Laws must be enacted for the welfare of a republic—and so it seems they are. Until a closer scrutiny of these laws show them to be anti-people and anti-democracy with the aim of making ministers and all their lackeys, rich. These anti-people laws are drafted by clever IAS officers who state a laudable aim in the preamble when in fact, they want to achieve something despicable.
The most recent example is that enacted by the Rajasthan government called the Criminal Laws (Rajasthan Amendment) Ordinance-2017. An ordinance is issued in an emergency when the house is not in session but often misused by ruling parties to pass anti-democratic laws to thwart discussion. These ordinances must be ratified within six weeks of the next session of the house. Otherwise they automatically lapse.
This Rajasthan amendment prevents citizens from approaching the police or courts directly to probe corrupt public servants without sanction from the government. At one stroke, freedom of the judiciary, the press and the people to complain against corrupt or negligent public servants was taken away. This law has been challenged in the high court.
Added to the existing section 197 of the criminal procedure code which requires prior sanction, this makes government employees or public servants more powerful than God. Bluntly put, make as much money as you want, so long as you remain our private servants. This was the message sent by the ruling BJP to all public servants in Rajasthan.
But more horrific was the fact that through another gag order, the media could not report on any alleged corrupt public servant in Rajasthan without prior sanction of the government. This reduced the fundamental right of freedom of speech and a free press guaranteed in Article 19 (1) (a) to a charade because this anti-people law would be justified under one or other of the eight vague grounds legalising suppression of a free media. The Rajasthan ordinance nullified the Supreme Court verdict in 2015 that prior sanction under Section 197 of the CrPC is not mandatory in all complaints against public servants. The apex court clarified that the question of sanction has to be determined at a certain stage of the proceedings and not prior to complaining against a public servant. But the Vasundhara Raje government has usurped the powers of the judiciary and the media to decide whether a public servant is corrupt or not. To illustrate, on April 1, 2017, the Rajasthan C.I.D gave a clean chit to six gau rakshaks who assaulted and killed one Pehlu Khan, a dairy farmer from Mewat in Haryan, who was returning from a cattle fair in Jaipur. In his dying declaration, Pehlu Khan named six of his assailants who brutally assaulted him. But the C.I.D refused to book the six so that the All India Kisan Sabha called the probe a “hogwash and motivated.” The C.I.D comes under the chief minister who holds the home portfolio and so the media would have been prevented from reporting the murder or complaining against the C.I.D.
Another example of an anti-people law is the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,2013” or the LARR bill. Although this law was drafted ostensibly for the “public purpose,” it simplified land acquisition for the BJP government by promoting the interests of big builders while diluting the definition of “public purpose.”
In 2015, the Narendra Modi government succumbed to industry groups by trying to amend the LARR bill — again via the ordinance route and later by introducing the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement |(Amendment) Bill, 2015. But as the BJP did not have a majority in the Rajya Sabha, these amendments were stalled.
And so, the Modi government issued a diktat to all BJP-ruled states to enact investor-friendly land laws so that Andhra Pradesh, Gujarat, Rajashtan and Goa have all passed these laws to make it very easy for their governments to acquire land for “public purpose” and hand them to big builders through a state agency. All these laws have harmed the farmers, pushing them to suicide. But legislatures apart, the judiciary also declares laws, sometimes with a patriarchal mindset. For example, in May 2017, the Kerala high court annulled the marriage of an adult woman and granted custody to her parents, simply because she had converted to Islam to marry the man of her choice. So also, in the case of Goolrukh Contractor Gupta, a Parsi-Zoroastrian, married a Marwari under the Special Marriage Act, (SPA) 1954. Although she chose to remain a Parsi, the court held that the religious identity of a woman merges with her husband thereby departing from the aim of the SPA which is to enable a man and woman from different faiths to marry without renouncing their own religion or community.
The purpose of replacing the Special Marriage Act of 1872 with that of 1954 was to allow both spouses to follow their own religions. While a Parsi man who marries a non-Parsi is allowed inside the fire temple, a non-Parsi woman who is married to a Parsi man is barred from entry, making a mockery of gender equality.
And so these personal laws make a mockery of the right to freedom of religion guaranteed from Articles 25 to 28 of the Constitution. The so-called “Freedom of Religion” laws have been passed with the ulterior motive of preventing people from converting to Christianity although the ostensible aim is to protect freedom of religion.
The author holds a Ph.D in media law and is a practicing
journalist-cum-lawyer of the Bombay high court.