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Tag Archives | fundamental rights

The Predominance of the ‘Rule by Law’

How the Indian Government is using laws to undermine the ‘rule of law’

By Devika Kher

In the last few weeks, we have seen the government use its powers to restrict what we watch, hear or eat. These bans and restrictions have been made at the cost of fundamental rights such as the freedom of speech and the protection of personal liberty. They are good examples of how the ‘rule by law’ is taking over the ‘rule of law’ within India.

In his paper “What is Governance,” Francis Fukuyama explains the difference between the rule of law and the rule by law. ‘Rule of law’ refers to the principle that no one is above the law, including the makers and enforcers of the law. ‘Rule by law’ on the other hand, refers to the use of laws by the government as an instrument of power. In India, the rule of law is secured by the Fundamental Rights included in the Constitution of India; Article 13 (a) states that any law made by the legislative has to be in conformity with the Fundamental Rights of the Constitution, failing which it will be declared void. Some of these Rights include Article 14, which creates the right to equality and Article 21, which states that no person’s life and personal liberty can be restricted except according to the procedure established by law. The ‘Rule by Law’ also derives its legitimacy from the Constitution. For example, Article 73 states that the executive power of the Union extends to matters on which Parliament can legislate.

An example of the rule by law stepping over the rule of law would be Section 66A of the Information Act 2008 which punishes those people who send “offensive messages” online. Terms like “offensive” are ambiguous and their meanings vary from case to case; this makes them hard to enforce without personal bias. Such terms give unfettered powers to the government as described by Fukuyama. Section 66A was used to controversially restrict the broadcast of India’s Daughter, a documentary by Leslee Udwin about the infamous Nirbhaya case.

The documentary came into the news after the publication of an interview with one of the convicted rapists, in which he expressed his regressively patriarchal views. The uploading, transmission and publication of the footage of the interview was restricted by the Municipal Magistrate who used Section 66A as one of his grounds. The magistrate did not question the need for such an order before issuing it. The order is now being reviewed by the Delhi High Court.

The other famous recent event which makes the case for the predominance of the rule by law is the ban on beef in Maharashtra. Article 48, which enables the prohibition of cattle slaughter, was used to pass the amendment which essentially enforced the religious beliefs of the majority of the population. The rules set in the Constitution were used as per the whims of the government as an instrument to fulfil their motives.

The Constitution is the basis on which the Government of India functions. The Constituent Assembly designed its Articles to ensure that the ‘rule by law’ is limited by the ‘rule of law’. Unfortunately, going by the government’s decisions in the last few weeks, it appears that the law instead of being the king of the land has been reduced to an instrument of power of the government of the day to push through its own agendas.

Devika Kher is a Research Associate at Takshashila Institution. Her twitter handle is @DevikaKher

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A Lacuna of Logic

Why the government’s defence in the Priya Pillai case is not only unsound, but also self-defeating

By Madhav Chandavarkar

On January 11th, Greenpeace activist Priya Pillai was prevented from flying to London by immigration officials on the basis of a look-out circular issued by the Intelligence Bureau (IB). Pillai was on her way to the UK to speak before an All Party Parliament Group (APPG) on tribal affairs about how Essar Power, a company registered in Britain, was violating the human rights of tribal peoples in Madhya Pradesh. This restriction of Pillai’s fundamental rights created a furore in the country, especially in light of the persecution faced by Greenpeace after the controversial IB report that claimed that NGOs were “actively stalling economic development”. Greenpeace immediately filed the inevitable writ petition challenging Pillai’s off-loading in the Delhi High Court. The case is currently being heard, with the bench reserving its judgment until a later date.

This post will not delve into the legal validity of the actions of the Ministry of Home Affairs (MHA) as that issue has been analysed by more able minds, and will indeed, be conclusively decided by the Delhi High Court. It instead factually and logically examines the arguments (if they can be granted such a lofty title) that the MHA put forward in its affidavit in defence of itself. It paints a ludicrous picture of global politics claiming that vested foreign interests seek to “subdue India’s increasing strength on global platforms”. The contentions raised by the counsel are rife with glaring issues; the facts are unfounded, the links drawn are tenuous, they reveal an archaic mindset, and the overall argument is self-defeating. If All India Bakchod wished to remind the country that they are more than just comedy roasters, they could simply parody the whole affair by reading out the affidavit verbatim.

The MHA’s defence, to put it in a nutshell, was national interest. It claimed that if Pillai had been allowed to “depose” before the APPG, it would have lead to reports on human rights violations in the UK (and somehow, automatically in the EU and US as well) that would have painted India in a negative light. These reports would have consequently damaged “India’s growth prospects, at a time when India is actively pursuing economic growth and development, which requires foreign direct investment and manufacturing capacity.”

Firstly, Pillai was not “deposing” as that would imply that she spoke before an official Parliament body; while APPGs are officially recognised and regulated by the UK Parliament, they are not a part of it. A simple Google search of “all party parliament group UK” links you to the page of the official website of the Parliament on All-Party Groups. You don’t even have to click on the link to read the description of them as “informal cross-party groups that have no official status within Parliament.”

Next are these reports on human rights violations that are apparently part of a “system of various ‘instruments of control’” by “some foreign nations/groups of nations” to “further their ‘core objectives of foreign policy” “masked in the cloak of protecting civil rights”. The MHA ascribes an importance to them that seems detached from reality. A negative report is painted as having as bad an effect on foreign investment as a poor rating by global credit agencies like Standard & Poor. Terming them as ‘instruments of control’, the affidavit actually refers to these reports as if they are ends in themselves. The MHA states how determined nations will use such reports to target India without describing why; the creation of these reports seems to trump other concerns like trade, security, or national interests when determining a country’s foreign policy.

The affidavit goes on to state that Pillai’s testimony would have had a “global cascading effect” as “all reports from various commissions and countries feed on each other and quote each other, thereby creating circular documentation”. The MHA seems to be under the impression that foreign governments and agencies function with the same cut-and-paste mentality of Bollywood scriptwriters, college students on Wikipedia, or even the Indian Government itself. For good measure, the MHA also states how these ‘instruments’ had been “used very recently against Iran, Russia and North Korea” because citing those countries to justify the restriction of human rights is always a valid argument.

The affidavit finally accuses Pillai of “travelling to UK with the clearly defined motive of carrying out a campaign against the Government of India in order to impact India’s image abroad” when she was actually campaigning against a British company that was allegedly violating Indian laws. It also singles her out for the ignominy of deposing before “a formal committee of a foreign parliament” when “other prominent Indian activists such as Medha Patkar, P V Rajagopal, ….. , Praful Bidwai, have never been known to have done so.” That Medha Patkar, has testified in front of the US Congress in 1989 again shows the MHA’s penchant for factual inaccuracy. The affidavit concludes by magnanimously offering to allow Pillai to travel abroad if she gives an undertaking not to express her opinions before foreign parliaments. Pillai thankfully, rejected the offer with disdain.

These are just some of the issues with the specific claims made in the MHA’s affidavit; the over-arching arguments fare much worse. As many people have already reported, the off-loading of Pillai did not prevent her from speaking before the APPG. In the modern age of the internet and Skype, a restriction on the movement of a person does not restrict the movement of their ideas. The MHA’s poor knowledge of modern communications was made more apparent when it stated that there were no restrictions on Pillai talking about the same information within India. The affidavit therefore started off on the wrong foot; it sought to justify a restriction of human rights when the purpose behind the restriction was never going to be achieved in the first place.

The second major logical flaw is in the crux of the argument itself. Let’s assume that these reports actually do directly hinder the potential of India’s economy to grow and attract foreign investment. The MHA’s proposed solution to reduce negative appraisals on the state of human rights in India is to, rather counterproductively, actively restrict fundamental rights. This bizarre strategy is a textbook example of a self-fulfilling prophecy, where attempts to avoid one’s fate end up actively taking you on a path towards it.

An appraisal of the affidavit leads to two possible conclusions; that the current government lacks either the mental capacity or the inclination to debate with dissenting points of view (both foreign and domestic in origin). Either of the two is disturbing enough, but the unfortunate reality is that it’s probably a combination of both. Also, given the mortal fear that the MHA seems to have of these reports as well as the fact that the reports cited are those that rate India low on religious freedoms, one begins to question the real nature of Obama and Modi’s supposedly bosom friendship.

Madhav Chandavarkar is a Research Associate at the Takshashila Institution. His Twitter handle is @MadChaP88

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Constituent Assembly debate on Fundamental Rights

By Ruchita Sharma

The fundamental rights were framed against the carnage of fundamental wrongs

The responsibility of drafting the Fundamental Rights was on an Advisory committee to the Constituent Assembly, comprising of members like B.R. Ambedkar, Diwan Bahadur, Acharya J. B. Kripalani, Rajkumari Amrit Kaur, K.M. Panikkar, Dr. S. P. Mookerjee, and V. B. Patel.

The committee began discussions while keeping in reference the constitution of Ireland and USA. The biggest issue was dividing the Rights in two groups – justiciable and non-justiciable which was later taken up by the Constituent Assembly itself. Justiciable rights are those which can be enforced in the court of law.  It was understood that these rights applied not just to the prevalent scenario but were guidelines to a position where the country as a whole hopes to reach. Right to property, movement and profession throughout the country where the first few rights unanimously accepted by the Advisory Committee.

To stress on importance on each and every word of the constitution, the word ‘citizen’ was changed to ‘person’ with respect to equality of law. The reasoning was simple – a court of law must not differentiate between individual on the basis on their nationality or citizenship.

Reminiscing on the callousness of British Government, the gravity of Right to Freedom was stressed. To this Diwan Bahadur expounded that an independence of nation does directly connote independence of society from untoward activities, because of which even a concept as crucial as freedom must be limited to certain restriction, keeping in mind the welfare of society. But to ensure that this provision doesn’t meddle with the right to livelihood of an individual, the concept of ‘illegal detention’ was introduced.

The intent of the Advisory committee was to provide as much freedom to individuals as it was possible in the light of circumstance of the country. In doing so, they limited a few rights to a certain extent. For instance right of freedom of expression, given its wide ambit, was one of the most controversial rights. To ensure its applicability in positive direction, Dr. Ambedkar explicitly stated that any publication or utterance of slanderous, seditious, obscene or defamatory matter shall be against the law and the Right shall issue no defence.

This clause of preventing sedition is a powerful tool in the hands of government and the points that opposed Dr. Ambedkar have turned out to be a real threat. In March, 2014 a group of students cheering for Pakistan during something as trivial as a cricket match was charged to be seditious. The point here to note, is not what happened but the power given to the authorities to do so. Reckless usage of the sedition clause leads to undermining the State authority.

But what was commendable was that even 60 years ago, the members were such visionaries that they provided freedom to press. This was not only uncommon at that age but also fearless.

However, it was despairing that the issue of rights of women in matters like marriage was initiated by the females in committee. For men who claim reinforce the nation for future, this was a rather lax slip.

The importance of these provisions can be seen by observing that some of these were actually against the law in force but the foundation of Fundamental Rights is so strong that the laws were changed to ensure Fundamental Rights of individuals is upheld.

After discussions in the Advisory Committee, these proposals were then deliberated in the Constituent assembly. The biggest test in front of the committee was defining the borders of Fundamental Rights between justiciable & non-justiciable and the most controversial amongst them were economic rights such as freedom of trade which was proposed to be included as a justiciable fundamental right. The constituent assembly wished to nationalise the key and basic industries. The committee later concluded that free trade directly impinges the rights of various provinces to make laws. Every law needs some safe guard and absolute freedom is not right. Reasonable restrictions as may be necessary in the interest of public must be imposed.

Another controversy arose with Freedom of movement. Though this was granted as a fundamental right, a clause that allowed reasonable restrictions of movement in the interest of general public was inserted. Many provincial representatives urged that each Indian province (state) was like a mini nation and every head must have the power to choose the welfare of its own people before that of another.

Another heated discussion centred on untouchability. Mentioning in the Fundamental Right that untouchability is abolished wouldn’t make it so. Mr Rajan Thakur said that untouchability was a direct consequence of the repulsive caste system and cannot be dealt with unless the caste system is done away with. It was like treating one symptom of a disease and for complete cure the disease must be dealt as a whole.

To ensure that minority is properly looked upon, the rights against discrimination were adopted. The Minorities’ Rights were absolute in nature, these included religion, education and special grants.

Dr Ambedkar said that the responsibility of the legislature is not just to provide fundamental rights but also and rather more importantly ,to safeguard them.

It can be contemplated that the reasoning behind these rights seemed more to differentiate between the governance of India under British rule and as an independent nation-state. Somnath Lahiri was of a peculiar opinion. He voiced that these rights seemed more from the point of view of the policemen than people.

With time these rights have evolved to become the heart of the Constitution. In the Kesavananda Bharati vs State of Kerala Supreme Court recognised this bundle of rights to be the Basic Structure of Indian Constitution. Further it was declared that Parliament via Art 368 was powerless to abrogate these rights in any form.

Fundamental Rights are indeed essential for the growth and development of individual and thus the nation. Following which the Constituent committee and Advisory committee outdid itself in forming a bundle of rights that one way or another reinforces every other right that the constitution confers. These rights have acted as a guarantor of justice, equity and civil freedom. From a broader perspective, fundamental rights are the cornerstone on which the civil society is established.

Ruchita Sharma is an intern at the Takshashila Institution.

This article is part of a series of posts on the constituent assembly debates, meant to highlight the various points of views and negotiations that went into the creation of the Indian Constitution. Each post analyzes the debates on a particular issue.

The previous posts are here: Post1.

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