22 - 10 - 2018

Atal’s legal hits & misses

There is no doubt that Vajpayee was a statesman, though few critics  have also pointed out his inability in fulfilling his own raj dharma and justifying Gujarat riots in the infamous Goa speech on the basis of the action-reaction thesis. But his government also contributed to the Constitution and law which was underplayed.

It is well-known that the RSS had rejected the Constitution in 1949 itself. On February 22, the Vajpayee government constituted an 11-member Constitution Review Commission under the chairmanship of Justice MN Venkatachaliah. The primary purpose was to declare naturalised citizens like Sonia Gandhi ineligible from holding top constitutional positions. But the members were equally divided on this issue and the chairman did not exercise his casting vote. Unfortunately, the Vajpayee government disregarded the commission’s other useful recommendations.

Since he was the Prime Minister of a minority government, 14 constitutional amendments during his premiership was not a mean achievement and demonstrates his abilities in developing political consensus. 

The Vajpayee government must be complimented for enacting the Information Technology Act, 2000, which deals with electronic commerce and cyber crimes. The Act is based on the United Nations Model Law on Electronic Commerce, 1996. Unlike other Acts which do not extend to J&K, this Act extends to the whole of India. It even punishes a foreigner if his crimes involve a computer or network located in India.

The whole country is now debating the NRC drive in Assam. The Vajpayee government had amended the Citizenship Act in 2003 and made getting Indian citizenship more stringent by laying down that those born after 1987 can become citizens only if both parents were Indian citizens or one was citizen and other was not an illegal immigrant.

The Freedom of Information Bill, passed in 2002, was a huge but incomplete step in the direction of accountability and transparency. The Bill had some shortcomings. There was no independent appeal mechanism against the denial or giving of misleading information and it did not say that information about life and liberty be provided immediately. The UPA drastically improved it when it enacted the current Right to Information Act, 2005. 

The Vajpayee government also promulgated an Ordinance and subsequently made an amendment to the Representation of People’s Act to overturn the Supreme Court’s judgment on the declaration by the candidates at the time of their nomination. The Vajpayee government diluted the apex court’s decision and tried to protect candidates with criminal antecedents. But the court struck down the controversial amendment.

To tackle the problem of terrorism, the Vajpayee government enacted the Prevention of Terrorism Act (POTA), 2002, replacing TADA, 1985. Civil liberty organisations criticised its provisions and the UPA government finally repealed POTA in 2004 and brought it in the new avatar in the Unlawful Activitives (Prevention) Act.

The government in 2000 asked the Justice VS Malimat committee to suggest measures to overhaul the criminal justice system. The committee made 158 recommendations and was not happy about the accused-centric adversarial criminal justice system and favoured the adoption of some features of inquisitorial legal system. Another controversial recommendation was to dilute the right of the accused to remain silent. Due to widespread opposition, Vajpayee could not pass laws implementing these recommendations. But the Criminal Law (Amendment) Bill, 2003, addressed a number of issues such as protection of witnesses. The introduction of plea bargaining was another milestone. Subsequently the UPA passed a law making it available in cases punishable with imprisonment up to seven years.

In contrast, a progressive legislation was the Juvenile Justice (Care and Protection of Children) Act, 2000, which gave effect to the 1989 UN Convention on Rights of Child. Ignoring the distinction between ‘bailable’ and ‘not-bailable’ offences, it said all children are to be released on bail except in three situations. It also laid down that all crimes by children will be tried by the Juvenile Justice Board that has replaced the Juvenile Court. But the Act still used the word ‘juvenile’ which is a negative term.  

The Civil Procedure Code was amended and Section 89 was inserted which provided for alternative dispute resolution (ADR) so that disputes are resolved outside the courts. But the drafting of Section 89 was widely criticised, with even the Supreme Court terming it as ‘trial judge’s nightmare’, ‘not happily worded’ and there are ‘creases’ to be ironed out.

The Competition Act, 2002, was a major legislative initiative of the Vajpayee government aimed to prevent practices having an adverse impact on competition. 

The Consumer Protection Act brought the delayed supply of goods and services under ‘restrictive trade practices’, widening the definition of manufacturing to include mere assembling parts of good manufactured by others. Similarly, offering consumer gifts or concessional rates or discounts were included within ‘unfair treatment to consumer’.

Vajpayee certainly enriched the Indian legal regime with several new laws and necessary changes in the existing laws.

 Faizan Mustafa

Vice-Chancellor of Nalsar University of Law