argumentativelawyer

[argumentativelawyer]

Who is mightier the Rule of Law or the Law Makers themselves?

We the people have solemnly resolved to constitute ourselves in a Parliamentary Democracy. In brief this expands to democracy by the people, of the people and for the people. As a nation it is the cherished principles of such democracy like Universal Adult Franchise, Periodic elections, Right to Vote and Right to be represented in the Legislatures, Independence of Election Commission, Statutes for smooth and orderly elections, and so on and so forth.

Notably, in our country we have three important organs of the government, viz; the Parliament/Legislatures, the Executive and the Judiciary, who aid and assist each other for a seamless/smooth governance of our country. However, over the years it may be informally said and is also widely believed/accepted that its’ the Parliament which plays the most significant/integral role in the democracy. One among many reasons for the same could be that there is fusion of powers between the executive and the parliament( as elected representatives are appointed as ministers/Prime ministers) thus indicating that a same person can be the one who makes the law as well executes it. 

A perusal of the cherished principles of our democratic polity would reveal that Rule of Law is a cornerstone of the same. Further, the Rule of Law works as a bulwark against the high handedness of the State and its organs. Notably the Parliament acts as the foundation of rule of law, infact it has the duty to safeguard it and always uphold the same, so that majesty of laws that it creates should always stamp its authority notwithstanding all attempts to subjugate the same! Now we may ask, why such debate over who is mightier?  The image above gives us a bare idea of the state of politics in our country. In brief it can be seen how there has been a steady increase in the criminalisation of politics over decades. These stats are staggering because the politicians/parliamentarians who we have elected as our representatives for enacting laws in order to regulate our conduct and govern proficiently are the ones who possess a background which are an antithesis to the laws which have been made to regulate the conduct and determine the electoral process. The Representation of people’s act(RPA) 1951, is the primary statute which governs the electoral process. Basically it debars elected representatives from contesting elections or continuing as legislators if found guilty and hence convicted for the offences, inter-alia, affecting human body(rape, murder,etc), those involving moral turpitude, affecting socio-economic structure( untouchability, drug trafficking) and other electoral offences like hate speech, promoting enmity between different groups, etc Notably, the Supreme Court in the famous Lily Thomas Vs. Union of India 2013, judgement has held that if a sitting legislator is convicted by virtue of section 8 of the RPA, he/she shall be liable to be prohibited from contesting elections or continue as a legislator/minister for the remainder of their term plus the duration of punishment and in addition a period of 6 years thereafter. This is a much celebrated judgement as far as de-criminalizing politics is concerned. In addition to the above, there have been a catena of judgements of the Apex Court viz; Union of India Vs, A.D.R, 2002, Public Interest Foundation Vs. Union of India, 2018 has categorically stated the magnitude of the malaise of criminalisation in politics and consequently has given a host of reformative measures and strictures, which are a sine-qua non for cleansing politics! However, recently in an affidavit it was suggested by the government that  elected representatives should not be debarred for life, if convicted for electoral offences under section 8 of RPA, the reason d’etre that such representatives are not public servants and  should not  be kept on the same pedestal as the latter. This reasoning is somewhat puzzling because of some significant reasons, which are enumerated as follows: Firstly, all legislators are bound by an oath, which they have to take prior to assuming office which entails them to serve the citizens and the country and bear true faith  & allegiance to the Constitution and the laws of the nation.

Secondly, in Habibulla Khan Vs. State of Orissa, 1993, the High Court held that an MLA, is a public servant as he holds an office and performs public duty.

Thirdly, in M.Karunanidhi Vs. Union of India, the Apex Court held that the Prime Minsiter and Chief Minster inclusive, is decidedly a public servant in terms of clause(12) of section 21 of the India Penal Code, which also corresponds to clause(i) of clause(c) of section 2 of the Prevention of Corruption act, 1988. A minister is appointed/dismissed by the President/Governor and is subordinate to him/her, he/she derives salary for the public work done or the public duty performed and the salary is sourced from public funds. Fourthly, clause(viii) of section of the Prevention of Corruption act says that any person who holds office by virtue of which he is authorized or required to perform any public duty, is a public servant. Fifthly the Law Commission and Election Commission have repeatedly observed and suggested that a life ban on convicts is necessary to de-criminalise the politics. Factoring in the above reasons and various efforts which have been made by the Judiciary, Constitutional bodies, Civil Society groups and more precisely the laws of the land can indicate that Law Makers are not above the laws they themselves legislate. It may be a redundant exercise to then debate that can there be a conflict between the rule of law and the law makers. It’s trite in law that Rule of Law is supreme and is non-negotiable on any account!  Therefore, to ensure that our democratic polity and parliamentary form of government  remains intact, there is a need to uphold,preserve and swear by the Rule of Law, for which political and legislative reforms are the need of the hour because as they say Politics is the art of the possible, the attainable and the next best.

[argumentativelawyer]

Right to Privacy Vs Right to Information: which is superior?

Privacy is not something that I am merely entitled to, It’s an absolute prerequisite - Marlon Brando

It is quite interesting that we are at that point in history where we have to discuss, debate as to whether our privacy matters more or free flow of information should take center stage.  This question as to which is a superior right emanates from a recent decision of the Bombay High Court in the case of social activist Saket Gokhale’s case, wherein the Court ordered the Government (I&B ministry) to remove Mr. Gokhale’s contact details from its website, where  his personal details like phone number and address were displayed.

The moot point above is whether a person’s personal details are public or private information, having significant ramifications for the right to privacy and right to access information.  After the K.Puttaswamy Vs Union of India judgement, right to privacy has been an inviolable and integral part of our right to life and personal liberty qua Article 21 of the Constitution   and it cannot be abridged by ordinary laws, State actions or Private invasions, unless ofcourse they are subject reasonable restrictions. Thus in-toto Privacy is one right which directly hits at one’s dignity, liberty, freedom and existence!

Conversely, the right to information act,2005 was enacted with the objects and reasons of promoting transparency and openness in the governance structure, wherein common people were empowered to freely and seamlessly  access information from public authorities save as provided under the act itself and rules made thereunder. Thus, in brief this right was an extension of the Freedom of Speech and Expression under Article 19 of the Constitution.

As individuals we all assume that details like phone number, address are private/personal information, but the same is no where mentioned in our laws. Notably authorities like telecom service providers have supplied telephone directories to everyone containing the names and address of all subscribers. Similarly the Election Commission uploads list of all voters data online on  its website. Further, FIR’s in all cognizable offences must be displayed on the website as per an Apex Court order.

We can come across the usage of personal details of people in the form where the appropriate governments have collected, collated, stored all such details in order to supply public service to beneficiaries under various schemes and programs. Thus, we may be able to gauge that even though private details are considered intrinsic to one’s privacy rights, they are not so private after all and are in the public domain being accessed as public information. Interestingly, in the case of Avishek Goenka Vs Asish Kumar Roy, 2013, the Calcutta High Court held that an RTI applicant does not need to disclose personal details except those which may be required at the time of contacting him. Further, it held that personal details should be hidden by the government from public disclosure to safeguard the applicant from undue harassment and witch-hunting. The same judgement has been also relied upon by the Bombay High Court in the present case. However, ex-facie this judgement suffers from certain shortcomings as one must look at the appropriate law which should apply here. The RTI act provides that all information must be shared unless prohibited under sections 8 and 9. To be precise, under section 8(1)(j) of the act there is exemption to information relating to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause undue invasion of privacy of an individual unless the Public Information Officer or Appellate Authority, as the case may be, are satisfied that the larger public interest justifies the disclosure of such information.  

To bring home the point of which is a superior right here, the above provision is self explanatory as it protects individual privacy on one hand but in the same breadth it allows disclosure if a public purpose is associated. In our mundane life most of our personal details are in the nature of public activity like online application for examinations or registration for AADHAR or applying for Driving License and to everyone’s surprise even the Court judgments specifically mention in the order sheet name of respective adversaries, viz petitioner and defendant. Hence, we are already sharing a load of personal information whether physically or online and the question of dispute arising between these two rights becomes insignificant as far as the explicit provisions of the law have balanced the interests of both information seekers and individuals. However the caveat is that, this does not give an absolute license to information seekers to recklessly invade a person’s privacy! 

[argumentativelawyer]

Constitutional validity of enacted/proposed religious conversion bills/acts

We the people of India enacted, adopted our Constitution, to ensure a socialist, secular, democratic nation. One where diverse interests/feelings/ideas shall converge and keep us united. However, recently there have been emerging challenges like proposed laws by few States, to prohibit inter- faith marriages based upon ‘alleged forced/coerced conversions’. This must be seen in the light of Articles 15, 21 and 25 of the Constitution. These articles prohibit discrimination on religious ground, protect individual liberty and choice and guarantee right to freely practice/ profess a religion of choice.

 Incidentally the rationale of these proposed laws is that women of young age are being lured and coerced into marriages by men of a different religion which tantamount to an offence, supported by the fact that even Article 25 explicitly prohibits forced conversions!  Conversely, if one may look deep into Constitutional safeguards, the Fundamental Rights stand as the bulwark against any arbitrariness and tyranny of State actions. In this regard it’s pertinent to note that in the famous K.Puttaswamy judgement, the Apex Court has upheld Right to Privacy as integral to Article 21 and akin to Right to Life and Liberty. This brings home to the point that Privacy involves ‘right to choose’, then how can any law which ex facie restricts this right by way of prohibiting two adults to choose their life partner may be justified?  Secondly, Right to practice/profess any religion is again a fundamental right under Article 25, then if an adult who fully understands the nature and consequences of their actions, be prohibited from choosing one’s religion and practice the same, provided that such right is subjected to public order and morality, but such conditions don’t find any mention under proposed laws! Thirdly, matters of dress and food, ideas and ideologies of love and partnership are within central aspects of identity. Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters, Apex court observed in the Shafin Jahan Vs Asokan KM,2018 (Hadiya judgement)

Fourthly, the Allahabad High Court, in a recent judgement has held that, two adults are free to choose their life partners and one’s freedom in such case in inviolable and by this it has reversed its own previous judgments given in the cases of  Noor Jahan Begum and Another Vs State of U.P and others and Priayanshi and others Vs State of U.P and another, 2020.

Fifthly, after de-criminalizing same sex relations among matured adults, in the Navtej Johar Vs Union of India case by the Apex court, it is an anathema that when two adults have a freedom to decide their sexual orientation based on choice, then how can discrimination be made via a prohibition on choice of life partner. Sixthly, the fundamental rights mentioned above are not absolute, they are limited by reasonable restrictions and the procedure established by law. However, the Apex court, in the Maneka Gandhi Vs Union of India, 1978, has categorically held that, such procedure must withstand the test of justness, fairness and reasonableness and given the drafting of proposed laws, ex-facie they seem to be violative of Natural Justice. Hence, we may ask that if the Secularism is the Basic Structure of our Constitution, then how will a law which has potential of making a dent to this sacrosanct  principle will survive the test of Constitutionality?  It is well settled law that any law, which abridges any fundamental right, can be declared ultra-vires of the Constitution, to the extent of its unconstitutionality, by the Constitutional courts of this country, under Article 13 (judicial review).  But for the time being, we can only hypothesize what is in the future, as it is upto the courts to take cognizance of this issue and pronounce its verdict!