By Prof Upendra Baxi

GOVERNANCE

In 1851, French philosopher Pierre-Joseph Proudhon wrote that to be “gover­ned” is “to be at every operation, at every transaction, noted, registered, enrolled, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, forbidden, reformed, corrected, punished. It is, under the pretext of public utility, and in the name of the general interest, to be placed under contribution, trained, ransomed, exploited, monopolized, extorted, squeezed, mystified, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and, to crown all, mocked, ridiculed, outraged, dishonoured. That is government; that is its justice; that is its morality.”¹

Many constitutionally well-off citizens may regard this view as considerably restricted, looking only at despotic, and even barbaric, pathologies of governance. Many others—namely, the high consuming upper middle classes and most citizen bystanders—may regard such governance as necessary evil. But the constitutional underclasses (the dispossessed, disadvantaged, disabled and disenfranchised collectivity) wholly understand these states of affairs and cheat their way into survival, as best as they can, through the everyday reality of law, and the victimage, it causes.

The draconian law in Bihar—the Bihar Prohibition and Excise Amendment Act, 2018²—is a poignant example of what effects dragnet laws can cause. Its assaults on liberty apparently knew no limits as can be seen by the amendments now proposed. Advocates Danish Zubair Khan and Lokendra Malik, along with others, challenged this statutory denial even of anticipatory bail before Justices Sanjay Kishan Kaul and MM Sundresh who took the first steps towards pre-legislative assessment (PLA).

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Anyone with an ounce of commonsense would know that enacting large number of offences while keeping the number of judges, police, prosecutors and prisons the same result in a disharmony between tasks and personnel serving the institutions. When the personnel remain disproportionate to the tasks, institutions exceed their coping capabilities and the legal order itself becomes ridden with pervasive perversities. Yet, our legisprudence, jurisprudence and demosprudence seem indifferent to how the law they make will work in life. I used to ruefully say in the late seventies of the last century that if instead of the GDP, GLP (gross legislative product) became the measure of development, then India would count as the most developed society known to humankind! Unfortunately, it so acceleratingly and alarmingly, remains so!

No doubt, there have been some recent stirrings. The post-Bhopal factories; environmental, land acquisition; disaster management and relief laws have valuably crystallised the notion of impact assessment, though it is amended from time to time to serve the ends of “ease of doing businesses”.

There is also some talk about human rights impact assessments. All these are valuable tools and indicators for law, administration, interpretation and enforcement (LAIE, as I used to say to law students).

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Ahead of the winter session of Parliament, 2019, the Chairman of the Rajya Sabha, M Venkaiah Naidu, emphasised the need for a detailed Legislative Impact Assessment (LIA). He stated the need for “informed laws” in the country, highlighting the “social, economic, environmental and institutional impacts of legislative proposals”.

Chief Justice NV Ramana, in 2021, on the occasion of Constitution Day, made a fervent plea for LIA, and opined that absence of such studies lead to “big issues” that result in over-burdening the courts.

Most recently, Justices Sanjay Kishan Kaul and MM Sundresh concertised all this by asking the Nitish Kumar government to collect data on the number of prosecutions and cases pending in different courts under the Bihar Prohibition and Excise Amendment Act, 2018.

The Bihar law resulted in district courts and other courts and even the Patna High Court reeling with bail cases, with one-third of its judicial time already invested in handling them. Overcrowding in prisons had noticeably increased, given the bail denial.

The Bench, directing the Bihar government to file the report by April 25, 2022, said that the government should have thought about the fallout of its policy decision before bringing the law.³

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VARIOUS MEANINGS OF IMPACT

So far, the Supreme Court of India (SCI) has acted quickly to ameliorate “choking” of courts by over criminalisation of cases and vacancies lying unfilled in statutory fora. The Bihar case related to the adverse impact of a specific type of criminal statute on the administration of criminal justice. The state is asked briefly to show the numbers of offenders already booked and prosecutions pending now. Certainly, strict pro-bail polices will solve this important problem of person-power planning.  

But should all criminal law statues require such LIA, retrospectively or prospectively? The present state of pendency of investigation, pre-trial detentions given the bail policy, the delays in trial, conviction and punishment and wrongful prosecutions, altogether suggest a continuing ongoing and retrospective PLA.

The second type of meaning of impact would be compliance with adjudicatory orders and directions. India-wide studies of compliance are lacking, and were recently illustrated with regard to SCI directions concerning constitutional voidness of Section 67-B of the Information Act, 2000.⁴ 

The third type of impact relates to acts of interpretation of the Constitution by the judicial discovery or rediscovery of fundamental rights and of what we may call rights declared under Article 136 and 142 rights.  These contribute to new types of socialisation litigation and many a new jurisdiction in the SCI.

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As far back as July ’87, Justice DA Desai-chaired Law Commission of India submitted a judicial “manpower planning” report which bemoaned this phenomenon (incidentally, I was proud to contribute informally to its text) of  “…the overall lack of attention to this problem on the part of political parties,  press, social activists and the Bar. None of these groups have shown any effective will to campaign for adequate manpower planning for the Indian Judiciary, even while using the services of the Judiciary quite effectively for their own purposes from time to time. It must also be added that Judges of the High Courts and the Supreme Court of India, sitting or retired, have also not lent their weight to this constitutional cause in any major way. In other words, adequate reorganisation of the Indian Judiciary is at the one and the same time everybody’s concern and, therefore, nobody’s concern”.

Despite this report, the idea of judicial impact statement has not found favour with the SCI and the Executive. But when courts legislate, they often do, they create new normativities and justifiably add to the burdens and costs of administration of justice. Enforcement and administration of rights integrity structures entail time, person-power, money and governance costs and these are gracefully borne by a grateful democratic citizenry.

TOWARD A CONCLUSION

These notes touch only, howsoever important, one aspect of the problem—the issues raised by the device of PLA. The impact of law on society and of society on law presents a different set of issues even granting that both legislative and judicial processes and institutions signify essentially social dimensions of law and justice (to evoke a title from Julius Stone). Any social and cultural study of these processes must study both symbolic and instrumental dimensions of the legal act or omission.⁵

Moreover, the social life of law (practices and conducts) occurs as much, if not more, outside courtrooms and on other sites. There are also comparative dimensions of legal cultures and the ontic (world shaping) global normative civilizations, which variously impact human and social lives. It might be reasonable to devise nuanced forms of PLA, but issues of wider social impact remain elusive and beyond the efforts of the Bar and the Bench.⁶

The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

¹Samuel Hayim Brody, Martin Buber’s Theopolitics 34 (2018),(Quoting Pierre-Joseph Proudhon, The General Idea of The Revolution in The Nineteenth Century).

²Shivam Sharma, “Prohibition and Rights”, India Legal (pp 40-42), provides a very significant account of the law and proposed amendments. It would seem that the proposed amendments to the Bihar Act would exclude arrest for the first offence altogether, substituting it by a ‘reasonable’ fine. What would be ‘reasonable’ would, one hopes, depend on the socio-economic status of the first offender. CJI Ramana characterised the law as marked by “a lack of foresight”. (February 7, 2022).

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³The Attorney General of India himself suggested in Damodar S Prabhu vs Sayed Babalal (on May 3, 2011) in an unusual suo motu proceedings that “interests of justice would indeed be better served if parties resorted to compounding as a method to resolve their disputes at an early stage instead of engaging in protracted litigation before several forums, thereby causing undue delay, expenditure and strain on part of the judicial system” and judicial intervention was aimed at diverting the cheque bounce cases which “choked” the Court. Incidentally, the same Bench had insisted that UOI conduct a legislative impact assessment of the Consumer Protection Act, 2019 (COPRA). The Impact Study Report noted a 6.3% increase in complaints filed at the district commissions. Considering the 45% unfilled vacancies at the district level, the Report suggested a revision in the pecuniary jurisdiction and increase in the number of benches.

⁴See, Upendra Baxi ’A Sudden Flood of Mutiny?”. India Legal, August 2, 2021.

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⁵See, Upendra Baxi, “Upendra Baxi, “Who Bothers about the Supreme Court? The Problem of Impact of Judicial Decisions” Journal of the Indian Law Insti­tute. 24:4, 842 (1982). Interestingly, no one bothered about this. So, reiterated and updated it in Dimensions of Impact Analysis.” in Manoj Kumar Sinha & Deepa Kharb(ed.) Legal Research Methodology 182-190. (Lexis Nexis, New Delhi, 2016).

 ⁶See, Gerald Rosenberg. “Romancing the Court”, 89 Boston University Law Review 563- 579 (2009) and the literature cited in Baxi, above.

By Justice Kamaljit Singh Garewal

Bihar came under total prohibition in April 2016. This was part of an abstemious chief minister’s social reform programme. He may as well have said: “Will no one rid me of these drinkers.” The government went into overdrive to get the state legislature enact a draconian law called the Bihar Prohibition and Excise Act, 2016. Under this law, sentences are disproportionately harsh, police has power to arrest even people drinking privately at home, confiscate their properties and also detain all adults of the family present, including non-drinkers. The figures of cases registered are astoundingly high. About 3,48,170 cases had been registered and 4,01,855 persons arrested till October 2021. Twenty-five thousand accused are in custody awaiting a bail hearing, which usually takes a year. The conviction rate is abysmally low at 1%. Need more be said about this atrocious law?

“Will no one rid me of this turbulent priest”? Henry II uttered on Christmas Day, 1170. It was not an order but a lament. Thomas Becket, the Archbishop of Canterbury, had been on a bishop ex-communication spree, which had prompted this outburst by his king. Henry II’s four loyal and faithful knights hastened to Canterbury and assassinated the Archbishop. The phrase led to the development of constitutional law by forcing the king to agree that secular courts had no jurisdiction over clergy, thus separating ecclesiastic courts from temporal. The phrase is an example of a direction via indirection, in that it provides the speaker with plausible deniability when a crime is committed as a result of his words.

There are many versions of the incident. Two famous works based on this historic event are TS Eliot’s “Murder in the Cathedral” (1932) and Jean Anhouil’s play “Becket” (1959), which was later made into a film with two great actors, Richard Burton as Thomas Becket and Peter O’Toole as Henry II. The phrase is now used to defend the speaker to isolate him from the wrongs which may follow in its wake.

One can count many such Henry II moments in our own constitutional history, a prime minister’s exasperation leading to the passage of constitutionally invalid laws. Some examples are the Ninth Schedule in 1951, Emergency in 1975, Bihar Prohibition in 2016 and Farm Laws in 2020—the list may be endless. One must say to the credit of the present prime minister that, faced by a long drawn out protest by farmers, he showed courage to admit his folly and repeal the three farm laws.

The boss just has to say “will no one rid me of zamindars or agitators or drinkers or farmers”. His large body of competent secretaries and staff rush to draft a law as desired by the boss. Sometimes dreading constitutional predicament, the laws are immunised from legal challenge by another clever piece of legislation. The badly drafted law eventually gets overruled or repealed. But the people who bear the brunt are the citizens who have suffered the law’s rigours but never receive compensation for the damage inflicted on them.

The law and justice minister and his drafters remain untouched. In any case, by the time the courts declare the offending clauses void, the minister has probably lost his seat and with it, his job. A new government is in power. And the drafter has been driven into the sunset in a fancy car to a fancy home with children studying in universities abroad. Who is to blame for this? But something should be done to curb this tendency. Law-makers should realise that they create a huge problem by making laws which are unconstitutional. Instead, they always try to brazen their way through the judiciary.

Why not draft laws carefully even if they are meant to fulfill the political whims of some chief minister or diktats of his party or a significant socio-economic reform. Why not employ jurists/lawyers/retired judges to hold public hearings to have a good second look at the bill before it is placed before the legislature? There are a vast number of things which can go wrong with the drafting, and knowledgable people can and do notice such faux pas. They may recommend improvement in the draft or eraser of a clause if it offends the Constitution.

Of the three recent repealed farm laws, at least one was beyond the legislative competence of Parliament because “agriculture” is a state subject. Why was this glaring error not pointed out? Look what it cost the nation and its citizens. One retired chief justice in the Rajya Sabha is not enough. We need at least 25 retired judges to sit in the Upper House as advisors to the government of the day. In the French Conseil d’Etat, legislative bills are first of all examined by its judges before they become law. Only very occasionally do they come up for judicial review because they are usually near perfect.

Let us begin from the beginning. In 1950, Prime Minister Jawaharlal Nehru had some outlandish ideas about his and his party’s supremacy over the Constitution, judges and lawyers. The Constitution had been praised as very well drafted, but it soon became the first hurdle in Nehru’s land reforms and job reservations policies.

The Patna High Court had held the newly enacted Bihar Land Reforms Act, 1950 unconstitutional. The matter came up in appeal before the Supreme Court. Certain zamindars had also approached the Supreme Court under Article 32 of the Constitution. This was when Nehru panicked. It was his Henry II moment.

Nehru wrote to chief ministers in early 1951: “It is impossible to hand up urgent social changes because the Constitution comes in the way…. We shall have to find a remedy, even though this might involve a change in the Constitution.” Nehru’s exasperation was evident when he thundered, as he moved the Constitution (First Amendment) Bill to be referred to a standing committee in Parliament on May 16, 1951: “Somehow, we have found that this magnificent Constitution that we had framed was later kidnapped and purloined by lawyers.” Much later, Chief Justice M Hidayatullah had remarked: “Ours is the only Constitution that needs protection against itself.”

Will someone rid me of zamindars? And sure enough, Articles 31-A and 31-B were added to the Constitution through the Constitution (First Amendment) Act, 1951 to protect agrarian reforms. Legislative measures received further immunity from possible challenges in courts, through the newly added Ninth Schedule. There were 13 acts which related to land reform laws, immunising these laws from challenge on the ground of violation of fundamental rights.

The Bihar High Court had found the formula for payment of compensation unfair. Small zamindars who had annual incomes above Rs 500 were to receive compensation at 20 times the income and the big ones, whose annual incomes were above Rs 1 lakh, only three times their income as compensation. Such an obvious discrimination was asking to be declared discriminatory. In 1950, many other state laws were being declared unconstitutional by different High Courts on the basis of violation of fundamental rights. This caused nervousness in Prime Minister Nehru. He was still a provisional prime minister in a provisional parliament without an Upper House and without a mandate based on universal suffrage. Nehru was yet to face the people and was getting ready for the first general election with promises of land reforms, and job reservations.

After the Constitution came into force on January 26, 1950, state legislatures started to frame land reform laws to abolish zamindaris and secure land tenures of tenant/cultivators. No doubt, these were laudable objectives but laws as drafted were unconstitutional on the face of it. One must run through the list of enactments in the Ninth Schedule. After the original 13, another 271 were added.

The first addition of seven came in 1955. Entries 21 to 64 were added on June 20, 1964, a few days after Nehru’s death. Then two were added in 1972. Until then, all laws added to this Schedule related to land reforms or land acquisition or tenancy. This was the pre-Kesavananda Bharati era.

After this landmark judgment, 20 were added on September 7, 1974. These too related to new land reforms legislation. But on August 10, 1975 (note the date), six laws were added which had nothing to do with land reforms. This was Prime Minister Indira Gandhi’s time and Emergency was in force. Her advisers had counselled her to immunise laws like Industries (Development & Regulation) Act, 1951; Requisition & Acquisition of Immovable Property Act, 1952; Mines and Minerals (Development & Regulation) Act 1957 and Monopolies and Restrictive Trade Practices Act, 1969 and even election and internal security legislations. All these periodic immunisation drives to keep legislation away from judicial review went unhindered. Even after the Basic Structure Doctrine became a part of our constitutional law on April 24, 1973, the government did not refrain from adding laws to the Ninth Schedule which had nothing what­soever to do with land reforms.

In Waman Rao (1981), the Supreme Court held that amendments to the Constitution made on or after April 24, 1973, by which the Ninth Schedule was amended, were open to challenge on the ground that they were beyond the constituent power of Parliament as they damage the basic features of the Constitution. Apparently, in Minerva Mills (1980) and Maharao Bhim Singh (1981), it was felt that there were some inconsistencies in Waman Rao. The matter was finally settled by a nine-judge bench of the Supreme Court in I.R. Coehlo (2007) and it was held that laws in the Ninth Schedule were not immune from judicial review as the Schedule was a part of the Constitution. 

Nehru’s device to immunise laws from being challenged has now finally been laid to rest in I.R. Coehlo. What an effective vaccine it proved to be and what a long period of immunisation of over half a century. Plaudits to the civil servants for delivering this vaccine and eternal ignominy to the nation for accepting such abomination. Let’s hope the Bihar Prohibition and Excise Act, 2016 is the last of India’s unworkable and unconstitutional laws and we have no more Henry II moments.

Recently, Chief Justice of India NV Ramana spoke about the challenges faced by the Indian judiciary on the occasion of the Fifth Late Shri Lavu Venkateswarlu Endowment Lecture at Siddhartha Law College in Vijayawada. He cited the prohibition law in Bihar as an example of “lack of foresight” in drafting legislation that leads to courts being inundated with cases, and said it appears that the legislature has “not been able to make optimum use” of the Parliament Standing Committee system to “enhance scrutiny of Bills”.

Chief Justice Ramana pointed at the lack of basic scrutiny of constitutionality and absence of impact assessment. Both these points are extremely valid when a bill is prepared for a specific purpose to criminalise certain acts or bring about a desired reform. Legislating is serious business. It should not be left to middle government officials but should be handled by senior bureaucrats who have a deep understanding of constitutional law and the working of the judiciary.

For scrutiny of constitutionality and impact assessment, help must be taken of law schools, legal service authorities, think tanks and NGOs having expertise in the concerned fields. Finally, when the matter is before the legislature, meaningful debate must be allowed to be conducted instead of relying on majorities to get the bills passed. We should discard the “Ninth Schedule” syndrome which caused such devastation to constitutional principles. Even legislation unrelated to Article 31 was put in this Schedule to immunise it from challenge.

The Bihar law is an extension of the same thought processes. Frame an unworkable, impractical and tough law unmindful of its impact on trials courts and jails. And let over-burdened courts face the further burden of cases.

—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York