Hindutva and Justice – Part 1

A cursory look at right-wing literature could give a layperson the impression that Hindutva’s interest in law and justice is limited to:

1. The demand for a Uniform Civil Code
   
2. Seeking repealment of Article 370 of the Constitution which bestows special status on J&K
   
3. The Babri Masjid Case
   
4. The Shah Bano Case
   
5. Demand for promulgation of Anti-conversion laws
   
6. The need for AFSPA in troubled regions of the country
   
7. The Constitution (Scheduled Castes) Order, 1950 and The Constitution (Scheduled Tribes) Order, 1950, and reservation-related laws and
   
8. The Communal Violence Bill
   

Beyond these identity and national integration-related issues, does the right-wing movement concern itself with “secular” and less “popular” aspects of the law such as quality, expedition and sophistication of justice dispensation/delivery, judicial reforms for greater transparency and accountability, repealment of unnecessary legislations which clog the statute book, evolution of indigenous jurisprudence instead of slavishly borrowing from English legislations and thought, investing in creation of a strong talent pool to voice Bharat’s views and protect its sovereign interests in international fora on treaties of critical importance, and the like issues?

If the political arm of the right-wing was asked to unveil its vision on any or all of the above-mentioned issues, would the right-wing have a concrete plan or at least have informed opinions on them? Or will casuistry characterize its opinions? I cannot answer in the affirmative to the last question, I am just not sure if the answer is in the negative.

One of the cardinal functions/duties of the State is to dispense justice, to facilitate affordable access to it and to preserve the people’s faith in the judiciary. A State which fails to perform this paramount duty deserves to wither away for it does not have its first principles in place.

Also, a State which does not put sufficient thought into its laws, and enacts them with negligible or absolutely no deliberation is either burdening its people with unnecessary laws, or may be putting in place a far-from-perfect and ill-thought means to achieve an otherwise noble objective, or worse- the law may be used as a tool to further vested political or commercial interests, examples of which abound in this country. In none of these situations can the outcome be a positive one, except by a sheer quirk of circumstance, which isn’t really how the law should function.

Since 2009, under the second UPA regime, approximately 87 Bills have been passed with little or no deliberation, and the Treasury Benches alone cannot be faulted for this. The one Bill for which members of the Parliament chose to carry their Statute Books (“Bare Acts”) is the Jan Lokpal Bill, which currently finds itself in the wheelie bin. Despite all the prepared notes and legal research done by interns, researchers and an army of underlings, the quality of the debate on the Lokpal Bill was there for all to see.

It must be understood that legislative debates on proposed enactments are not mere academic debates. Students of the law will tell you that legislative debates are valuable tools of statutory interpretation since they reflect the will of the Legislature which the law is presumed to reflect. Where ambivalence characterizes the language of a legal provision, and two equally plausible outcomes appear to be emerging, external aids of interpretation such as legislative debates are used to conclusively determine the true import of the provision.

But how are we to ascribe or impute lofty meanings to shabbily drafted half-baked laws when either there is no legislative debate or the quality of debate is abysmal and worse than a high-school debate?

More often than not, when the Legislature is ill-equipped to comprehend the law sought to be enacted, it is corporate lobbyists who have a field day and who get what they want for their clients. This directly facilitates crony capitalism, and needless to state, the primary casualty is public interest.

Critically, the very business of the Parliament is to deliberate on laws since it is the primary law-making body of the nation, besides State Legislatures. In 2003-04, the cost of running both Houses of the Parliament was estimated at INR 18,430 per minute on a given session day. In 2006, the cost was estimated at INR 20,000 per minute. In 2010, the cost of each session day was estimated at INR 7.8 Crores. It is but obvious that in 2012, the figure must be significantly higher, probably in the range of INR 30-35,000 per minute.

For a country like India which could put these funds to better use, every minute of the Parliament counts. Time is literally money. Therefore, if our distinguished and cerebral law-makers fail to, or simply do not care to apply their minds to their primary function of law-making, they end up sacrificing public interest, besides burning tons of the taxpayers’ hard-earned money every minute.

If the political arm of the right-wing does not wish to remain just a party with a difference, but intends to form a government with a difference which has the mental bandwidth to tackle issues which call for expertise and require a nuanced approach, it must use the time spent in the Opposition benches to hone and elevate the quality of its debate on the law. After all, at some point, content has to and will prevail over rabble-rousing, circumlocution and pedestrian theatrics.

To this end, I intend to initiate discussions on proposed legislations on CRI to collect opinions from readers of CRI, regardless of which ideology they subscribe to. In undertaking these discussions on the law, we will try our best to not flood the discussion with excessive legalese, except where it is necessary to explain an issue or a point which turns on the understanding of a legal concept or term. The idea is to get more people to participate and contribute, and not drive them away with heavy-sounding jargon or to flaunt our knowledge of pentasyllabic words in Greek or Latin.

The object is to moot and engage our readers in informed debates, so that all of us may take an active interest in Parliamentary proceedings which naturally affect us. It would be wonderful if this vibrant forum, CRI, could serve as a repository of perspectives on critical legislations, so that these perspectives may be compiled and sent to the Ministry or Department concerned.

I am sure readers of CRI must be aware that before a bill is introduced in the Parliament, typically the Ministry or the Department, which acts as the nodal authority on the subject-matter of the bill, floats a policy paper or a discussion paper soliciting comments from members of the public, stakeholders from the industry and expert bodies. Earlier this year, a Policy Paper of critical importance was released for public comments, namely The Draft National Water Policy 2012.

The Policy paper has not been discussed in the media with as much rigour and scrutiny as it ought to have been, given that it deals with distribution of a precious life-sustaining resource such as water. Although the deadline for receipt of public comments by the Ministry of Water Resources was February 29, 2012, considering the implications of the Policy it is imperative that more and more people take part in the discussion. We wish to solicit opinions from our readers on the Policy. Accordingly, in the next post, we will undertake a preliminary discussion on the Policy.