Bihar got here beneath the whole prohibition in April 2016. This used to be a section of an abstemious chief minister’s social reform programme. He can also as nicely have said: “Will no one rid me of these drinkers.” The authorities went into overdrive to get the country legislature to enact a draconian regulation known as the Bihar Prohibition and Excise Act, 2016. Under this law, sentences are disproportionately harsh, police have the strength to arrest even human beings consuming privately at home, confiscate their homes and additionally detain all adults of the household present, consisting of non-drinkers. The figures of instances registered are astoundingly high. About 3,48,170 instances had been registered and 4,01,855 men and women were arrested until October 2021. Twenty-five thousand accused are in custody looking ahead to a bail hearing, which generally takes a year. The conviction fee is abysmally low at 1%. Need extra be stated about this atrocious law?
“Will no one rid me of this turbulent priest”? Henry II uttered on Christmas Day, 1170. It used to be now not an order but a lament. Thomas Becket, the Archbishop of Canterbury, had been on a bishop ex-communication spree, which had caused this outburst with the aid of his king. Henry II’s 4 loyal and trustworthy knights hastened to Canterbury and assassinated the archbishop. The phrase led to the improvement of constitutional regulation with the aid of forcing the king to agree that secular courts had no jurisdiction over the clergy, as a consequence keeping apart ecclesiastic courts from temporal. The phrase is an instance of a course utilizing indirection, in that it offers the speaker achievable deniability when a crime is committed as a result of his words.
There are many variations of the incident. Two well-known works primarily based on this ancient match are TS Eliot’s “Murder in the Cathedral” (1932) and Jean Anouilh’s play “Becket” (1959), which used to be later made into a movie with two tremendous actors, Richard Burton as Thomas Becket and Peter O’Toole as Henry II. The phrase is now used to shield the speaker to isolate him from the wrongs which may additionally comply within its wake.
One can depend on many such Henry II moments in our personal constitutional history, a high minister’s exasperation main to the passage of constitutionally invalid laws. Some examples are the Ninth Schedule in 1951, Emergency in 1975, Bihar Prohibition in 2016 and Farm Laws in 2020—the listing might also be endless. One has to say to the savings of the existing high minister that, confronted via a lengthy drawn out protest through farmers, he confirmed braveness to admit his folly and repeal the three farm laws.
The boss simply has to say “will no one rid me of zamindars or agitators or drinkers or farmers”. His giant physique of equipped secretaries and workforce rush to draft regulation as preferred through the boss. Sometimes dreading constitutional predicament, the legal guidelines are immunised from felony venture with the aid of some otherwise piece of legislation. The badly drafted regulation finally receives overruled or repealed. But the human beings who endure the brunt are the residents who have suffered the law’s rigours however in no way acquire compensation for the injury inflicted on them.
The regulation and justice minister and his drafters stay untouched. In any case, via the time the courts declare the offending clauses void, the minister has probable misplaced his seat and with it, his job. A new authority is in power. And the drafter has been pushed into the sundown in a fancy auto to a fancy domestic with adolescents reading in universities abroad. Who is to blame for this? But something needs to be accomplished to curb this tendency. Law-makers need to recognise that they create large trouble via making legal guidelines that are unconstitutional. Instead, they constantly attempt to brazen their way thru the judiciary.
Why no longer draft legal guidelines cautiously even if they are intended to fulfil the political whims of some chief minister or diktats of his birthday party or a giant socio-economic reform. Why now not rent jurists/lawyers/retired judges to maintain public hearings to have an accurate 2d seem at the invoice earlier than it is positioned earlier than the legislature? There is a massive range of matters which can go incorrect with the drafting, and knowledgable human beings can and do observe such fake pas. They may also endorse enchancment in the draft or eraser of a clause if it offends the Constitution.
Of the three current repealed farm laws, at least one was once past the legislative competence of Parliament due to the fact “agriculture” is a nation subject. Why used to be this obvious error no longer pointed out? Look what it fee the kingdom and its citizens. One retired chief justice in the Rajya Sabha is no longer enough. We want at least 25 retired judges to take a seat in the Upper House as advisors to the authorities of the day. In the French Conseil d’Etat, legislative payments are first of all examined through its judges earlier than they come to be law. Only very now and again do they come up for judicial overview due to the fact they are commonly close to perfect.
Let us start from the beginning. In 1950, Prime Minister Jawaharlal Nehru had some outlandish thoughts about his and his party’s supremacy over the Constitution, judges and lawyers. The Constitution had been praised as very properly drafted, however, it quickly grew to become the first hurdle in Nehru’s land reforms and job reservations policies.
The Patna High Court had held the newly enacted Bihar Land Reforms Act, 1950 unconstitutional. The count number got here up in attraction earlier than the Supreme Court. Certain zamindars had additionally approached the Supreme Court below Article 32 of the Constitution. This was once when Nehru panicked. It used to be his Henry II moment.
Nehru wrote to chief ministers in early 1951: “It is not possible to hand up pressing social modifications due to the fact the Constitution comes in the way…. We shall have to locate a remedy, even even though this would possibly contain an alternate in the Constitution.” Nehru’s exasperation used to be evident when he thundered, as he moved the Constitution (First Amendment) Bill to be referred to a standing committee in Parliament on May 16, 1951: “Somehow, we have determined that this marvellous Constitution that we had framed was once later kidnapped and purloined with the aid of lawyers.” Much later, Chief Justice M Hidayatullah had remarked: “Ours is the solely Constitution that desires safety towards itself.”
Will anybody rid me of zamindars? And certain enough, Articles 31-A and 31-B have been introduced to the Constitution thru the Constitution (First Amendment) Act, 1951 to guard agrarian reforms. Legislative measures acquired in addition immunity from viable challenges in courts, thru the newly delivered Ninth Schedule. There had been thirteen acts associated with land reform laws, immunising these legal guidelines from the project on the floor of violation of necessary rights.
The Bihar High Court had determined the components for a fee of compensation unfair. Small zamindars who had annual incomes above Rs five hundred had been to acquire compensation at 20 instances the earnings and the large ones, whose annual incomes had been above Rs 1 lakh, solely three instances their earnings as compensation. Such apparent discrimination used to be asked to be declared discriminatory. In 1950, many different nation legal guidelines had been being declared unconstitutional with the aid of special High Courts on the groundwork of violation of vital rights. This brought about anxiety in Prime Minister Nehru. He was once nonetheless a provisional high minister in a provisional parliament except an Upper House and besides a mandate primarily based on prevalent suffrage. Nehru used to be but to face the humans and used to be getting equipped for the first ordinary election with guarantees of land reforms, and job reservations.
After the Constitution got here into pressure on January 26, 1950, kingdom legislatures began to body land reform legal guidelines to abolish zamindaris and invulnerable land tenures of tenant/cultivators. No doubt, these had been laudable targets however legal guidelines as drafted had been unconstitutional on the face of it. One has to run via the listing of enactments in the Ninth Schedule. After the authentic 13, some other 271 had been added.
The first addition of seven got here in 1955. Entries 21 to sixty-four have been delivered on June 20, 1964, a few days after Nehru’s death. Then two have been delivered in 1972. Until then, all legal guidelines brought to this Schedule associated with land reforms or land acquisition or tenancy. This used to be the pre-Kesavananda Bharati era.
After this landmark judgment, 20 have been brought on September 7, 1974. These two are associated with new land reforms legislation. But on August 10, 1975 (note the date), six legal guidelines have been introduced which had nothing to do with land reforms. This used to be Prime Minister Indira Gandhi’s time and Emergency was once in force. Her advisers had counselled her to immunise legal guidelines like Industries (Development & Regulation) Act, 1951; Requisition & Acquisition of Immovable Property Act, 1952; Mines and Minerals (Development & Regulation) Act 1957 and Monopolies and Restrictive Trade Practices Act, 1969 and even election and inside safety legislations. All these periodic immunisation drives to preserve regulation away from judicial evaluation went unhindered. Even after the Basic Structure Doctrine grew to become a phase of our constitutional regulation on April 24, 1973, the authorities did now not chorus from including legal guidelines to the Ninth Schedule which had nothing what¬soever to do with land reforms.
In Waman Rao (1981), the Supreme Court held that amendments to the Constitution made on or after April 24, 1973, utilizing which the Ninth Schedule was once amended, had been open to project on the floor that they had been passed the constituent energy of Parliament as they injury the fundamental points of the Constitution. Apparently, in Minerva Mills (1980) and Maharao Bhim Singh (1981), it was once felt that there had been some inconsistencies in Waman Rao. The count was once eventually settled by way of a nine-judge bench of the Supreme Court in I.R. Coehlo (2007) and it used to be held that laws in the Ninth Schedule had been no longer immune from judicial assessment as the Schedule used to be a phase of the Constitution.
Nehru’s machine to immunise legal guidelines from being challenged has now eventually been laid to relaxation in I.R. Coehlo. What a high-quality vaccine it proved to be and what a lengthy length of immunisation of over 1/2 a century. Plaudits to the civil servants for turning in this vaccine and everlasting ignominy to the state for accepting such abomination. Let’s hope the Bihar Prohibition and Excise Act, 2016 is the closing of India’s unworkable and unconstitutional legal guidelines and we have no extra Henry II moments.
Recently, Chief Justice of India NV Ramana spoke about the challenges confronted utilizing the Indian judiciary at the event of the Fifth Late Shri Lavu Venkateswarlu Endowment Lecture at Siddhartha Law College in Vijayawada. He mentioned the prohibition regulation in Bihar as an instance of “lack of foresight” in drafting rules that leads to courts being inundated with cases, and stated it seems that the legislature has “not been capable to make most useful use” of the Parliament Standing Committee gadget to “enhance scrutiny of Bills”.
Chief Justice Ramana pointed at the lack of primary scrutiny of constitutionality and absence of affect assessment. Both these factors are extraordinarily legitimate when an invoice is organized for a particular reason to criminalise sure acts or deliver about a favoured reform. Legislating is serious business. It needs to no longer be left to centre authorities’ officers, however, need to be dealt with utilizing senior bureaucrats who have a deep appreciation of constitutional regulation and the working of the judiciary.
For scrutiny of constitutionality and affecting assessment, assistance ought to be taken of regulation schools, criminal carrier authorities, suppose tanks and NGOs having know-how in the worried fields. Finally, when the depend is earlier than the legislature, the significant debate should be allowed to be performed as an alternative to relying on majorities to get the payments passed. We need to discard the “Ninth Schedule” syndrome which triggered such devastation to constitutional principles. Even rules unrelated to Article 31 was once put in this Schedule to immunise it from a challenge.
The Bihar regulation is an extension of the equal idea processes. Frame an unworkable, impractical and difficult regulation unmindful of its have an impact on trials courts and jails. And let over-burdened courts face the additional burden of cases.