But why have the legislators abdicated their responsibility. Aren’t they supposed to create the right laws to ensure that everyone upholds the rule of law? To understand the disdain many legislators have for the rule of law, one must go back to 1969-70.
It was then that Indian legislators began to realise that they could dictate terms to the courts as well. That would effectively tilt the balance of power in the favour of legislators. The Constitution had envisaged all three wings– the executive, the legislature, and the judiciary — being equal. Developments in 1969-70 threatened this balance. Thus, over the decades, this led to a situation when legislators have learnt to create laws to break laws.
As Indira Jaisingh, noted lawyer, once pointed out, using the law to break the law would eventually push the entire country towards lawlessness.
The year 1969 is when Indira Gandhi, former prime minister, decided to abolish Privy Purses. She lost the case. To understand why he wanted to abolish the Privy Purses please go to Game India a book penned by this author.
But she waited. Then in 1970, fresh from her triumph in the Bangladesh war, and armed with the huge political clout she needed, she changed the composition of judges in the Supreme Court. She then proposed the motion once again to abolish privy purses, won the case, and the rest is history. For more on this case, read Soli Sorabjee and Arvind P. Datar, Nani Palkhivala: The Courtroom Genius, available at Amazon .
India, thus, learnt to overturn past promises with impunity. It was witness to the way even a constitutional guarantee (to the erstwhile princely states) could be abrogated. India had learnt to use laws to break laws.
That legacy makes legislators believe that they can change laws at their whim. The only saving grace is the Kesavananda Bharati case where the Supreme Court ruled that amendments to the Constitution could be made, provided they did not alter the basic structure of the Constitution. The interpretation of what constitutes the basic structure of the Constitution still vests with the courts, at least for now.
The legislature’s appetite for retrospective laws too grew, and one of the most obnoxious pieces of legislation is the amendment to the Foreign Currency Regulations Act (FCRA) in March 2018. That allows political parties to get foreign funds with no questions asked, with retrospective effect for 42 years.
Add to that the introduction of contentious legislations like Aadhaar, the Citizenship Amendment Act (CAA) and more. Together, they have pushed India to the brink of a constitutional crisis. You have absurd situations when companies are hauled up for foreign exchange violations, but political parties cannot be. NGOs have been forced to down shutters because of a vexatious application of foreign exchange laws, even while the linking of Aadhaar to PAN cards – as demanded by the government — could pave the way for a mammoth money laundering opportunity.
Another controversial move is the proposal to allow remote voting from anywhere. That could further extend bogus Aadhaar cards to a manipulation of electoral rolls at a scale that cannot be imagined.
Welcome to an age when the government has learnt to create laws to break laws.
The judiciary stirs
Fortunately, the judiciary appears to have woken up from its listlessness. Watch the way it released all the tablighis who were maligned for spreading COVID-19 and for violating immigration rules.
Similarly listen to the strictures the courts passed in the Disha Ravi case.
Observe how the Supreme Court finally stepped in and ordered NCLT not to proceed in the Future-Amazon case.
Hopefully, the courts will intervene more forcefully henceforth. Hopefully, they will become more active in weeding out corruption among members of the judiciary. After all, law remains the last bulwark for any civilised society. If that bulwark collapses, the floodgates will also break. Some of the disturbing signs of this breakdown will be discussed in the next article.
The author is consulting editor with FPJ
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