Making a mockery of law-making

The Digital Personal Data Protection Bill, 2023 was passed by the Rajya Sabha on August 9 -- with a voice vote. The Opposition had staged a walkout in protest against the Prime Minister’s silence on the Manipur violence. The Bill was supported by Members of Parliament from the NDA,
the Biju Janata Dal and the YSR Congress Party.

The monsoon session of parliament was marked by a number of controversial bills being passed without debate and discussion. These bills included the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, and the Inter-Services Organisations (Command, Control and Discipline) Bill, 2023.

The National Capital Territory of Delhi (Amendment) Bill, 2023, gave the central government more control over the Delhi government. This bill was passed in the Rajya Sabha without any debate or discussion. The Opposition had walked out of the Rajya Sabha in protest against the Bill. The Bill, now law after the President’s assent to it, gives the central government the power to appoint and transfer all officers in the Delhi government.

The Inter-Services Organisations (Command, Control and Discipline) Bill, 2023, gives the central government more control over the Indian armed forces. This Bill was passed in the Lok Sabha without any debate or discussion. The Opposition had walked out of the Lok Sabha in protest against the Bill.

The passage of these bills without debate and discussion has been criticised by the Opposition and civil society groups. They argue that these bills are undemocratic and violate the basic principles of federalism and separation of powers. They also argue that these bills will lead to greater centralisation of power in the hands of the central government.

The government has defended the passage of these bills, arguing that they are necessary to strengthen national security and to improve the efficiency of the government. However, the Opposition and civil society groups had called for the bills to be withdrawn and to be debated and discussed in parliament in a democratic manner.

The passage of these bills without debate and discussion is a worrying trend in Indian democracy. It shows that the government is increasingly using its brute majority in parliament to
have its way on every matter and is becoming more authoritarian. This is a dangerous development that could have serious consequences for the future of our democracy.

How can our lawmakers do this? Can they do it without the laws being put to test before the constitutional courts for being passed without even a semblance of debate and discussion? Yes, they can. They are very clever, smart, and prescient when it comes to protecting their turf.

Article 212 of the Constitution of India states that “No court shall invalidate any law by reason of any procedural irregularity of the passage thereof in parliament.” This provision means that no legislation can be challenged in court on the ground that it was passed without proper debate or procedure followed in parliament.

This provision was inserted into the Constitution by the 42nd Amendment Act of 1976. The amendment was passed by the Indira Gandhi government at a time when it was facing a lot of opposition from the Opposition. The government used the amendment to protect itself from legal challenges to its laws. And the post-Emergency Morarji Desai government, which included the Jan Sangh, the BJP’s precursor, let it stay.

The provision has been criticised by many legal experts. They argue that it undermines the principles of democracy and the rule of law. They argue that it allows the government to pass laws without any accountability to parliament or the people. The provision has also been used by the government to pass a number of controversial laws, such as the National Security Act (NSA) and the Unlawful Activities (Prevention) Act (UAPA). These laws have been used to detain and prosecute people without trial.

The provision is a major obstacle to judicial review of legislation in India. It makes it very difficult for the courts to strike down laws that are passed without proper debate or procedure. There have been a few attempts to challenge the constitutionality of Article 212. However, these challenges have been unsuccessful. The Supreme Court has upheld the provision, arguing that it is necessary to protect the legislative powers of parliament.

It is unlikely that Article 212 will be repealed or amended in the near future. The government is unlikely to give up its power to pass laws without accountability. This is a major setback for democracy and the rule of law. And the Congress party having invented it, the Opposition has no moral claim to question the Modi administration for using it. It suits the present one. Sad and unfortunate.

Let me quote Babasaheb Ambedkar, the architect of the Constitution, who our politicians across the political divide quote all the time, when it suits them, to expose them all. 

A.  “The function of parliament is not merely to pass laws. It is also to discuss them, to ventilate public opinion, to educate the public mind, to make the laws acceptable to the people.”

B.  “The debates in parliament are not merely academic exercises. They are not merely verbal sparring between the government and the Opposition. They are a serious attempt to find out the best way of solving the problems of the country.”

C.  “The debates in parliament are a great educational process. They help to educate the people about the issues of the day. They help to create a sense of awareness and responsibility among the people.”

D.  “The debates in parliament are a great forum for the expression of dissent. They provide a platform for the Opposition to challenge the government and to put forward its own ideas.”

E.  “The debates in parliament are a vital part of the democratic process. They help to ensure that the laws are made in the best interests of the people.”

(The writer is a practising advocate in the Madras High Court)