Month: April 2021

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Guest post: Does GNCTD (Amendment) Act 2021 stand the test of our constitutional ethos?

[This is a guest post by Preetkiran Kaur who is student of RGNUL, Patiala and an editor at Constitutional Renaissance Blog.]

Introduction

The Constitution of India begins with a declaration that India is a sovereign democratic republic. This idea of vesting real sovereignty in the people of the country was adopted by the Constitution makers during the days of framing the Constitution.

The rule by the people, of the people and for the people along with a Federal Structure was propounded to establish an egalitarian social order. However, a rigid federal model could not be adopted owing to the unique challenges being faced such as building communal tensions, poor state of agriculture and farmers along with low levels of economic development at the time of independence. It was concurred that a cooperative federal model (which has been discussed on this blog, here) shall be implemented where States and Union Territories shall be given certain autonomy in terms of legislative, executive and judicial powers. Geoffrey Sawer defined cooperative federalism as:

A system of governance where ‘each of the parties to the arrangement has a reasonable degree of autonomy, can bargain about the terms of the cooperation, and at least if driven too hard, decline to cooperate.’

Thus, as KC Wheare coined, ‘a quasi-federal model’ was opted for all the states of the nation which would rely on ideas of co-operation, negotiation, statesmanship and constitutional morality. However, the unique position of Delhi as the national capital became a peculiar case of contention. Hence, The Government of National Capital Territory of Delhi Act, 1991 (hereinafter referred to as ‘The Parent Act’) gave it the status of a union territory with a Legislative Assembly and Council of Ministers to aid and advise the Lieutenant Governor. It is neither completely vested with powers of a state but has more rights than a Union Territory.

Thus, Dr BR Ambedkar stated on the floor of the Constituent assembly that the Constitution is “both unitary as well as federal   according   to   the   requirement   of   time   and circumstances.”

Over the years, the interpretation of the NCT Act, 1991 has often been examined by the Courts and the landmark judgment of GNCTD v. UOI is an important one in this regard, which is summarised and discussed on this blog, here. The case settled the conflicting questions of law. However, the present Central government in the year 2021 passed the GNCTD (Amendment) Act 2021 (hereinafter referred to as ‘The Act’) which usurped the powers of the Legislative Assembly and the executive of Delhi. The author thus attempts to identify certain constitutional challenges against The Amendment Act, 2021 which undermines the principles of federalism and democracy.

Scrutinising the GNCTD (Amendment) Act 2021

Section 2 of The Act amends Section 21 of The Principal Act and states that “the expression “Government” referred to in any law to be made by the Legislative Assembly shall mean the Lieutenant Governor.” This provision is in direct contradiction with the democratic ideas of representative governance followed in India. The Parliamentary system practiced in India relies on elected representatives chosen on the basis of adult suffrage. Thus, members of the Legislative assembly of Delhi elected under Article 239AA represent the popular will of the People. Sixty-Ninth Amendment was specifically brought to establish the Westminster Model in Delhi and have a democratic set up. The use of the word ‘shall’ in Article 239AA clause (2) signifies that establishing a Legislative Assembly using adult suffrage shall be a mandatory provision. The real power vests with the elected representatives or the Council of Ministers which in turn have a collective responsibility towards the State legislature to ensure accountability. J. Chandrachud in GNCTD v. UOI opines that, “Collective responsibility, as a constitutional doctrine, ensures accountability to the sovereign will of the people who elect the members of the legislature.” 

Thus, the democratic idea of representative government is robbed in a case where Lieutenant Governor would be synonymous to the government. The Lieutenant Governor is appointed by the Central government and not directly by the people. The Central government represents a very small section of the population which cannot be vested with the power to replace elected representatives with nominated heads. The Lieutenant Governor has no collective or individual responsibility to the public whereas democracy ensures direct nexus of the two. 

Second, Section 3 of The Act amends Section 24 of The Principal Act and states that any matter which does not fall under the Legislative Assembly shall fall within the powers of the Lieutenant Governor. Article 239AA (3)(a) states that the Legislative Assembly shall have the power to legislate on matters in the State Lists except on issues of police, public order and land. These subjects fall under the purview of the Central government. Vesting the power to legislate upon these subjects on a nominated head instead of an elected representative undermines the principles of electoral democracy in India. It was iterated in GNCTD v. UOI that bestowing the Center the powers which have been constitutionally provided to the states is an act against the basic tenets of democracy.

 In addition to that, Section 4 of The Act amends Section 33 of The Principal Act and states that rules of procedure for conduct of its business shall be pari materia to the Rules of House of People. In addition to that, it truncates the Legislative Assembly to frame any rules pertaining to its day to day administration and is powerless in terms of conducting enquiries. Article 239AA (3)(a) also explicitly provides the power to the Assembly to conduct its business and frame rules accordingly. 

Lastly, Section 5 of The Act amends Section 44 of The Principal Act and states that any executive action can be taken by the Legislative Assembly only after consulting the Lieutenant Governor. The term ‘aid and advise’ has been employed in the Article 239AA implies that the Council of Ministers shall aid him in performance of his duties. In addition to that, the difference of opinion between the Lieutenant Governor and Council of Ministers shall be settled by the Lieutenant Governor only in cases where it is urgent for him to take immediate action. In the judgment of GNCTD v.UOI, the Constitutional Bench held that the phrase ’on any matter’ does not imply ‘every matter’. The primary law making power vests in the assembly and role of the Lieutenant Governor is merely that of an Administrator. 

These provisions which are in stark contradiction to the text of supreme lex, i.e. Constitution of India, and they violate the Doctrine of Pith and Substance. The Rule states that the Parliament or State Legislature shall exercise its functions as permitted by the Constitution and cannot encroach upon powers of the other. Here, the Parliament by passing the Amendment Act trespasses its domain and infringes upon the powers of the Legislative Assembly mandated by the Constitution. The Supreme Court in the case of Bharat Hydro Power Corporation Limited v. State of Assam laid down a three tier test to determine the application of the doctrine. For applying the principle of “pith and substance” regard is to be had: 1. The enactment as a whole; 2. To its main objects; and, 3. To the scope and effect of its provisions.

Looking at the Amendment Act as an organic whole and examining its statement of Objects and Reasons, the intent lies to limit the powers of the Legislative Assembly by entrusting legislative powers to the Lieutenant Governor. The effect of the provisions as discussed undermine the principle of representative government and collective responsibility which form the bedrock of democracy. 

This rule of ‘pith and substance’ stems from the idea of federalism which in the case of SR Bommai v. Union of India was classified as the basic structure of our Constitution. Encyclopedia Britannica defines federalism as:

“Federalism,   mode   of   political   organization   that unites separate states or other policies within an overarching political system in such a way as to allow each to maintain its own fundamental political integrity.” 

It was held in the celebrated judgment of Kesavananda Bharati v. State of Kerala that the basic structure of the Constitution cannot be amended or abrogated. The same view was reiterated in   Indira Nehru Gandhi v. Raj Narain, T.N.   Seshan,   CEC   of India v. Union of India and others and Kuldip Nayar v. Union   of   India   others.

Thus, by disturbing the distribution of powers between Center and state, it becomes an imminent threat on the co-operative federalism model followed in India. The federal balance calls for division of powers between Center and states with a comparatively strong center. However, the Rule of Law does not permit arbitrary interference in the powers of the State without a legitimate cause. Center has a constitutional duty to uphold constitutional morality and cannot act based on its whims and fancies. The Apex Court in the case of In  re:   Under   Article   143, Constitution  of  India,  (Special  Reference  No.  1  of  1964) held that “the essential characteristic of federalism is the distribution   of   limited   executive,   legislative   and judicial   authority   among   bodies   which   are coordinate with and independent of each other.”

Conclusion

To sum up, the author would like to conclude that the controversial Amendment Act passed by the Parliament violates not only the spirit of the Constitution but also the basic structure. The provisions of the Constitution entail a sovereign and democratic spirit where Rule of Law shall prevail. However, as discussed in the article, the legislative intent and the legislation as a whole do not pass the test of democratic federal set up of a nation. The present legislation although received the assent of the President but should be quashed by the Apex Court to fulfil its role of a ‘Guardian’ of the Constitution.

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Populism, democracy and accountability

Democracy means “the rule of people” and the word is derived from two Greek words, i.e. ‘Demos’ and ‘Kratia’, which literally translates to the Rule of People. India, the land of a heterogeneous population which is sometimes considered as a ‘fruit bowl’ (wherein different fruits denote different religions, cultures, castes, races etc.), is also a constitutional democracy. In a constitutional democracy like India, the People elect their representatives through Ballot-box or highly controversial EVMs on election day for five years and the government is guided by the principles of the Constitution. While voting at a ballot box, the voter expresses his will and choose her representative. In essence, the majority party in the Parliament enjoys the will of the people. But do they have the power to translate the will of the People into justifying their unconstitutional actions? That is the difference between a populist government and a democratic one.

The populists use the machinery of the state to fulfil their goals which are generally apolitical and are often against the established constitutional norms and they do it with the support of the “majority of the People” who fall in line with their ideology, simply by conviction. Generally, democracy requires different institutions of the state to be transparent, accountable and independent. But what happens in populist regimes is totally different, they capture all the so-called independent institutions. The capturing might not be direct, such as booth-capturing on the voting day, but it can simply be filling up offices of these independent institutions with persons who will deliver certain decisions which are favourable to the populist regimes. The only “legality” which these regimes have is the popular support of the People, our beloved Janta Janardhan.

The founding fathers of the Indian Constitution envisaged a dream of a nation built on principles of democracy. The Executive, i.e. The Prime Minister and his ministers, are accountable to the Legislature, which is accountable to the People of the Nation. When a government takes any decision, it must be constitutionally valid. A decision that goes against the principles of the Constitution is unconstitutional. Even though the populist regimes have a brutal majority in the Parliament, still ideally they must abide by the principles of the Constitution. But in fact, they do not. They do what they want to do. The populist regimes which are guided by religious fanatics are more dangerous as the important decisions, such as, locking down a religious congregation during a pandemic is taken by the heads of religious establishments than the government. The decision to stop the spread of the virus is taken by the contractors of divinity, not scientific mind, not democratically elected government. But such an attitude is only shown when the decision is about their religion. The minorities are usually slapped with several provisions of the penal code.

But complaints aside, what do we need in such populist regimes? Is there any solution? According to the Constitution of India, the Hon’ble Supreme Court is the guardian of the Constitution, the protector of rights, the third branch of the government to keep a check on the populist regimes, but where is the Supreme Court? There are dead bodies lined outside the cremation grounds, there are “The People” who are dying without oxygen, there are “the People” who are not getting necessary medication due to black marketing of the same, and there are children who are now orphans. Who will protect their rights? The government is silent, the parliament is silent and the Courts are silent- just like the bodies buried under the ground- silent.

The majoritarian government will not stop until they fulfil their agendas. They will win the States, they will get the seats, they will capture every institution. But the Supreme Court- the most powerful counter-majoritarian institution in the country- must come forward and protect the rights of the citizens. They have nothing to lose. An opposition leader will be sent to jail if she raises her voice. An NGO will be charged under FCRA or UAPA if they will question the government more than needed. A common man will be labelled as anti-national. But the Hon’ble Judges of the Supreme Court of India have nothing to lose.

The Hon’ble Supreme Court of India, please save us!

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Guest post: Trial by Media: Violation of Right to Reputation?

[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog. This article is a part of series where the author analyses Article 19 vis-a-vis recent events.]

Introduction- What is a Media Trial?

In India, Media is regarded as the fourth pillar of democracy. The media provides the public with information by its reporting and commentary on the ongoing social and public events in the society. Media acts as a watchdog that helps create awareness and aids in formation of opinion for the laymen and helps in moulding their perception of an event. Media Trial means the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt irrespective of whatever is the verdict in the court of law. With the advent of technology in recent times, media’s presence has been ubiquitous. Media trials occur when the media houses start acting as “public courts” or “Janta Adalat” and start interfering with the proceedings of a case. Media may subtly or overtly give their verdict on a case, ignoring the crucial difference between an “accused” and a “convict” thereby disregarding the principle “innocent until proven guilty.”

Freedom of press and Indian Constitution

Freedom of press as a standalone right doesn’t exist under the Indian Constitution. However, it is implicit under Article 19 (1) (a) of the Indian Constitution which provides for freedom of speech and expression for all citizens of India. This fundamental right is enshrined in the Constitution to protect the democratic values of the country. Freedom of speech and expression freedom to express in oral or writing, one’s thoughts, opinions, ideas and beliefs. Freedom of press isn’t exclusively mentioned in the Constitution as it was made clear by Dr. B.R. Ambedkar during the Constituent Assembly debates that no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as their right of expression was concerned. 

In the case of  Romesh Thappar vs State of Madras, the Supreme Court held  that freedom of speech and that of the press lay at the foundation of a democratic society, and without free political discussions, no public education is possible, which is important for the proper functioning of the government. It was observed by Justice Patanjali Sastri in the case that the freedom of speech and expression includes propagation of ideas, and that freedom was ensured by the freedom of circulation. The Supreme Court, through various cases has made it clear that right to speech and expression clearly includes the right to publish and circulate one’s ideas, beliefs and opinions through any mode of publication (it has been discussed on this blog extensively – check here). 

In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar , the Supreme Court while deciding upon the scope of the freedom of press, recognized it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”.

Right to reputation and Media Trials

Freedom of speech isn’t a sacrosanct, absolute right and is subject to reasonable restrictions. These restrictions can be for varied reasons including the grounds of right to privacy, right to reputation, contempt of court etc. Every person has the fundamental right to reputation in the same manner as they have the right to freedom of speech. Article 21 of the Indian Constitution includes the right of a person to live with dignity which also comprises the right to reputation.

Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protect the right of reputation of an individual by stating that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 19 of ICCPR further emphasises this right by stating that everyone shall have the right to freedom of expression but it shall be subject to restrictions such as- respect for the right to reputation of someone. The UDHR is only a persuasive and not a legally binding instrument but India has ratified ICCPR and thus, is bound to follow the Covenant. However, no express and consequent legislation has been made in India with this regard. 

Media derives its right of publication from Article 19 (1) (a) of the Indian Constitution but when a statement harms the reputation of a person it is said to be defamation. In India, defamation is considered both a civil wrong (tort) as well as a criminal wrong (Section 499 of the Indian Penal Code). Every criminal administration, across all democratic countries, also      ensures that an accused is given a fair trial. Right to fair trial in a criminal prosecution is an implied right under Article 21 of the Indian Constitution – as a fundamental right. A media trial jeopardises that right to fair trial of the accused, forgoing the principle of natural justice as well as also violating their right to reputation. 

In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, The Apex Court stated that, “―the impact of television and newspaper coverage on a person‘s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”

The justice delivery system in India being so excruciatingly slow, by the time the court pronounces a verdict, the media already disparages the image of not only the accused but also their family. There have been many instances where the media has passed its own verdict before the Court itself. In the infamous Jessica Lal case, when renowned lawyer Ram Jethmalani decided to appear on behalf of the accused his morality was questioned and one of the senior editors of a news channel branded him as trying to “defend the indefensible” thereby already declaring the accused guilty. 

Conclusion

Media has increasingly become an important part of everyone’s lives. It acts as a watchdog that strives to keep the public informed, aware and vigilant. However, at times the media tries to sensationalize the news in order to grab the attention of the viewers. With the advent of 24 hour news coverage, media houses have delved into sensationalism rather than sensibility. After the augment of Television Rating Points (TRP), media houses try to attract a bigger audience and hence resort to whatever means through which they can achieve high ratings. This can lead to the media overstepping its limit and acting as a judicial institution of its own. It is difficult for the general public to not get swayed by an opinion or narrative that is being pushed relentlessly on them. Such extensive coverage may endanger the interests of the parties involved especially if a matter is sub judice. 

Under the existing law of Contempt of Courts Act 1971, pre-trial proceedings  are exempt from falling under the ambit of contempt. Publishing material with respect to the parties involved can affect their rights to a fair trial. Due to such lacuna, the press feels empowered to write and circulate excessive or at times, distorted facts. 

The “Press Council of India” (PCI) which is a statutory body is concerned with developing and maintaining the standards of print media. The PCI has very limited powers under the Press Council of India Act 1978. The Act only refers to print media and hasn’t been updated to also include electronic media as well. Under the Act, the PCI can only “warn, admonish or censure the newspaper, the news agency, the editor or the journalist.” A mere warning is not enough to curb a media trial and the perils that arise because of it. The PCI should be given a stronger role to ensure that the media aren’t misusing their freedom of speech. 

The trial by media has gained a renewed debate after the “Disha Ravi toolkit case.” The High Court of Delhi admonished certain Media houses to ensure that proper editorial control is exercised while disseminating information to ensure investigation is not hampered. The Media Houses were criticised for its sensationalized reporting. Similarly, after Bollywood actor Sushant Singh Rajput’s death, the accused Rhea Chakraborty had to file a plea against the unjust media trial meted towards her. Chakraborty filed an affidavit stating that ‘the constant sensationalization of the case’ had caused her ‘extreme trauma’ and an ‘infringement on her privacy.’

Thus, Media trial has become a serious issue in contemporary times. The dangers arising out of such misreporting should be addressed and if needed, the government should take concrete steps to prevent it from happening and impose penalties on media houses that partake in the same. The freedom of press is an inalienable right in a democracy but at the same time, this freedom also exposes its loopholes. Therefore, it is time that the government takes active steps in ensuring a more conscious, sensible and accountable journalism. More importantly, the media should be conscious enough to report neutrally and understand that they cannot over step their freedom of press.