April 12, 2015

Modi Govt’s Unfolding Trimoorti

WITH reference to the manner in which this Narendra Modi government was bulldozing legislations in the parliament with scant regard to parliamentary procedures and rules, we had commented in this column that this is a dangerous portend adding a third dimension to the unfolding of the agenda under this government. By now it is clear that this government is relentlessly pursuing the advance of neo-liberal economic reforms, more aggressively than the previous UPA government under Dr Manmohan Singh. This is only sharply escalating the gap between the two Indias and imposing unprecedented burdens on the vast majority of our people. Simultaneously, under the patronage of this Narendra Modi government, the RSS affiliated communal outfits have sharpened the aggressive pursuit of the Hindutva agenda and unleashed a vicious campaign of communal polarisation. This has resulted in a greater degree of insecurity and uncertainty amongst the religious minorities. Additionally, we apprehended another dimension of this government’s agenda – a distinct movement towards imposing an authoritarian style of governance. Unfortunately, this is turning out to be true. This is the new trimoorti that is being erected even before the first year of this government is completed. The latest instance in this direction is the comment made by Prime Minister Modi while addressing a joint conference of the Judiciary including the chief justice of India on Easter Sunday (April 5). This conference was attended also by chief justices of 24 High Courts and the sitting judges of the Supreme Court. Addressing them, Prime Minister Modi said: “There is a need to be cautious against perception-driven verdicts that are often driven by five-star activism.” Mr Narendra Modi had used this term `five star activists’ even before he became the prime minister in relation to legal proceedings that were initiated through public interest litigations (PILs) on aspects concerning the Gujarat 2002 riots. Such disparaging comments against the PILs have come in for major criticism, justifiably, by legal luminaries. One of them said, “PILs are an important part of the Supreme Court jurisdiction. There is nothing to suggest that the Supreme Court has ever entertained PILs which are not bonafide or where the cause is not just. Supreme Court is not misled in the PIL cases it hears. Eventually this becomes a criticism of the court with a gun being fired from mythical five-star activists.” Further, “PIL jurisdiction was started in the Supreme Court in the 1980s to ensure that others would come forward and fight for the rights of the marginalised. Maligning these others as `five star activists’ is against the letter and spirit of the Constitution.” Another said, “To say this before the higher judiciary – Supreme Court judges and High Court chief justices were sitting there – that they would pass orders based on public opinion rather than on constitutional arguments is extremely insulting.” French philosopher Montesquieu laid down a benchmark that continues to be the foundation of any modern democracy. He drew the attention of the polity to the dangers inherent in the concentration of legislative, executive and the judicial powers in one authority and stressed on the necessity of a concept of checks and balances in constitutional governance. Many a modern constitution, including ours, have incorporated this concept. As former Chief Justice, Balakrishnan notes (2007), “The Constitution lays down the structure and defines the limits and demarcates the role and functions of every organ of the State including the Judiciary and establishes norms for their interrelationships, checks and balances.” While specifying such a separation of powers and working out the mechanics to work in harmony where the three wings play a joint and participatory role, the Constitution defines the centrality of the will of the people. The preamble defines this most eloquently by beginning, “We, the people of India” and ending “do hereby Adopt, Enact and Give to ourselves this Constitution”. The eternal message is the sovereignty of the people and its primacy in our constitutional system. Our Constitution is clear: the concept is “judicial review” and not “judicial activism”. The transgressing of the defined space by any of the organs is bound to create not merely friction but gross misgovernance. The inadequacies of the executive compounded by frequent disruptions of the legislature negating the latter’s vigilance over the former has often laid the basis for the judiciary to intervene. As Justice Verma notes (2007), “The deliberate misuse of the judicial process by some vested interests to settle political scores, or to shift the responsibility to the judiciary for deciding some delicate political issue found inconvenient by the political Executive for decision”, has left the judiciary pronouncing on matters which need to be dealt with exclusively by the executive. In order to correct such imbalances, the CPI(M) had proposed the establishment of a National Judicial Commission. Instead of accepting this suggestion, this BJP government, amongst the first things that it did, was to legislate a Judicial Appointments Bill. Perhaps this was done to take care (influence?) of judicial appointments and not to correct the imbalances. This, once again, is an expression of the attempt to tweak our parliamentary democracy and move it towards an authoritarian order. Prior to these comments against the judiciary, another instance of the tweaking of our parliamentary procedures was the manner in which the Land Acquisition Ordinance was re-promulgated. In an unprecedented manner, the Rajya Sabha was `prorogued’ to facilitate the re-issuance of the Land Acquisition Ordinance a day before the earlier ordinance lapsed on April 5. Proroguing one house during a session to facilitate the issuance of ordinances has been only in the rarest of rare cases in our parliament’s history. It may have been necessary under situations when the state budgets needed to be approved in time for states under President’s rule, but never in recent history has this happened for the promulgation of a law. By taking recourse to such methods, a peculiar situation has developed when the Finance Bill which was introduced in the 234th session of the Rajya Sabha, will now be sent back to the Lok Sabha in the 235th session. The president has since summoned the Rajya Sabha’s 235th session to convene from April 23, 2015 (not as originally scheduled to meet on April 20) to May 13. The power to issue an ordinance is a British legacy of retaining control by the Crown overruling the opinion of even the highly restricted and selected legislative bodies under colonial rule. In the Constituent Assembly, Hriday Nath Kunzru objected to continuing with this provision in independent India’s Constitution pointing out that the ordinance making power of the governor general under the Government of India Act 1935 has always “been unpopular”. Replying while rejecting the removal of this provision in our Constitution, Dr Ambedkar said: “My submission to the House is that it is not difficult to imagine cases where the powers conferred by the ordinary law existing at any particular moment may be deficient to deal with a situation which may suddenly and immediately arise….The emergency must be dealt with, and it seems to me that the only solution is to confer upon the President the power to promulgate a law which will enable the executive to deal with that particular situation because it cannot resort to the ordinary process of law because again ex-hypothesi the legislature is not in session.” Hence, Article 123, empowering the issue of ordinances, is there in our Constitution. Does the re-issuance of the Land Ordinance, in the face of the opposition by the majority in the Rajya Sabha, fall under such an `emergency’, as suggested by Dr Ambedkar? In creating a situation by proroguing an ongoing parliament session to facilitate the re-issuance of this ordinance, is the Modi government not dangerously tweaking our Constitution and parliamentary procedures and moving towards an authoritarian rule? Why such desperation to re-issue this ordinance? Why is such a campaign of untruths charging the opposition of spreading `lies’ being unleashed by the PM and the BJP national executive? Is it a lie to point out a fact that the BJP had fully supported the passing of the 2013 Land Acquisition Act? Then why these changes now? Do these changes not suggest that PM Modi is bringing them to benefit both the foreign and domestic corporates at the expense of the already beleaguered Indian farmer? Therefore, is this not an attempt to actualise the `pay-back time’ to benefit those who liberally financed PM Modi’s electoral campaign? Such are the triple dangers that are unfolding under this Narendra Modi government. The danger for the Indian nation and the people appears clearly. This trimoorti is sought to be turned into a trishool that will be the weapon to attack the livelihood of the vast majority of our people and the secular democratic character of modern India. This is the challenge that must be met by the united will of our people reflected through mighty popular struggles. (April 8, 2015)