erosion Profit Shifting” Project (BEPS) will be addressing the core issue of such taxation. In the digital world, there is no nexus between physical presence and revenue generation. While traditional taxation statutes take into account things like assets and employees located in the country, in the digital world these have become irrelevant to some extent. So perhaps this principle should be modified to a large extent. The introduction of “equalisation levy” was the first baby step towards such taxation and thus much more comprehensive tax may be levied on this in the next Union Budget.
GAAR to SAAR: General Anti-Avoidance Rules (GAAR) are aimed at curtailing tax avoidance and empower authorities to deny benefits to arrangements not having any commercial substance other than achieving tax benefit. Tax avoidance is legal but large-scale revenue loss can occur due to aggressive tax planning. To counter this, GAAR provisions were introduced recently. India also has Double Taxation Avoidance Agreements (DTAA) with many countries and these will override the GAAR except when there are Impermissible Avoidance Arrangements (IAAs). India could also introduce Specific Anti Avoidance Rules (SAAR), aimed at individuals on case by case provisions.
Reforms expected in Goods and Services Tax: While being introduced GST was called the “Good and Simple Tax” but unfortunately due to the compliances and complications it is neither simple nor good. Falling GST collections and increasing compensations to States have further complicated the problems. The Government’s priority should be to sort out the mess GST has created.
E-Invoice, Q-R codes and invoice reference number: Electronic Invoice (e-Invoice) is a system in which “Business to Business” (B2B) invoices are authenticated electronically by GST Network (GSTN) for further use on the common GST portal. Under the proposed electronic invoicing system, an identification number will be issued against every invoice by the Invoice Registration Portal (IRP) to be managed by the GSTN. E-invoicing will be mandatory from April 1, 2020, for businesses having a turnover of Rs 100 crore or more. It will start on a voluntary and trail basis from January 1, 2020, if the turnover is Rs 500 crore or more and from February 1, 2020, if it is Rs 100 crore or more. It is applicable for B2B invoices only and the QR code is required to be mentioned on B2C invoices. It is applicable on domestic B2B sales, export sales and sales to SEZ units. Web portals for the same have been notified recently.
New GST returns: In the GST Council meeting held on May 24, 2018, on the recommendation of the Group of Ministers on IT simplification, the GST Council vowed to introduce New Simple Returns for GST compliances. The formats of the new returns like ANX-1, ANX-2, RET-1/2/3 are in the public domain and would be available for trial from January. But as ANX-1 and ANX-2 are equivalent to GSTR-1 and GSTR-2 it would be interesting to watch whether these new returns will ease off the burden of compliance from the taxpayers or further complicate the current problem.
New GST Annual Return forms: If someone has to understand the mess created by GST compliances then one has to see the position of GST Annual Returns. GST was introduced on July 1, 2017, and for the Financial Year (FY) 2017-18 returns were to be filed by December 31, 2018. Now the date has been further extended to January 31, 2020. Three years after GST was introduced, the Government is yet to provide a simple form for Annual Return. Till the third week of December, the Government was working on providing a new utility/form for returns for FY 2017-18. So when will returns for FY 2018-19 and FY 2019-20 be filed?
Real-time availability of ITC: Input Tax Credit (ITC) is the spirit of GST and seamless credit is its backbone. But the falling GST collections forced the Government to introduce provisions against the spirit of GST by restricting 20 per cent credit over and above the matched GST (GSTR-2A) in November and then to 10 per cent in the December 18 GST Council meeting. If the economic slowdown keeps on reducing GST Collections then the Government would allow only Real Time-matched GST. This may force corporates to deal only with large enterprises and may be detrimental to the MSME sector.
Compensation to States: When GST was introduced the Centre promised States compensation for losses, if any, for collection of indirect taxes viz-a-viz GST. Growth at 14 per cent was promised and agreed upon. In the GST Council meeting, the Government asked States to agree to a growth rate of 10 to 12 per cent. This is lower than the promised compensation. Will the States agree to this or not would be seen later. Also, the Centre is not regular in its payments to States and the August compensation was released just a few days before the council meeting. The Government has largely missed its GST revenue collection target.A new year comes with new hopes and expectations for everyone but for the present dispensation at the Centre it has come with more challenges and complications on the taxation front.
(Writer: Abhishek raja; Courtesy: The Pioneer)
The judiciary and the executive cannot be at loggerheads in a welfare State as it would make citizens jittery and lose faith in the system
The kind of storm which the Citizenship Amendment Act (CAA), 2019 has kicked up is, perhaps, unprecedented as it deals with the subject of future citizenship and not the current. The matter is now resting the opinion of the Supreme Court (SC) for its constitutional validity, which will hear 59 petitions filed in opposition of the law on January 22, 2020. It would be interesting to note whether the views of the judiciary and the executive would converge on an issue as sensitive as this one. In the case of Ayodhya, the apex court’s verdict has established well that law cannot be detached from the interests of the people it serves. There was a raging debate whether the Ayodhya verdict was based on credible and admissible evidence or was it influenced by the faith and belief of the majority? Irrespective, the verdict was peacefully accepted by all the factions, not necessarily for its veracity but for bringing to end a painful impasse. What is clearly visible and undebatable is that it brought peace finally.
There would be peace if two conditions are fulfilled. One, the interests of the larger sections of the people must be put above all else. To punish a few guilty, we cannot make the masses suffer along with them. Second, there cannot be a chasm between the views of the executive and the judiciary, which would otherwise make citizens jittery and lose faith in the system altogether. Imagine being brought up by two warring parents.
This ethos of acting in public interest and going along with the views of the executive must now be extended to end pain in other areas as well. Take livelihoods as an example, where the case of Goans has been hanging for far too long. Goa was the only State where mining rights were granted to its citizens by the Portuguese Government in perpetuity, but were eventually revoked by the Indian Government. Ever since the apex court abruptly cancelled 88 mining leases in the State on February 7, 2018, life has come to a grinding, tragic halt for mining dependents in the State. This is now no longer just an economic crisis — which is severely debilitating in its own right — but a grave human crisis as well. Such is the situation that the Goa Government has requested a review of the ban by the SC, which is also pending. Jobs and livelihoods disappearing overnight as a result of judicial intervention is painful, particularly at a time when India is going through the worst employment crisis in the last 40 years. According to the National Sample Survey Office (NSSO), the country’s employment reached the lowest rate in 2017-2018.
Earlier, in 2012, the SC cancelled 122 spectrum licences in response to a PIL filed by a host of activists and to answer the question whether the Government had a right to distribute natural resources in a manner that was not “fair and transparent.” This affected 5.3 crore telephone connections. It was alleged that the exchequer lost Rs 1.76 lakh crore in revenue and a few private telecom players were the beneficiaries. This case was highlighted as among the top 10 abuses of power by Time magazine. The verdict shook the country, changed the contours of a developing telecom industry, made new telecom operators wrap up their business and gave the reins of the sector into the hands of a few business groups.
In a reversal in 2017, a special court in New Delhi acquitted all the accused in the 2G spectrum case citing that the CBI could not find any evidence against the accused in seven years. As per the judgment, “Some people created a scam by artfully arranging a few selected facts and exaggerating things beyond recognition to astronomical levels.” The matter now rests with the Delhi High Court on basis of appeals filed by the CBI and the Enforcement Directorate. The key question is as to why the case could not have been tried without cancelling the licences? The court should have allowed business to continue, while the case would have carried on. By invoking closure of business, the court caused collateral damage to the industry, the economy and most importantly to the livelihoods of people employed by the companies that had to close shop.
Studies have established that India’s Maoist movement is deeply rooted in socio-economic conditions prevalent in parts of India with large tribal populations. It has mostly affected areas where there is a conflict between the State and the populace on the economic derivation of forest produce and mining such as in Chhattisgarh and Jharkhand and agriculture in parts of Andhra Pradesh and Odisha. Such aggressive posturing by citizens has huge direct and indirect costs. The purpose of the law is to create a conducive environment for the citizens of the State. However, sometimes, like in the Goa mining ban and the spectrum case, the law and its interpretation has spelled doom for citizens and businesses. This cannot become a precedent and must be addressed immediately. Situations like these need more complex solutions, just like the CAA. It is simplistic to penalise lakhs of people for the actions of the few with the stroke of a pen, and it is certainly not done.
(Writer: Abhay Raj Mishra; Courtesy: The Pioneer)
The Transgender Rights Act indicates the many pitfalls in enacting legal frameworks without fully accounting for the realities and views of those they seek to protect
Despite nation-wide protests, the Transgender Persons (Protection of Rights) Act, 2019, received presidential assent on December 5, 2019 and became a law. Ostensibly enacted to protect the rights of the transgender community, the Act seeks to dilute core promises, including the right to self identification, which was the cornerstone of the Supreme Court’s landmark judgment in NALSA vs Union of India. There appears to be a unique situation, where a supposedly progressive law meant to further rights and ensure welfare of the transgender community has not only led to disappointment but will also alter their existing rights.
LGBT+ rights have made significant strides over the past decade, with the Supreme Court recognising transgender rights and decriminalising same-sex relationships. The decisions in both NALSA vs Union of India and Navtej Singh Johar & Ors vs Union of India marked the culmination of advocacy initiatives and years of struggle that the LGBT+ community had to undergo to successfully build their cases. The top court’s judgments not only expanded rights but were also cognizant of the realities of LGBT+ persons in India. Read together, both judgments lay the foundation for expanding the citizenship rights of LGBT+ persons.
Law reforms post these orders have not followed up on the court’s orders in responding to the lived realities of the community. Therefore, while the Transgender Persons (Protection of Rights) Act, 2019, should have been a step in the direction of progressive law reform, in its current form, it points to a glaring disconnect between lawmakers and the ground realities faced by the transgender community.
For instance, the Act prescribes a long and complicated process to obtain a certificate of identity. This certificate is of immense importance as it confers rights and serves as a proof of recognition of identity as a transgender person. While details of how such certificates will be issued have been left to the delegated legislation, the possibility of introducing invasive procedures to prove one’s identity may have a detrimental effect on the right to self identification, which has been recognised by the top court and High Courts.
It is unclear whether applying for such a certificate of identity is mandatory. For instance, will those transgender persons, who already possess identity documents identifying themselves as such, also have to apply? The Act also does not envisage any streamlined appellate procedures in case the certificate of identity is not issued. This may lead to costly and time-consuming litigation in case of denial.
Members of the transgender community have also pointed out how provisions on the right to residence with immediate families or in the alternative, requiring them to reside in rehabilitation centres, are ignorant of social realities. This because natal families are often sites of violence for young transgender persons, thereby forcing them to leave home and reside with the community members. Further, rehabilitation centres may not be an ideal alternative because often, such establishments do not possess the requisite degree of sensitivity to deal with the issues of transgender persons.
In the case of adults, such a provision ignores the fact that transgender persons above the age of 18 are competent to make their decisions. Further, community members have rued that while the Act provides for punishment for sexual abuse, the same is much lesser when compared to punishment for similar offences in the male-female binary in the Indian Penal Code. This creates a hierarchy of condemnation between offences against different identities that are otherwise similar in substance.
The structure of the legislation also renders it difficult to implement and does not provide realistic ways to enforce the rights guaranteed by it. For instance, the pan-India National Council for Transgender Persons is a mammoth body, which is unlikely to meet with any degree of regularity to address issues faced by transgender persons. Further, it only includes five representatives from the community. This is too small a number when compared to the size of the council. The Act also fails to provide cogent methods for grievance redressal. Therefore, while one of the functions of the council is to redress grievances of the transgender persons, it is unlikely to redress individual grievances with any degree of reasonable efficiency given its complex composition. While the Act requires establishments to appoint a complaint officer to redress grievances for violation of the provisions, no powers have been conferred on the complaint officer. No details have been provided regarding how such an officer would redress complaints.
The definitions of the Act also indicate a lack of conceptual clarity regarding the realities of the transgender community. The definition of “transgender persons” includes “persons with intersex variations”, thereby conflating the two identities. Moreover, the definition of “family” by restricting itself to relationships of “blood or marriage or adoption”, continues to operate in a heteronormative context, thereby ignoring the many ways in which transgender families have been traditionally structured in India.
Deficiencies of the Act, therefore, make what would have otherwise been a welcome legislation, counterproductive, unresponsive and incapable of meeting the needs of the community. The Act, thus, fails to maintain focus on the concerns of the community and points to the lack of public consultations in its drafting process. Considering the progressiveness of the apex court judgments, law reforms seem like the obvious next step in realising equal citizenship rights. However, the Transgender Rights Act indicates the many pitfalls in enacting legal frameworks without fully accounting for the realities and views of those they seek to protect. Any way forward for law reform, therefore, must keep the LGBT+ community front and centre and should proceed on the basis of extensive community consultations. After all, rights are only meaningful if in their operation, they respond to the realities of the right-holders.
(Writer: Akshat Agarwal; Courtesy: The Pioneer)
Constitutional amendments made in bad faith prove tough to reverse when they become tools in the hands of political lobbies
All Constitutions authored by nation-states from the 18th century onwards have their roots in what is often referred, by political scientists, as the “enlightened Constitution model.” It is largely based on the ideas of several 17th and 18th century European philosophers, especially Thomas Hobbes, John Locke and Jean-Jacques Rousseau.
Even though various forms of codified Constitutions have existed before the 18th century, it is the “enlightened model” that continues to shape Constitutions to this day. Therefore, a Constitution of any country is understood to be inherently pluralistic, setting guidelines for Governments to legislate laws that would ensure socio-political and economic stability and repulse discord and turmoil in society.
The “enlightened model” supports robust debate and an equally vigorous process of tabling a Bill before it is passed as law or an amendment. The idea is to achieve as wide a consensus as possible among all branches of the legislature, the executive and the polity. Yet, one has often seen how fast sometimes majorities in a Parliament have passed Bills and made amendments without much debate or input from stakeholders.
Recently, a controversial Act in the Indian Parliament was passed in just one day. The Citizenship (Amendment) Act (CAA) was introduced by the BJP Government on December 9 and passed the very next day. Denounced by the Opposition and human rights groups as being “anti-Muslim” and against the “secular spirit of the Indian Constitution”, the passage of this Act has triggered widespread riots in India.
This is a stark example of an amendment staining a document that was originally constructed on the pluralistic pillars of the enlightened Constitutional model. An amendment made in bad faith that creates discord in the polity can be problematic. Certain Constitutional amendments, which trigger discord in society, become rather tough to reverse, especially when they become political tools in the hands of strong lobbies.
Take, for instance, the Second Amendment in the US Constitution. Ratified in 1791, it gives US citizens the right to bear arms. The amendment became controversial in the latter half of the 20th century when there was an alarming increase in cases of youth indiscriminately gunning down fellow students in schools.
Despite massive rallies calling to repel the amendment, American Governments have found it tough to do so because the amendment is supported by the powerful and financially strong “gun lobby” and by segments of the polity in the more conservative Southern States. Both groups have an impact on the electoral careers and fortunes of a number of members of the US Congress and Governors.
The Second Amendment in the Constitution of Pakistan is another interesting case in point. Unlike the 1986 Article 295-C that introduced the death penalty in the country’s blasphemy laws, the second amendment in the country’s Constitution was not enacted in a hurry or without debate. A robust debate did take place. Mahboob Hussain’s book, The Parliament of Pakistan, provides a detailed account of how this amendment, which ousted a community from the fold of Islam, managed to become part of a Constitution built on the enlightened model.
In May 1974, a clash took place between a group of Ahmadiyya youth and members of the student-wing of the Jamaat-i-Islami (JI) in the city of Rabwah. A week later, the Leader of the Opposition in the Punjab Assembly demanded that the Ahmadiyya be declared a minority. Soon, the Opposition in the National Assembly moved a motion to discuss the incident in Parliament. The law Minister refused the motion stating that the issue was provincial.
Until June 4, 1974 the Government used various tactics to keep the debate on the issue away from the Parliament. The then Prime Minister, Zulfikar Ali Bhutto, maintained that the “90-year-old question” (of whether the Ahmadiyya were Muslim or not) was a theological one and, thus, could not be discussed in Parliament. According to Hussain, the Prime Minister asked religious parties that if this issue was so important, why had they not discussed it when the Constitution was being framed (with their input) in 1973. The speaker of the National Assembly stated that no debate can take place on the matter because the Constitution had already defined the minorities. On June 14, the Opposition called for a general strike. The strike turned violent in Punjab, killing dozens.
After threatening to use the military against the rioters, the Prime Minister finally appeared on TV and promised that he would allow the issue to be discussed in Parliament. In his book, Hussain writes that the fact that the military was already engaged in fighting an insurgency in Balochistan, and the manner in which certain Ahmadiyya leaders based out of Pakistan began suggesting (via foreign media) that the Bhutto regime was incompetent, forced the Prime Minister to allow a debate. A special parliamentary committee was formed to investigate the Opposition’s demands. Theological experts from all Muslim sects in Pakistan, including those from the Ahmadiyya community, were invited for in-camera sessions with the committee.
Bhutto’s party, the Pakistan Peoples Party (PPP), had been overwhelmingly supported by the Ahmadiyya during the 1970 election. In 1972, Bhutto had even appointed new chiefs of Air Force and Navy, both of whom were Ahmadiyya. According to Hussain, Bhutto continued efforts to neutralise the situation but since Punjab was the PPP’s electoral bastion, violence in the province threatened his regime at the centre.
Rafi Raza, one of the authors of the 1973 Constitution, wrote in his 1997 book, ZA Bhutto and Pakistan, that many members of PPP’s Punjab Assembly agreed to support the Opposition on the issue after portions of the special committee’s report were “leaked.” Raza wrote that certain “controversial statements” made by the Ahmadiyya figureheads during their meeting with the committee turned the tide in the Opposition’s favour. He didn’t mention exactly what these statements were.
After four months of debates and commotion, the Bill to declare the Ahmadiyya a minority was allowed to be tabled. On September 7, 1974, it was passed. All parties — religious and secular — in the Assemblies and the senate voted in its favour. Editorials of almost all newspapers commended the Parliament for resolving the issue “peacefully.”
Yet, even though the Government and the Opposition declared that a 90-year-old issue had been resolved through democratic consensus, the fact is, this “resolution” ended up opening a Pandora’s Box that the State and polity of Pakistan are still trying to shut. This was a box from which sprang out not only religious and sectarian monstrosities but also the question: Exactly how adjustable should a Constitution based on the “enlightened model” be? Is this adjustability actually a vulnerability?
(Writer: Nadeem Paracha; Courtesy: The Pioneer)
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