Ear to the Ground: June 2019

Friday, June 14, 2019

Part VIII: Agenda of governance for new government: A Leader of Opposition

This is not a ceremonial post to be subjected to endless lawyerly arguments. It is critical to the checks and balances in a Parliamentary democracy and brings bipartisanship and neutrality to the institutions of accountability and transparency.

Prasanna Mohanty
New Delhi
June 5, 2019
UPDATED: June 14, 2019 09:28 IST

Agenda for new government: A Leader of Opposition

A legal debate was sparked in 2014 when the Speaker denied the LoP position to the Congress on the ground that it did not have the required 10 per cent members (55 of 545) in the Lok Sabha. (File photo)

Not having a Leader of Opposition (LoP) in the Lok Sabha is not unusual to Indian Parliament. The first LoP was designated only in 1969 and there was no such post in the fifth (1971-77), seventh(1980-84) and eighth (1984-89) Lok Sabha.

However, a legal debate was sparked in 2014 when the Speaker denied the LoP position to the Congress - the largest opposition party with 44 members - on the ground that it did not have the required 10 per cent members (55 of 545) in the Lok Sabha. Now the Congress has declared that it would not seek the position for falling short of the 55-mark (it won only 52) in the 17th Lok Sabha.

It is imperative that the legal arguments for and against recognising the LoP is revisited before the new Lok Sabha is reconstituted later in the month.

This article is the eighth in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth, fifth, sixth and seventh part.

Cutting through the legal clutter

While denying the LoP to the Congress, the Speaker went by the legal advice of the government's highest legal officer - the then Attorney General Mukul Rohtagi.

Rohtagi's legal advice dated July 23, 2014 made three broad points.

First, Rohtagi cited Directions 120 and 121(1)(c) of the "Directions by the Speaker of Lok Sabha" issued in 1956 to claim that "the Speaker is not obliged to recognise any member of the largest Opposition party in the Lok Sabha as Leader of Opposition in case the said party does not have the strength equal to 1/10th of the quorum required for a sitting of the House."

Direction 120 reads: "The Speaker may recognise an association of members as a Parliamentary Party or Group for the purpose of functioning in the House and the decision of the Speaker shall be final."

Direction 121(1)(c) reads: "In recognising a Parliamentary Party...(it) shall have at least a strength equal to the quorum fixed to constitute a sitting of the House, that is one-tenth of the total number of members of the House."

There is no mention of LoP in these directions. Rather, these are to "recognise Parliamentary Party or Group."

What was the purpose of these directions in 1956?

Direction 122 lists seven purposes: (a) allotment of block of seats in the House (b) allotment of room in the Parliament House (c) allotment of committee rooms for holding party meetings (d) supply of official documents; (e) nomination to a Parliamentary Committee; (f) submission of a panel of names to the Speaker for debates and (g) consultation for fixing business of the House or any other important matter coming before the House.

Rohtagi's second argument was that the recognition of LoP is "outside the purview of the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977."

As the very name suggest, the Salary and Allowances of Leaders of Opposition in Parliament Act of 1977 (SALOP Act) is meant specifically for the LoP and gives it a 'statutory' status. And, for the first time, LoP is actually defined in the law.

Section 2 of the law reads: "In this Act, "Leader of the Opposition," in relation to either House of Parliament, means that member of the Council of States or the House of the People, as the case may be, who is, for the time being, the Leader in that House of the party in opposition to the Government having the greatest numerical strength and recognised as such by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be."

There is no mention of 10 per cent strength but "the greatest numerical strength" of the opposition party is set out as the basis for recognising the LoP.

Rohtagi, however, argued that since there was no LoP even after the 1977 Act came into force - in the seventh and eighth Lok Sabha - the 1956 Speaker's directions still governed the LoP.

PDT Achary, who was the Secretary General of Lok Sabha during 2005-2010, has a different view.

He says: "Since the LoP is a statutory post one has to look at the relevant statute - the SALOP Act of 1977 - to determine the LoP. The 1956's Speaker's directions become irrelevant after this Act.

"Besides, following the enactment of the 10th Schedule of the Constitution (Anti-Defection Law) in 1985, every party is now considered a party irrespective of its strength in the House. Thus, the 10th Schedule has also made the Direction 120 of the Speaker's directions irrelevant."

Subhash Kasyap, who was the Secretary General of Lok Sabha during 1984-1990, however, gives primacy to the 1956 Speaker's directions saying that "no law", not the 1977 Act, provides that the Speaker's directions are not valid. At the same time, he also argues that the Speaker should recognise LoP because it is an "office of responsibility" and that a stable opposition is needed against a strong government for healthy democracy.

Rohtagi's third argument was about the presence of LoP in the 'selection committee' for appointments under the CVC Act, RTI Act, Lokpal and Lokayuktas Act and Protection of Human Rights Act.

He said while the CVC Act and RTI Act provided for substituting LoP with "the leader of the single largest group in opposition in Lok Sabha," all the four laws provided that no selection would be invalid "merely on account of any vacancy of any member in the Committee." Thus, he dismissed the legal need for LoP.

Looking forward

No matter who wins the legal argument, the LoP is critical to effective functioning of the opposition in the Parliament and its role in bringing bipartisanship and neutrality to the appointments in institutions of accountability and transparency - CVC, CBI, CIC, Lokpal etc. - can't be overlooked or undermined, no matter what the flexibility or ambiguity that exist in the legal frameworks as Rohtagi highlighted.

Achary reminds that in the Westminster model that India follows the opposition is a recognisable entity and the LoP is referred to as the 'shadow Prime Minister' because she/he is expected to be ready to take over if the government falls. The LoP also plays an important role in bringing cohesiveness and effectiveness to the opposition's functioning in policy and legislative work. "Now that there is a law recognising the LoP, passed by the Parliament, it has to be enforced and
implemented," he adds.

Achary also cites a good precedence set by the Delhi Assembly. In 2015, the BJP had just three representatives in the 70-member Assembly and yet, the Speaker Ram Niwas Goyal chose to appoint the BJP leader Vijendra Gupta as the LoP.

Part X: Agenda of governance for new government: Relevance of sedition in democratic polity

Sedition belongs to an era when the right to freedom of expression did not exist, nor the right to vote in or vote out governments every five years.

Prasanna Mohanty
New Delhi
June 13, 2019
UPDATED: June 14, 2019 09:24 IST

Agenda for new government: Relevance of sedition in democratic polity

File photo.

Misuse of sedition law in India is breathtaking. From slapping it on 68 Kashmiri students in Meerut for cheering Pakistani cricket team in March 2014 to that on 12 Aligarh Muslim University students on a mere allegation of assault by a rival group in February 2019, this law has been used liberally and casually irrespective of the political party in power.

It matters little that sedition charges are seldom held up in court - there were only two convictions between 2014 and 2016 while 179 were booked during the period - or that this law has disappeared or fallen to disuse in other democratic polity. There is a good chance it may actually be made more stringent in India.

Sedition, or Section 124A of the Indian Penal Code (IPC), is wide in its sweep: "Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government..." It is a cognizable (no arrest warrant needed), non-bailable and non-compoundable (no compromise or withdrawal of case is allowed) offence, entailing imprisonment for life and fine, or imprisonment for three years with or without fine.

This article is the tenth in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth, fifth, sixth, seventh, eighth and ninth part.

Seductive power of sedition

A colonial legacy, Section 124A was introduced in India in 1870 - after the 1857 mutiny - and was "extensively used to curb political dissent in India", says a 2018 Law Commission consultation paper on the subject.

Nevertheless, it found its way into the draft Constitution as a restriction on freedom of speech and expression. The Constituent Assembly was unanimous in opposition and struck it down.

The Law Commission quotes M Ananthasayanam Ayyangar registering his protest by saying that "...it must be the fundamental right of every citizen in the country to overthrow that government without violence, by persuading the people, by exposing its faults in the administration, its method of working and so on...except in cases where the entire state itself is sought to be overthrown or undermined by force...We have gained that freedom..."

KM Munshi, who played a key role in the deletion, is also quoted as saying: "As a matter of fact, the essence of democracy is criticism of government. The party system, which necessarily involves an advocacy of the replacement of one government by another, is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to a democracy..."

Talking about it in the Parliament in 1951, Pandit Nehru was even more scathing: "Now so far as I am concerned that particular section (Section 124A of IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass". Mahatma Gandhi, who like Nehru had faced sedition charges during the British rule, once said this about it: "One should be free to give full expression to their disaffection unless it incites violence."

It is strange this law survived such strong censure.

Kedar Nath Singh judgement of 1962

Post adoption of the Constitution, this IPC provision was once struck down as unconstitutional by the Allahabad High Court in 1958 but the Supreme Court overturned it in the famous Kedar Nath Singh vs State of Bihar case of 1962.

The apex court held its constitutionality but limited its applicability to "acts involving intention or tendency to create disorder or disturbance of law and order; or incitement to violence."

This change in the scope of the law holds true even now, though everyday experiences show continued arbitrariness in its use, necessitating the Law Commission's consultation paper of 2018 mentioned earlier.

What principle guided the Kedar Nath Singh judgement? The judgement itself explains it: "It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction."

Given the fact that sedition was rejected by the Constituent Assembly and finds no place in the "reasonable restrictions" on freedom of speech and expression in Article 19(1)(a) of the Constitution makes the validity of the assertion - "consistent with the Constitution" - highly contestable.

UK strikes it down as obsolete

The UK, from which India inherited the law, abolished it in 2009 saying, "Sedition and seditious and defamatory libel are arcane offences - from a bygone era when freedom of expression wasn't seen as the right it is today" As for inciting violence, it was reasoned that this already was a criminal offence and need no special law.

In the Indian context, the Law Commission paper also lists various IPC provisions to deal with actions threatening peace and public tranquillity, without warranting a separate law. It goes on to say that the US does have such a law but is very narrowly construed and fallen to disuse. Besides, the US Constitution proscribes any legislation curtailing right to expression. In Australia, the term 'sedition' was removed and replaced with references to 'urging violence offences' in 2010.

People of India are sovereign

The origin of the sedition law is traced to the medieval England and reflects a relation between the 'ruler' and the 'ruled'. Explaining the meaning of 'disaffection' used in the sedition law, the Bombay High Court said in 1906 that such a feeling (disaffection) "can only exist between the ruler and the ruled". Further, it defined 'disaffection' to mean "enmity, hatred or hostility or contempt and no doubt include all these". 'Hatred' and 'contempt' also a find place in the sedition law.

But once the Constitution was adopted by the people of India in 1950, 'the ruler and the ruled' relationship changed forever.

The people of India have become sovereign themselves, not 'the ruled' anymore.

All doubts about the status of the people of India were dispelled during the Constituent Assembly debate on the Preamble to the Constitution. The architect of the Constitution, BR Ambedkar said: "Beyond doubt it (sovereignty) vests with the people."

Thus, as sovereign, the people of India enjoy certain fundamental rights which include voting in or out governments every five years and criticise the performance of an incumbent government without being seditious.

Sedition is, in fact, anachronistic to such a political order.

Part IX: Agenda for new government: Reimagining Citizenship

The Citizenship (Amendment) Bill of 2019 raises several questions, including possible violation of Article 14 of the Constitution which provides equality before law and equal protection of law to "any person" within the territory of India.

Prasanna Mohanty
New Delhi
June 11, 2019
UPDATED: June 11, 2019 10:19 IST

Agenda for new government: Reimagining Citizenship

File photo for representation.

The run-up to the general elections witnessed the Northeast region erupting in protest against the Citizenship (Amendment) Bill of 2019 (CAB) in January this year. Citizens, ethnic groups, opposition parties, and even the BJP leaders and their allies opposed it for reasons ranging from fear of demographic changes to violation of equality before law and others.

The CAB seeks to amend the Citizenship Act of 1955 to grant citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians - leaving out the Muslims - from Afghanistan, Bangladesh and Pakistan - leaving out Sri Lanka and Myanmar - who entered into India on or before the 31st December 2014.

In Assam, for example, it has been pointed out that the CAB violates the Assam Accord of 1985 and the National Register of Citizens (NRC) being finalised now. Both (Assam Accord and NRC) are religion agnostic and set the cut-off data at March 24, 1971 for being declared as a foreigner or claiming citizenship. That is not all.

This article is the ninth in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth, fifth, sixth, seventh, and eighth part on anti-corruption architecture here.

Purpose of amendment

A reading of the CAB does not throw light on the basis of creating a new group of intended beneficiaries for citizenship. Its "Statement of Objects and Reasons," which is supposed to explain it, is silent.

A Joint Committee of the Parliament (JPC), which examined the amendment for two-and-half years and submitted its report in January this year, sought explanations and received two: (a) 'Cabinet Note' seeking the amendment "mentioned" it and (b) so did the 2015 and 2016 notifications of the Ministry of Home Affairs (MHA).

The JPC accepts these explanations without questioning. That is strange given the fact that a Cabinet Note is not a public document and its contents are not known, while all amendments to laws are required to be explained and justified in the Bill's Statement of Objects and Reasons.

Secondly, the MHA's notifications merely mention "religious persecution" for creating a new group of beneficiaries. These notifications amended the Passport (Entry into India) Rules of 1950 to add the six minority groups (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from two neighbours (Bangladesh and Afghanistan) and said they were "compelled to seek shelter in India due to religious persecution or fear of religious persecution."

Nowhere is it explained on what basis, data or assessment it was inferred that certain religious groups from certain countries are being persecuted on religion ground, but not others.

In fact, the Minister of State for Home Kiran Rijiju admitted that there was no authentic survey or accurate data on who would benefit from the amendment in the Citizenship Act of 1955. However, he said more than 30,000 people belonging to the minority groups, who are staying on Long Term Visa, would benefit. The JPC report too confirms it. It quotes the Intelligence Bureau (IB) as saying that post-amendment, those seeking citizenship "will have to prove that they came to India due to religious persecution."

Classification of beneficiaries and intelligible differentia

A bigger challenge to the CAB comes from the right to equality enshrined in Article 14 of the Constitution, which reads: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

A petition challenging the CAB is pending before the Supreme Court and would be taken up once the Parliament passes it. The CAB was passed by the Lok Sabha in January this year but not by the Rajya Sabha. With the dissolution of the last Lok Sabha, it has lapsed and needs to be reintroduced.

Aware of the need to confirm to Article 14, the JPC sought clarifications from the Department of Legal Affairs (DLA). The DLA said there would be no such violation and relied on the Supreme Court judgement in the Ram Krishna Dalmia vs Justice SR Tendolkar case of 1959 for the test of the "true meaning and scope of Article 14."

This judgement laid down two preconditions for equality of treatment in any classification: (i) it must be founded on "intelligible differentia", which distinguishes persons or things that are grouped together from others left out of the group and (ii) the differentia must have a "rational relation" to the object sought to be achieved.

The JPC does not seek or explain why or how non-inclusion of the Muslims in the classification of beneficiaries would not be discriminatory or violate Article 14. It simply takes a mere assertion of the DLA that it would be so. It is well known that the Rohingyas in Myanmar (some of them were deported from India to Bangladesh in January this year), Ahmadis in Pakistan and Shia Muslims in Bangladesh and Afghanistan (Hazaras) are facing religious persecution. The Indian Muslims who migrated to Pakistan at the time of the partition (known as Mohajirs) too face persecution in Pakistan.

Similarly, the JPC does not question why non-inclusion of Sri Lanka and Myanmar would not fall foul of Article 14. It accepts the MHA's explanation that the matter relating to refugees from these countries would be dealt with by the Standard Operating Procedure (SOP) issued on 29th December, 2011 - different from the CAB.

The 2011 SOP stipulates that "cases, which are prima facie justified on the grounds of a well-founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, can be recommended by the State Government/Union Territory Administration to the Ministry of Home Affairs for grant of Long Term Visa (LTV) after due security verification."

So, the SOP talks about LTV, not citizenship, and the basis of granting LTV is for refugees from Sri Lanka and Myanmar for facing persecution for a wider range of reasons than just "religious persecution."

In light of these differences, it is not clear how "intelligible differentia" will be maintainable before the Supreme Court.

Going forward

Quite clearly then the government would need to revisit the CAB before reintroducing it in the Parliament. Reimagining citizenship would not be just to overcome the legal questions that would be raised when the Supreme Court takes up the petition pending before it but also to bring it in line with India's vision of "Vasudhaiva Kutumbakam" (the world is one family).

Part VII: Agenda of governance for new government: A Lokpal that inspires trust

Given the patchy record and reputation of the existing anti-corruption mechanisms, the Lokpal of India has the onerous task of restoring people’s faith that the high and mighty could be made accountable for their transgressions.

Prasanna Mohanty
New Delhi
June 4, 2019
UPDATED: June 14, 2019 09:28 IST

Agenda for next government: A Lokpal that inspires trust

The appointment of the Lokpal has come under a cloud for not being bipartisan or transparent in the process. (Photo: Reuters)

Ared-letter day in India's fight against corruption passed virtually unnoticed when the President's Secretariat announced appointment of Justice (retd) Pinaki Chandra Ghose as the first Lokpal of India, along with eight judicial and non-judicial members, on March 19, 2019 - bang in the middle of a high-pitched election campaign.

It was the First Administrative Reforms Commission of 1966 which came up with the idea of a Lokpal as an independent body to inquire into corruption in high places after the Mundra and other corruption scandals hit India in the 1950s and 1960s and led to the resignations of two stalwarts of their time - TT Krishnamachari and Pratap Singh Kairon. The National Commission to Review the Working of the Constitution (2002) and Second Administrative Reform Commission (2007) too sought such an ombudsman.

Starting with 1968, when the first Lokpal Bill was introduced in the Lok Sabha, it took eight more such attempts -1971, 1977, 1985, 1989, 1996, 1998, 2001 and 2011 - before being finally passed in December 2013 and notified on January 1, 2014. Thereafter, it took five more years for the appointment of the Lokpal to happen in March this year. It will be a while before the Lokpal of India actually gets going.

This article is the seventh in a series that looks at the agenda for the Narendra Modi government's second term. Read the first, second, third, fourth, fifth and sixth part.

Credible process of appointment of the Lokpal

The appointment of the Lokpal, however, has come under a cloud for not being bipartisan or transparent in the process.

A bipartisan selection process, in which both the ruling and opposition parties have a say, is aimed at inspiring trust in the individual holding high office for neutrality or independence from executive interference. If this did not happen in the case of the Lokpal a part of the blame goes to the law itself - the Lokpal and Lokayuktas Act of 2013 .

The law does provide for representation of the opposition party. Section 4 mandates a Selection Committee comprises of the Prime Minister, who will chair it, and four other members - the Lok Sabha Speaker, Leader of Opposition in Lok Sabha, Chief Justice of India or a Supreme Court judge nominated by him/her and an eminent jurist as recommended by the rest four.

But section 4 (2) says, "No appointment of a chairperson or member shall be invalid by reason of any vacancy in the Selection Committee". It was this clause and the fact that no Leader of Opposition had been recognised by the outgoing Lok Sabha Speaker, the selection of the Lokpal went ahead without the opposition's representation.

Congress MP Mallikarjun Kharge, leader of the largest opposition party in the Lok Sabha, was invited to the Selection Committee meetings as a 'Special Invitee' on several occasions but he refused to join, protesting that there was no provision for a Special Invitee in the law and that such a person "would not have any rights of participation in the process of selection of the Lokpal" (meaning no voting right).

After the 16th Lok Sabha was reconstituted in 2014, the Speaker Sumitra Mahajan had denied the Leader of Opposition post to the Congress or to any other party for not having 10 per cent of the total membership of the House (or 55 of 545 seats). The Congress had emerged as the largest opposition party with only 44 members.

Faced with a similar situation in the selection of the CBI Director, the government had amended the Delhi Special Police Establishment Act in November 2014 providing that "where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in that House" would be part of the selection process as a member.

The government did introduce an amendment in 2014 on similar lines for the Lokpal but it was never passed.

As for transparency in the appointment process, section 4(4) of the law says, "The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chairperson and Members of the Lokpal".

But as a reply to the RTI query shows, the minutes of the meetings of the Selection Commission was denied by the government by saying that, "As regards the minutes it is submitted that the authorship of such documents which include 3-5 high level dignitaries does not vest in the Department of Personnel & Training (DoPT) and same have been shared as secret documents. Thus copies of the said documents cannot be provided".

Winning the trust of the people

Needless to say, the bipartisan appointment and transparency in the process need to be ensured to inspire faith in the Lokpal of India.

There are a few more critical challenges which need to be addressed too.

One is to strike out the amendment in the Prevention of Corruption Act of 1988 which brought back the 'single directive' by stating that no inquiry or investigation can be conducted "without the previous approval in the case of a person who is or was employed, at the time when the offence was alleged to have been committed". The Supreme Court has already struck down such a provision twice in the past.

Such a change is important because the Lokpal is meant to investigate only those complaints which are "punishable under the Prevention of Corruption Act, 1988".

Second is to restore the original section 44 of the Lokpal and Lokayuktas Act of 2013 which required the public servants to declare their assets and liabilities and those of their spouses and dependent children within 30 days of the law coming into force. After postponing its application by using the leeway provided in section 62, it was amendment in 2016 to say that such disclosures should be made under "the rules" to be framed for the purpose. An Office Memorandum later declared that such rules were being "in the process of finalising". Nothing more has been heard of it.

Third is to provide the Lokpal with a credible "inquiry wing" as soon as possible. As of now, it will be relying on the very same "officers and other staffs" of government for looking into complaints of corruption (section 11). Given the records and reputations of the existing anti-corruption mechanism, this is a big handicap.

In the existing circumstances, therefore, the onus is now on the Lokpal of India to establish its credentials and win the trust of the people just as did TN Seshan for the Election Commission of India and N Vittal for the Central Vigilance Commission in the earlier decades.

Ear to the Ground