May 6, 2002


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Ashwin Mahesh

The laws, in hindsight

Among the key political developments this year, the National Commission to Review the Working of the Constitution submitted its report at the end of March. This commission, having pored over various aspects of the laws and their functioning, has produced a fairly voluminous document -- evidently, there is much that needs reform in Indian law. What seemed a political impossibility -- given the intense posturing and debate over the membership of the commission, its boundaries of authority, etc -- has actually come to pass, and Indian democracy is certainly the better for demonstrating the ability to complete such an exercise.

Conservatives and liberals alike will find material to applaud and abhor within the lengthy list of recommendations, and that is further cause for cheer. Clearly, the fear of one political organisation imposing its ideology on the review report has been over-hyped, and the actual recommendations reflect a broad spectrum of political opinion. There is, however, one obvious failing of this breadth -- the inspirational stuff behind modern democracy is belittled by other recommendations that aren't as impressive. Still, let us begin with the positives first.

A detailed examination of every provision is beyond the scope of this opinion; allow me, therefore, to discuss only a few in this column (a link to the entire document is provided below). The panel's recommendations broadly fall into a few categories -- rights, duties, electoral processes, the executive, judiciary, etc -- and are further two-fold in nature -- counting both recommendations that require constitutional amendments and others that require only parliamentary assent without actual changes to the Constitution itself. Please note that this article is limited to a few specific recommendations about fundamental rights that require amendments to the Constitution. The recommendations themselves are italicised; while opinion and discussion are not.

  • Protection against discrimination: In Articles 15 and 16, which guarantee broad equality as well as in the specific matter of public employment, prohibition against discrimination by the State should be extended to "ethnic or social origin; political or other opinion; property or birth". Currently, such protection against discrimination is limited to considerations of religion, race, caste, sex, place of birth. Moreover, the injunction against discrimination would be far from complete, even with the proposed additions; disability and sexual orientation, for instance, are not addressed.
  • Freedom of expression: All citizens shall have the right to freedom of speech and expression, which shall include the freedom of the press and other media, the freedom to hold opinions and to seek, receive and impart information and ideas. Although significant guarantees of free speech have long existed in the Constitution, the specific extension of what this freedom means is important, with implications in telecommunications, the Internet, television, and other industries that use evolving technologies to transmit, broadcast or exchange information. Already, the opening of these industries to private enterprise subject only to autonomous regulatory bodies is paving the way.
  • Contempt of court: A justification by truth shall be permissible; ie, an individual may not be held in contempt of court for actions and/or opinions that are in fact true. About time too, for the current standard allows the State to muzzle free speech if it would be deemed contemptuous of the courts. Stories of jurists using their offices to suppress civil liberties and to make obviously political judgments are legend in Indian legal history. Criticism of the courts on such matters has been muffled by the fact that judges are able to find dissenters in contempt -- ask Arundhati Roy -- even if the dissenting opinion were perfectly true!
  • Punishment: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. That this prohibition against State-led cruelty did not find its proper place in the original Constitution is shameful. There are more changes to Article 21 suggested, also. Currently, Article 21 merely affords protection against loss of life and liberty, and the panel recommended this addition: Every person who has been illegally deprived of his right to life or liberty shall have an enforceable right to compensation. Like much that is law in India, the road to realising these minimum standards will be arduous and lengthy. At the very least, however, the police officer brutalising suspects or arbitrarily confining citizens will have to account for his conduct, if the new standard is passed.
  • Mobility: Every person shall have the right to leave the territory of India and every citizen shall have the right to return to India. This is another proposed addition to Article 21. See that stamp on the back page of your passport that says "Emigration Clearance not required"? Ask yourself why, and the answers will reveal a legacy of mindless neo-colonialism and subservience to other nations' interests. At present, the poor in India cannot leave the country, even if in doing so they would be better off themselves in a foreign land and less of a financial onus to India!! If you thought that exit visas were the exclusive domain of Castro and Beijing, think again.
  • Justice: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Translation -- if you can't afford a lawyer or a defence, the State must make it possible for you to obtain one. This seems the basic minimum required of any system of law, but inquisitorial systems of law (such as those in England or India, unlike adversarial ones such as in America) haven't always mustered the courage to raise this bar. Gideon vs Wainwright, in the United States, conferred this right of proper counsel in 1963!
The energy of the review panel in furthering the legal safeguards of our democracy merit praise, and of that there is little doubt. Not all is well, though; the recommendations cannot be seen as unqualified wisdom, for some proposals merit criticism too. While noting such concerns, we must nonetheless ask that the political leadership in the country, which has been presented a set of recommendations, act upon it. If implemented, many of the suggested amendments will provide renewed impetus to our nation of laws. The challenge before our leaders is to muster the courage to act upon each of these recommendations, regardless of whether it is ultimately accepted or rejected.

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Ashwin Mahesh

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