By Justice Kamaljit Singh Garewal
Bihar came under total prohibition in April 2016. This was part of an abstemious chief minister’s social reform programme. He may as well have said: “Will no one rid me of these drinkers.” The government went into overdrive to get the state legislature enact a draconian law called the Bihar Prohibition and Excise Act, 2016. Under this law, sentences are disproportionately harsh, police has power to arrest even people drinking privately at home, confiscate their properties and also detain all adults of the family present, including non-drinkers. The figures of cases registered are astoundingly high. About 3,48,170 cases had been registered and 4,01,855 persons arrested till October 2021. Twenty-five thousand accused are in custody awaiting a bail hearing, which usually takes a year. The conviction rate is abysmally low at 1%. Need more be said about this atrocious law?
“Will no one rid me of this turbulent priest”? Henry II uttered on Christmas Day, 1170. It was not an order but a lament. Thomas Becket, the Archbishop of Canterbury, had been on a bishop ex-communication spree, which had prompted this outburst by his king. Henry II’s four loyal and faithful knights hastened to Canterbury and assassinated the Archbishop. The phrase led to the development of constitutional law by forcing the king to agree that secular courts had no jurisdiction over clergy, thus separating ecclesiastic courts from temporal. The phrase is an example of a direction via indirection, in that it provides the speaker with plausible deniability when a crime is committed as a result of his words.
There are many versions of the incident. Two famous works based on this historic event are TS Eliot’s “Murder in the Cathedral” (1932) and Jean Anhouil’s play “Becket” (1959), which was later made into a film with two great actors, Richard Burton as Thomas Becket and Peter O’Toole as Henry II. The phrase is now used to defend the speaker to isolate him from the wrongs which may follow in its wake.
One can count many such Henry II moments in our own constitutional history, a prime minister’s exasperation leading 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 list may be endless. One must say to the credit of the present prime minister that, faced by a long drawn out protest by farmers, he showed courage to admit his folly and repeal the three farm laws.
The boss just has to say “will no one rid me of zamindars or agitators or drinkers or farmers”. His large body of competent secretaries and staff rush to draft a law as desired by the boss. Sometimes dreading constitutional predicament, the laws are immunised from legal challenge by another clever piece of legislation. The badly drafted law eventually gets overruled or repealed. But the people who bear the brunt are the citizens who have suffered the law’s rigours but never receive compensation for the damage inflicted on them.
The law and justice minister and his drafters remain untouched. In any case, by the time the courts declare the offending clauses void, the minister has probably lost his seat and with it, his job. A new government is in power. And the drafter has been driven into the sunset in a fancy car to a fancy home with children studying in universities abroad. Who is to blame for this? But something should be done to curb this tendency. Law-makers should realise that they create a huge problem by making laws which are unconstitutional. Instead, they always try to brazen their way through the judiciary.
Why not draft laws carefully even if they are meant to fulfill the political whims of some chief minister or diktats of his party or a significant socio-economic reform. Why not employ jurists/lawyers/retired judges to hold public hearings to have a good second look at the bill before it is placed before the legislature? There are a vast number of things which can go wrong with the drafting, and knowledgable people can and do notice such faux pas. They may recommend improvement in the draft or eraser of a clause if it offends the Constitution.
Of the three recent repealed farm laws, at least one was beyond the legislative competence of Parliament because “agriculture” is a state subject. Why was this glaring error not pointed out? Look what it cost the nation and its citizens. One retired chief justice in the Rajya Sabha is not enough. We need at least 25 retired judges to sit in the Upper House as advisors to the government of the day. In the French Conseil d’Etat, legislative bills are first of all examined by its judges before they become law. Only very occasionally do they come up for judicial review because they are usually near perfect.
Let us begin from the beginning. In 1950, Prime Minister Jawaharlal Nehru had some outlandish ideas about his and his party’s supremacy over the Constitution, judges and lawyers. The Constitution had been praised as very well drafted, but it soon became 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 matter came up in appeal before the Supreme Court. Certain zamindars had also approached the Supreme Court under Article 32 of the Constitution. This was when Nehru panicked. It was his Henry II moment.
Nehru wrote to chief ministers in early 1951: “It is impossible to hand up urgent social changes because the Constitution comes in the way…. We shall have to find a remedy, even though this might involve a change in the Constitution.” Nehru’s exasperation was 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 found that this magnificent Constitution that we had framed was later kidnapped and purloined by lawyers.” Much later, Chief Justice M Hidayatullah had remarked: “Ours is the only Constitution that needs protection against itself.”
Will someone rid me of zamindars? And sure enough, Articles 31-A and 31-B were added to the Constitution through the Constitution (First Amendment) Act, 1951 to protect agrarian reforms. Legislative measures received further immunity from possible challenges in courts, through the newly added Ninth Schedule. There were 13 acts which related to land reform laws, immunising these laws from challenge on the ground of violation of fundamental rights.
The Bihar High Court had found the formula for payment of compensation unfair. Small zamindars who had annual incomes above Rs 500 were to receive compensation at 20 times the income and the big ones, whose annual incomes were above Rs 1 lakh, only three times their income as compensation. Such an obvious discrimination was asking to be declared discriminatory. In 1950, many other state laws were being declared unconstitutional by different High Courts on the basis of violation of fundamental rights. This caused nervousness in Prime Minister Nehru. He was still a provisional prime minister in a provisional parliament without an Upper House and without a mandate based on universal suffrage. Nehru was yet to face the people and was getting ready for the first general election with promises of land reforms, and job reservations.
After the Constitution came into force on January 26, 1950, state legislatures started to frame land reform laws to abolish zamindaris and secure land tenures of tenant/cultivators. No doubt, these were laudable objectives but laws as drafted were unconstitutional on the face of it. One must run through the list of enactments in the Ninth Schedule. After the original 13, another 271 were added.
The first addition of seven came in 1955. Entries 21 to 64 were added on June 20, 1964, a few days after Nehru’s death. Then two were added in 1972. Until then, all laws added to this Schedule related to land reforms or land acquisition or tenancy. This was the pre-Kesavananda Bharati era.
After this landmark judgment, 20 were added on September 7, 1974. These too related to new land reforms legislation. But on August 10, 1975 (note the date), six laws were added which had nothing to do with land reforms. This was Prime Minister Indira Gandhi’s time and Emergency was in force. Her advisers had counselled her to immunise laws 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 internal security legislations. All these periodic immunisation drives to keep legislation away from judicial review went unhindered. Even after the Basic Structure Doctrine became a part of our constitutional law on April 24, 1973, the government did not refrain from adding laws to the Ninth Schedule which had nothing whatsoever 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, by which the Ninth Schedule was amended, were open to challenge on the ground that they were beyond the constituent power of Parliament as they damage the basic features of the Constitution. Apparently, in Minerva Mills (1980) and Maharao Bhim Singh (1981), it was felt that there were some inconsistencies in Waman Rao. The matter was finally settled by a nine-judge bench of the Supreme Court in I.R. Coehlo (2007) and it was held that laws in the Ninth Schedule were not immune from judicial review as the Schedule was a part of the Constitution.
Nehru’s device to immunise laws from being challenged has now finally been laid to rest in I.R. Coehlo. What an effective vaccine it proved to be and what a long period of immunisation of over half a century. Plaudits to the civil servants for delivering this vaccine and eternal ignominy to the nation for accepting such abomination. Let’s hope the Bihar Prohibition and Excise Act, 2016 is the last of India’s unworkable and unconstitutional laws and we have no more Henry II moments.
Recently, Chief Justice of India NV Ramana spoke about the challenges faced by the Indian judiciary on the occasion of the Fifth Late Shri Lavu Venkateswarlu Endowment Lecture at Siddhartha Law College in Vijayawada. He cited the prohibition law in Bihar as an example of “lack of foresight” in drafting legislation that leads to courts being inundated with cases, and said it appears that the legislature has “not been able to make optimum use” of the Parliament Standing Committee system to “enhance scrutiny of Bills”.
Chief Justice Ramana pointed at the lack of basic scrutiny of constitutionality and absence of impact assessment. Both these points are extremely valid when a bill is prepared for a specific purpose to criminalise certain acts or bring about a desired reform. Legislating is serious business. It should not be left to middle government officials but should be handled by senior bureaucrats who have a deep understanding of constitutional law and the working of the judiciary.
For scrutiny of constitutionality and impact assessment, help must be taken of law schools, legal service authorities, think tanks and NGOs having expertise in the concerned fields. Finally, when the matter is before the legislature, meaningful debate must be allowed to be conducted instead of relying on majorities to get the bills passed. We should discard the “Ninth Schedule” syndrome which caused such devastation to constitutional principles. Even legislation unrelated to Article 31 was put in this Schedule to immunise it from challenge.
The Bihar law is an extension of the same thought processes. Frame an unworkable, impractical and tough law unmindful of its impact on trials courts and jails. And let over-burdened courts face the further burden of cases.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York