Month: October 2020

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EIA Draft 2020 and Constitutional Concerns

[This is a post by Minnah Abraham, Contributing Editor]

Introduction

Noting the several holes piercing right through EIA draft 2020, several concerns were immediately raised, questioning India’s obligations towards the larger interest of the general public, with its disturbing clauses, especially the removal of public consultations and the insertion of ‘post-facto clearance’. Not to mention that the draft was made to be available only in English and Hindi initially, which goes against the very principles of democracy, pertaining to the duty enshrined to the government to take the draft law to its people. This, however, is another concern, where a serious amendment is necessary in the Official Language Act for the government to issue draft laws and notices in regional languages. 

Coming back to the EIA Draft 2020, this draft law weakens India’s position toward environmental protection and upholding the Constitutional Article 48A, forsaking the duty of the State to protect, improve and safeguard the forests and wildlife of the country.

EIA Draft 2020

The Environment Impact Assessment 2020 is condemned as supportive of ventures on the grounds that the draft permits post-facto clearance meaning the concerned authorities can affirm an undertaking with no adequate formalities. This further implies the onus of acceptance of infringement lies on the polluter and the polluter can look for clearance after it has started work and has just caused ecological damages. There are just about 40 distinct undertakings that are barred from the natural leeway and public discussion in this way shouldn’t be affirmed dependent on the assurance and climate wellbeing rules. The exception is material to: 

  • Those tasks that are sorted as key by the legislature. 
  • Citizens cannot approach data identified with these undertakings. 
  • Public Highway ventures and inland water squander ventures. 
  • Projects up to one lakh 50,000 square meters. 

The projects that are recorded under the B2 classification require scarcely the two-stage cycle to conclude whether to allow or dismiss the proposition. 

As indicated by the draft, just government authorities, delegates, and project defenders are permitted to report the infringement. This clause has removed the privilege of individuals to report an infringement, which in the past has caused significantly to prevent enterprises and specialists from going excessively far inconsistency with misuse.

Ex-post facto clearance is not a new term, as it has been an evading practice often manipulated to entertain illegal or corrupted activities. While the current law states that projects to obtain environmental clearance prior to any commencement of the activity, this new insertion of ‘Ex-post facto clearance’ provides an exception that violates the requirement of mandatory clearance. 

Detailing on ‘ease of doing business’ and Constitutional duties

The whole point of the EIA draft 2020 is the way out on how not to do an environmental impact assessment. The emphasis is on getting environmental clearance and assent. India is under a global commitment to conduct EIA(s). It is a scientific, legitimate, and social apparatus to evaluate the conceivable ecological results of proposed projects. The draft EIA warning has three fundamental destinations: firstly, to guarantee that most environmentally damaging consequences do not need an EIA; secondly, make wide special exceptional cases for EIAs, for example, higher thresholds; thirdly, guarantee that those (ventures) that require EIAs are not examined by either people in general or concerned authorities. There is no proof that every one of these provisions will help accomplish the financial position. The straightforward explanation is that significantly under the current EIA 2006 system, no project is ever dismissed. The ministry of environment’s history is 100% approved for all activities. 

The rundown of businesses permitted to start ventures without EIA clearance incorporates probably the most perilous and high effect enterprises, for example, creation of synthetics and acids, concrete plants, oil exploration, stream valley projects and mining, among others. It additionally expresses that huge solar-based parks, safeguard ventures and mechanical domains do not need to go through any EIA procedural cycle under the pretext of ‘national interest’.

The proposed draft additionally expresses that red classified projects, high limit high impact projects would now be able to begin inside 5 km of secured territories and environmentally delicate regions, which was prior confined to a 10km radius area. 

Common Society participation and citizen engagement in Environment Impact Assessment measure have been considered incredibly pivotal in environmental administration and democratic government. Nevertheless, the basic apparatus of public discussion has been pulled back from practically all categories of polluting and high impact undertaking projects. Aside from taking them off the pre-project consultation procedure, they have additionally been denied any part in taking the perception of any violation or raising a voice against a pollution-risky and violating industry.

The draft additionally expresses that in the event of specific undertakings that actually have public consultation norms applicable, just material ecological concerns can be shared, no other connected social effect or long-term wellbeing concerns. The SC decided in Rural Litigation & Entitlement vs. State of U.P that Article 21 of the Constitution states that no individual will be denied of his life or personal liberty in a 1983 stoppage of limestone mining in Doon Valley. Necessitates that when commercial activities obliterate environments and ecological processes on which life depends, commerce must stop, on the grounds that the coherence of life through the protection of the fundamental cycles of nature is a constitutional commitment. It is additionally a moral and civilisational commitment. 

Concluding remarks

Although the EIA draft 2020 was brought forth with keeping in mind ‘conditions and threshold on the undertaking of some project or expansion or modernization of such existing project’, it has clearly stated the draft imposes restrictions and limitation upon the common public and making way easier for commercial giants and industries to carry forth the projects without having to screen through regulatory and adequate procedures. 

This ‘anti-ecological’ law is backward and against the inherent constitutional right to information. In a nation where debasement and infringement of law are common, the draft is by all accounts changed and recharged to serve the personal stakes of elites by preventing the truth from getting environmental change. 

The EIA 2006 thought about assessments of individuals through open discussion before the last endorsement of an undertaking. Not exclusively did the new draft eliminate the privilege of public counsel on specific exercises yet additionally abbreviate the 30 days’ notice period for hearing and handling reactions to 20 days. 

The legislature has created a false fantasy that environmental laws are an obstacle to economic development, and the vast majority, including the courts, cheerfully have confidence in this so-called myth. More or less, the EIA Draft 2020 is not only mistaken at certain levels, yet in reality, it consists of a summary of all potential infringement one could envision vis-á-vis environmental administration in the nation. The simplicity of working together cannot just rule over worries of public wellbeing and environmental concerns.

The EIA draft 2020, once executed, would prompt a generous increment in deforestation, illegal mining, and development exercises in earth weak territories and left with no opportunity for individuals or activists to report the infringement. In fact, these are the occasions wherein governments ought to increase the environmental-conscious rules and guidelines for a safer, better tomorrow.

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Marital Rape in India: The Public/Private Dichotomy

[This is a post by Panya Mathur, Contributing Member]

[Editorial Note: Constitutional Renaissance Blog would like to thank Ms Bansari Kamdar for having an insightful discussion on ‘Marital Rape Laws’ in India. Reach out to Ms Kamdar here.]

In India, there exists a complex conundrum in relation to the vast number of issues surrounding the criminalisation of marital rape. There has been a great measure of sanctity involved with marriage. Marriage is seen as a sacrament, a union of two souls, who will remain in complete exclusivity to one another for all purposes in their lifetime. This can be proved by the existence of personal laws in the country. For instance, the institution of marriage in the Hindu community occupies a prime role in the social construct of a Hindu. The concept of consent in the sexual relationship in a marriage is dicey and difficult to navigate. A marriage rests on the concepts of a moral cement that produces ‘two-in-one-ship’. 

The exception to Section 375 of the Indian Penal Code, 1860 (for brevity IPC) states as follows:

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
And the Section 376B of the Indian Penal Code reads as follows:

“Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.” 

The notion of the Marital Rape exception can be traced as far back as 1736 when Sir Matthew Hales declared that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which cannot retract.’  

The horrors of Harvender Kaur

In the case of Harvender Kaur v. Harmender Singh Choudhary, the Court did not hesitate to opine that “the introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop and that neither Article 21 nor Article 14 had any place in the privacy of the home. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond”. In the case of Smt. Saroja Rani vs. Sudarshan Kumar Chadha, the bench judge explicitly agrees to the judgement given in the Harvinder Kaur Case, hoisting the requirement of the existence of a private sphere wherein the law does not seek a stance, in order to preserve the moral fabric and sanctity of the society. 

However, what has been conveniently ignored by the Hon’ble Court is that in both conditions of rape and marital rape the primary definition of rape remains a constant that is sexual penetration or intercourse wherein there exists a lack of consent. Therefore, to prove that the crime of rape has occurred, it is essential to prove the absence of unequivocal consent. Moreover, the burden to prove this absence of consent usually rests on the victim; however, in certain cases such as that in the case of minors, it is presumed that consent does not exist due to the presumption created in law that such minors are incapable of providing consent to any sexual acts. Similarly, in the case where the victim and perpetrator are in a marital relationship, there is a presumption of consent on the part of the wife even when such equivocal consent required by Section 375 is not present. The same can be proved by the mere existence of the exception to Section 375 of I P C.  Moreover, the State has selectively penetrated into this marital sphere by enacting legislation that deals with the violence of women in matrimonial homes. PWDVA, 2005 and Section 498A of the IPC provides a remedy for women who are victims of forms of abuse in the marital sphere. Hence, to empower women and protect them from violence in a domestic relationship, the State should rightfully criminalize marital rape break down the public/private dichotomy. The Supreme Court in the case of Independent Thought v. Union of India, partly struck down a part of the exception clause in section 375 citing it to be in violation of the Protection of Children from Sexual Offences Act, 2012 and in violation of a child’s fundamental rights. The court notes that marriage cannot be the sole reason for any reasonable differentiation for girls between the ages of 15-18 years. In doing so the court explicitly made note of the fact that marriage cannot be reasonable classification. Even though the court keenly observed that the judgment did not speak of adult marital rape it is important to note that the court held a woman’s right cannot be subservient to her personal rights simply on basis of marriage.

In the case of State of Tamil Nadu vs. K. Shyam Sundar, the Court has held that whenever there is express arbitrariness that exists in law or State action, irrespective of whether it was legislative or not, Article 14 immediately springs into action, and the said action is struck down. Moreover, the term ‘arbitrary’ means an act that has been done in a manner that is unreasonable, and has been done at pleasure and has been done in a capricious manner without any determining principle, not founded on the nature of things, is non-rational and does not have a standard functioning principle. In order to find out that an act is arbitrary, there must be proof of ‘substantive unreasonableness’ and in the said circumstance, the test of reasonable differentia has not been complied with, because the purpose of criminal laws prohibiting rape or indeed any kind of physical violence or unwanted touching is to maintain a person’s bodily integrity. 

Conclusion

However, it must be noted that there are numerous other legislations that protect the rights of married women which have been provided by the Legislature. One cannot look at the exception to rape in isolation, and state that the rights of married women have been deprived. The overall position is that the husband can still be liable for domestic violence or cruelty under the IPC and other specific legislation. Spousal rape should be viewed as an abuse of the marriage relationship, with some protection being deemed necessary for the abused spouse. The State provides protection for the same under the Protection of Women from Domestic Violence Act, 2005 as well as the Section 498A of Indian Penal Code. Moreover, the marital sphere does not rest on the pillars of contracts sealed with permanent terms and conditions that must be maintained to continue the relationship. Neither does the concept of marriage exist on the tenets of Constitutional Law to enforce inalienable rights into a relationship of such sanctity. Thus, it can be concluded that there exists a lack of protection that exists when it comes to the rights of married women in the country. And this lacunae in the law should either be resolved by removing the exception 2 of Section 375 of the Indian Penal Code, that excludes married women from the purview of its protection, or by extending the purview of Section 498A and other such laws. 

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A Conservative Amendment in a Liberal Constitution: The First Amendment

[Editorial Note: The author would like to thank Tripurdaman Singh for his book Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India and Amit Varma for a wonderful discussion on his podcast Seen and the Unseen]

It was the year 1951 and the Supreme Court had passed two judgments, Brij Bhushan v. the State of Delhi and Romesh Thapar v. the State of Madras, upholding the freedom of speech and expression as guaranteed under the Article 19(1) of the Indian Constitution. It was before the First Constitutional Amendment when the Constitution was considered to be ‘fairly liberal’ as the freedoms guaranteed under Article 19 were not subject to so many restrictions as we see today. Restrictions were there in the original Constitution as well, no doubt, as they are necessary. Then, the freedoms were the rights and the restrictions were the exceptions to those rights. But what followed after these two judgments was an act of Parliament (more of Nehru’s) which turned the freedoms into (somewhat) exceptions.

The First Constitutional Amendment, 1951

It has to be kept in mind that the first amendment was discussed and passed by the provisional parliament which did not have a ‘popular mandate’. It was the provisional Parliament’s members who framed the Constitution but they were not the constituent assembly. But for Nehru, it did not make any difference, as he said in the assembly:

“Now, that Constituent Assembly which has gone into the history of India is no more; but we who sit here, or nearly all of us, still continue that tradition, that link. In fact, it is we after all, who was the Constituent Assembly and who drafted this Constitution. Then we were not supposed to be competent enough to draft the Constitution. But now, the work we did was so perfect that we are not now competent enough to touch it! That is rather an odd argument.” 

He was right somehow, they were not competent to amend the Constitution as they did not have any popular mandate and this amendment could have waited till the elections. But it was nothing, but sixty stormy days of debates, discussion and dictatorial behaviour! Before the amendment, Article 19(2) read as:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

It did not have any ‘reasonable restriction’ clause in it. But the restrictions were not so much. After the amendment, clause 2 of Article 19 read as follows:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

This means that parliament can frame a ‘law’ which can restrict the freedom of speech and expression if that law is in furtherance of the restrictions given thereunder. Restrictions like public order or incitement to an offence are vague and can create a long-lasting chilling effect and they are, even now. Suppose, there is a rally in protest against any law passed by the state, then the state can restrict that protest and say it violates the public order, hence, citizens cannot exercise their right to speak against the government and they can invoke the draconian section 124A (Sedition) of IPC, 1860 [which is an offence under a law made by the state].

The Reasons for Amendment and the Opposing Views

In the cases of Brij Bhusan and Romesh Thapar, the government attempted to curb the freedom of the press and the right to free speech and expression. But the Court struck down that imposed restraint on civil liberties. When the question of interpretation of Article 19 came up, the Supreme Court held that if the maintenance of public, order or securing the public safety was something which did not affect the security of the State or the overthrowing of the State, then there could be no restriction on freedom of speech. The amendment was being made to overrule these judgments [hence, the words public order etc. were added], but PM Nehru said ingeniously in the assembly as he said: “We are not putting down any kind of curb or restraint. We are removing certain doubts so as to enable Parliament to function if it so chooses and when it chooses. Nothing else happens when this Bill is passed except to clarify the authority of Parliament.” These amendments have chilling effects till now. We still see so many violations of civil rights in the name of these so-called restrictions.

Nehru’s vision of freedom was more conservative (and not so liberal) as a Prime Minister than as a leader of the Congress party during the freedom struggle. According to him, the freedom of speech ‘carries with itself responsibilities and obligations’ and if they are not performed, then there would be no freedom. This goes against liberal thought.

The Parliament and the government could have dealt with the problems of public order or incitement of offence through preventive detention laws. Now, supposing there are persons who are preaching murder and who are doing, something of that character, supposing there is some newspaper which is doing something of that character and the writer is there, the individual can be secured under the Preventive Detention Act. So, if the Parliament or the Government want to prevent a person or group of persons from committing acts which they consider to be against the interests of public order, then they are already clothed with sufficient authority to do so.

The amendment does not bear any fruit, except increasing the power of the government. Another restriction which is placed is the restriction on criticism or speech on ‘friendly relations with other states’. On this Shyama Prasad Mukherjee, who I feel is a text-book example of a classic liberal during the debates, said: “I have not been able to find any precedent in any part of the civilised world whereby law under the provisions of the Constitution criticism of foreign powers is taboo.”

He cast doubts on the meaning of ‘friendly relations with other states’, as he said: “we may say anything about a foreign country with the utmost friendship in our hearts but if that country misunderstands and says that it offends it or it affects our friendly relations with them, you are at once bound by the provisions of the Constitution.” If the government today passes any law in furtherance of these restrictions, then anything can be restricted and the civil liberties and freedoms will merely become exceptions.

The fears apprehended by Dr Shyama Prasad Mukherjee are now re-surfacing back in 2020 as we witness internet shutdown(s) in Kashmir using Section 144 of Criminal Procedure Code, use of draconian laws like National Security Act and Unlawful Activities Prevention Act (UAPA) to curb Freedom of Speech and Expression among other violations. We see these violations of free speech and civil liberties and the reason (not the sole reason though) behind such regressive measures is this hurried, hasty and (“unconstitutional”) First Constitutional Amendment Act. PM Nehru, despite his charismatic leadership and vision, did put the Constitution and civil liberties in danger.

In conclusion, let us revisit the prophetic warning given by Dr Mukherjee and try to draw parallels in contemporary times:

“Maybe you [Nehru] will continue for eternity, in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority? What is the precedent you are laying down?”

The fears imagined by Mukherjee in 1951 still haunts us today!

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Guest Post: Analyzing the Scope of Voluntary Forfeiture of Political Party Membership

[This is a guest post by Rohan Bhatnagar]

The Anti Defection Law under the Tenth Schedule of the Indian Constitution ensures that legislators maintain their allegiance towards their respective political factions. This article precisely analyzes the reasons behind members voluntarily forfeiting their party’s membership and provides solutions for curbing the same.

Introduction

Defection lures the Members of the Legislature to secure powerful berths. It is used as a bait for obtaining their services. Defection weakens the Opposition and India’s democratic foundations. The Tenth Schedule of the Indian Constitution specifies voluntary forfeiture of a political party’s membership as a basis for disqualifying a Member of the Legislature. The author purports to provide precise analysis and solutions regarding the issue in this article.

Analyzing Statutory Provisions to determine Voluntary Forfeiture of Party Membership

Paragraph 2 (1) (a) of the Tenth Schedule stipulates voluntary forfeiture of political party membership as a ground for defection. According to this provision:

“2. Disqualification on ground of defection— (1) Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) If he has voluntarily given up his membership of such a political party. ”

The provision necessitates that members must adopt the principles of political dignity and morality for prohibiting defection within the Legislature. Diligently adhering to these principles preserves the Legislature’s reputation. Further, it affirms allegiance to one’s political affiliation. 

The expression ‘voluntarily gives up membership’ is wider than the term ‘resignation’. A member may forfeit his party membership expressly or impliedly. It is discernible through his conduct. It must be authentic and must not be made under coercion. It becomes effective upon the occurrence of such an event. 

Rival parties entice members into assessing and affirming considerations such as ministerial berths. Factors including offering pecuniary benefits, differences in ideological and policy-related affairs and a party’s functioning style constitute defections.

The Tenth Schedule also includes splits outside the floor of the House within its purview. When members form a separate faction within the same political party by voluntarily forfeiting its membership, it attracts disqualification proceedings. 

In Rajasthan, several members of the State Legislature allegedly visited Delhi to collude with the opposing faction. The Speaker disqualified them for attempting to topple the State Government. Similarly, in Madhya Pradesh and Karnataka, legislators voluntarily resigned and defected to the opposing faction, inviting disqualification under the Tenth Schedule. 

The onus of proving lies on the person alleging that such a faction created a split in the original party. The test is a split involving one third party member. The time for engineering such a split is immaterial. A floor test determines public confidence in a party’s leadership. 

Article 191 (1) disqualifies members under any one of the following heads, namely, “being chosen as” a member or for “being a member” of the House. Article 191 (2), on the other hand, uses the phrase “for being a member of the House”. Thus Article 191 (2) and Paragraph 2 of the Tenth Schedule employ the same language.  

It implies that disqualification under the Tenth Schedule differs from the other categories enunciated under Article 191 (1). Members are not barred from consequently contesting elections, thus avoiding subsequent prohibition from becoming members of the Legislature. Further, Section 36 (2) of the Representation of People Act, 1951 empowers the Returning Officer to reject a candidate’s nomination. 

The Speaker or the Chairman acts as a Tribunal in disqualification proceedings. He must act in a quasi-judicial capacity for determining the question. His decision must be based on objective facts. The 33rd Constitutional Amendment mandates that the Speaker must accept a member’s resignation. 

Thus members cannot resign unilaterally. He inquires about the resignation’s genuineness upon its receipt. ‘Genuineness’ refers to its authenticity and the members’ personal choice to resign. It may be rejected if forged or made under coercion. However, the Courts may review his decision.

The Court’s scope for judicial review under Articles 136, 226 and 227 respectively is confined to the grounds of mala fides, violation of constitutional mandate, perversity in the Speaker’s decision and non-compliance with the principles of natural justice.  

Consequently, it bars members from using privileges such as the right of publishing proceedings and its prohibition, the right of excluding strangers, disciplinary powers, the power for punishing for contempt and regulating internal proceedings if found guilty of defection. 

Other Provisions

  • The Constitution of India, 1950: Articles 75(1B), 164(1B) and 361B bar any person who is disqualified under the Tenth Schedule from being appointed as a Minister or from holding any political post from the date of disqualification till the date of expiry of his office term or his date of re-election to the legislature, whichever is earlier. 
  • The Representation of the People Act, 1951: Section 9(1) of the Representation of the People Act, 1951 mentions disloyalty to the State as a ground for disqualification. Such a Member may be disqualified for 5 years from the date of disqualification. 
  • The Members of Rajya Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 3(a) of the Rules stipulates that the ruling party’s leader must submit a written statement listing the names and particulars of his party members. Rule 4(2) states that Members must furnish information concerning their particulars as required by Form-III before the Secretary-General of the House. 
  • The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985: Rule 10 and Rule 11 are framed on identical lines as Rules 3(a) and 4(2) of the Rajya Sabha Disqualification Rules, requiring the Ruling Party’s leader to submit a written statement listing the names and particulars of his party members. Further, the members shall also furnish information concerning their particulars before the Secretary-General of the House.

Using Judicial Precedents for analyzing the Scope of Voluntary Forfeiture of Party Membership

Scope of the Tenth Schedule

In Kihoto Hollohan v. Zachillhu, the Supreme Court observed the role of political parties in the electoral process and remarked that the Tenth Schedule must exist to avoid tarnishing the society’s conscience and moral fabric. The Court further observed that Paragraph 2 (1) (a) of the Schedule provided for equal application of the principles of political propriety and morality across the vast spectrum of the Legislature. 

Thus, members of the Legislature must be prohibited from defecting to restore public faith in the electoral process. The Court also struck down Paragraph 7 which barred the Court’s jurisdiction to adjudicate matters concerning disqualification of members.

The 52nd Constitutional (Amendment) Act’s purpose was ensuring that Members of the Legislature do not change their sides easily, since these acts are capable of destabilizing the system. Explanation (a) to Paragraph 2 (1) creates a deeming fiction. Courts assume a grave situation and consider that such material facts exist. They pronounce their judgment accordingly. Fully enforcing it ensures that the defecting member cannot circumvent the legal provisions. 

Preserving Freedom of Speech and Expression

The Court in Kihoto Hollohan’s case observed that the provisions of the Tenth Schedule neither violated the freedom of speech and expression nor infringed the Parliamentary and the State Legislature proceedings stipulated under Articles 105 and 194.

The scope of the expression ‘Voluntarily Given Up Membership’ 

The term ‘voluntary’ implies that the resignation is not based on threat, force or coercion. The scope of the expression ‘voluntarily given up membership’ was examined in Ravi S. Naik vs. Union of India & Ors. The Court observed that ‘voluntarily giving up membership’ cannot be equated with ‘resignation’. It has a wider connotation. Further, a member’s conduct sufficiently infers that he has voluntarily forfeited his party’ membership. 

In G. Viswanathan vs. The Hon’ble Speaker Tamil Nadu Legislative Assembly, where members of the Legislature met the Governor and submitted him a letter requesting him to dissolve the Assembly, it invited disqualification under Paragraph 2 (1) (a) of the Tenth Schedule. It was held that voluntarily giving up party membership may be express or implied. The essential condition is a member joining an opposing political faction. 

Separate Factions within the same party and Coalition Governments 

Members can be disqualified under Paragraph 2 (1) (a) of the Tenth Schedule if separate factions exist within the same political party. The time gap of such a split is immaterial. It may occur through unilateral severance or detachment from party links. However, the provision is inapplicable where a member having a different political affiliation withdraws his support to the Chief Minister in a coalition government. Its rationale is that their allegiance lies to the people and not towards members of a particular political party. 

Conclusion

Defection is a social evil striking at the foundation of the Indian democracy. It is anti-democratic and corrupt as it involves only a personal gain and not a conscientious change of heart of the legislator. Political parties must lead the way in ethical governance by not indulging such practices. Defecting members should be eternally barred from contesting elections. Intraparty splits must also be prohibited. Further, the Election Commission’s opinion in disqualification proceedings as a sine qua non in disqualification proceedings before the President or the Governor advert to their final decision restores public faith in the electoral mechanism. 

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Right to Protest, Restrictions and Democracy: Supreme Court and the Chilling Effect

Recently in the case of Amit Sahni v. Union of India, the Supreme Court passed a judgment on an infructuous matter which will have a long-lasting effect on civil liberties, especially the right to protest. The judgment of the Court feels like a judgment written by the central government in furtherance of an ‘executive court’. The 3-judges bench creates a chilling effect on the free speech and expression and the right to assemble peaceably (without arms).

The matter relates to the protests being held that Shaheen Bagh (New Delhi) and it was filed in February 2020. The protestors at Shaheen Bagh were dispersed in March after the Nation-wide lockdown which, ‘usually’ lead to dismissal of the matter. The judges ignored the factual matrix present in the case and the reasons for blockade were not because of the protestors, but the administration (police) which blocked the nearby roads and public routes. The Court classifies the constitutional and peaceful protests as “encroachments or obstructions.”

What did the court say?

The Court recognised the right to protest and the right to dissent in a democracy. The Court held that the Articles 19(1) (a) and (b), “in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State.” Then, the Court moves onto the “reasonable restrictions” stated under Article 19(2) and (3). The judgment looks like as if the norm is turned into an exception, and the exception is now the norm. The Court tried to balance the right to protest with the right of other citizens to commute. It must be noted that the balancing is not done by applying the principles of proportionality, but by presuming that the protests ‘always’ disturbed the smooth traffic and commute of the citizens. The Court did not accept the plea that “an indeterminable number of people can assemble whenever they choose to protest.” This creates a chilling effect on the right to protest – the court cannot sit as an executive and lay down policies. Suppose the government plans to make some amendment in the Constitution which infringes the basic structure of the Constitution, then should the citizens sit quietly and just witness the democratic backsliding or come on the streets to express their will? As Gautam Bhatia says “in today’s day, it is important to retrieve and to build constitutionalism without the Courts, even as it remains equally important to continue to engage with and in the courts.” The check on the executive power must come from the fourth branch of democracy, which is the civil societies, media and the citizens. (See the blog on Executive Aggrandizement and democratic backsliding)

The Right to Assemble Peacefully and the Right to Protest

The rights are guaranteed under clause 1 of Article 19 which are not absolute. The restrictions on those rights placed under clause 2-6 cannot be read widely, but narrowly. They are the exceptions to the rights and must be narrowly tailored. The Supreme Court in the case of Shreya Singhal v. Union of India held that “a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” Further, even in the Constituent Assembly the fears of wider interpretation of ‘reasonable’ restrictions were evident as one of the members Mr Sahaya said:

“In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country.”

The right to assemble peacefully is a fundamental right and an enabling right which leads to opening up of spaces and opportunities for civil societies and citizens at large to engage effectively in decision-making processes. This right help to foster increased transparency and accountability and are basic prerequisites for the ultimate goal of securing substantive enjoyment of different human rights in a constitutional democracy. The right to assemble peacefully is a vehicle which enables other socio-political-economic rights. The state can restrict the said right only by a law in the “interests of the sovereignty and integrity of India or public order”. Fearing the so-called “reasonable restriction”, one of the members of the constituent assembly said (H.J. Khandekar):

“For instance, we are given to believe that we could carry on organised agitation for the welfare of Labour, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent if it so desires, any agitation by Labour for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4).”

The Court by giving the state the wider power to designate the area of the protest and the number of people in the protest somehow validates the fears put forth by the Hon’ble member of the Assembly. The Court also says that the protestors, exercising their right to protest, infringes the right to commute of other citizens as protests lead to traffic jams etc. This requires balancing of rights, not just a blanket assumption. According to the Special Rapporteur on the rights to freedom of peaceful assembly and of association (20 March 2019, Geneva), it was recommended that, “The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.” On the choice of place and time, which the Court declined to entertain, the Rapporteur recommends that,

“The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly…… Likewise, public areas around iconic buildings are a logical place for to convey a message with regard to institutions housed in these buildings.”

If the state is to ‘choose’ the place of protest, then it will infringe the right to protest as the protests are done to create an impact on the decision-making process and are for maximum participation by the citizens. It is done to make citizens aware of the actions and inactions of the state. If the state chooses the place of protest, then it might choose a place far from the central place of attraction where those sitting in the institutions can see. Like it happened in Jaipur where the place of protest chosen by the state government was 9 kilometres away from the earlier site chosen by the protestors. The free flow of traffic should not automatically take precedence over freedom of peaceful assembly. In this regard, the Inter-American Commission on Human Rights has indicated that “the competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area”. Furthermore, the Special Rapporteur points to a decision of the Spanish Constitutional Court which stated that “in a democratic society, the urban space is not only an area for circulation, but also for participation.”

A protest is done in the larger public interest, it is done to exercise dissent against various policies of the state (and sometimes against the judgments of the Court). Holding a protest outside the city, or where there is no attention will ‘extinct’ the genesis of the protest and will fetch no fruits. The Supreme Court held “it has to be borne in mind that total extinction is not balancing” (see Asha Ranjan v. the State of Bihar (2017) 4 SCC 397).

The difficulties caused to the citizens exercising their ‘right to free movement’ is due to the states’ failure to take adequate and sufficient steps. If the state will take necessary actions to “ensure that such dharnas and demonstrations are held within their bounds [and the traffic is diverted, instead of closing the roads], it would have balanced the rights of protestors as well as the residents.” (Mazdoor Kisan Shakti Sangathan v. Union of India, 2017)

Instead of being a mute spectator, the state and the police authorities should have arranged routes and spaces near Shaheen Bagh for the commuters to exercise their right to ‘free movement’ instead of blaming the protestors for their own insufficiency and inadequacy. The decision of the court to provide a blanket ban on the demonstrations lead to infringement of rights of the citizens and creates a chilling effect. It is the duty of the state to balance the rights of stakeholders and the Court must only adjudicate and protect the rights of every citizen. The purpose of holding protests is that they reach concerned persons for whom these are meant and to exercise the democratic right guaranteed by the Constitution. The decision of the Court is wrong as it will lead to fresh restrictions on the right. To conclude, in the words of TM Krishna, “Unless public spaces are freely available for demonstrations, we will remain a mute democracy.”