Law, they say, is a manifestation of the will of the people. And Parliament or the government, they say, is a from amongst the people and for the people. It is a moot point however, whether the laws in India are indeed a manifestation of the will of people (and for that matter, whether the government is indeed a government from amongst the people). Two recent events have brought this aspect to focus -- the first, when the Law Minister declared that a law would be passed for declaration of assets by judges and the second, when the Delhi High Court struck down a part of section 377 of the Indian Penal Code, to the extent it criminalized consensual sex between (adult) members of the same sex.
A parliamentary body is expected to make laws for the nation, laws by which people seek to govern themselves, and therefore people choose their law makers. There are, unfortunately, some gaps in the Indian Parliament’s recent track record. There are despairing combinations of complete lack of laws, bills which are going back and forth between or amongst committees, bills at various stages of evolution, all of which have created a legislative vacuum. The Law Commission of India and other bodies have recommended and at times even beseeched the government to make laws or amendments to existing laws on various subjects covering sexual harassment, surrogacy, money laundering, acid attacks, terrorism etc., but, unfortunately, Parliament is yet to make law on many of these subjects.
We do have several redundant laws. There is a Sarai Act, 1867, which provides how the ‘keeper of a Sarai’ is to maintain the ‘Sarai’ and render services. Anachronistic and downright bizarre laws are not a problem peculiar to India, it afflicts most democracies. But, the more pertinent question is, do the existing laws reflect the will of the people through Parliament?
The Supreme Court of India has attempted to fill in the vacuum created by Parliament. In 1999, the Supreme Court of India pronounced judgement in Vishaka v. State of Rajasthan and formulated guidelines on sexual harassment, and how the offence was to be dealt with. Parliament, however, is yet to make a law. Guidelines framed by the Court are an indictment of the constitutional process and are not a substitution for the legislative process.
Which is why, the decision of the Law Minister that a law will be passed to provide for declaration of assets is commendable, for, policy and law start with Parliament -- rather than the Court. Wisdom of ages tells us that a democratically elected body that is deliberative, representative of the people and participative ensures good governance. Parliament, with the resources at its disposal is much better placed to arrive at a policy decision than the court, and the court is acutely aware of these facts. The proposed law for declaration of assets by judges is a salutary move in that direction – it gives effect to the will of the people, transparency in constitutional and public offices.
Unfortunately, there is little debate on such crucial subjects, particularly during elections, when people must gather views on such issues from candidates.
This leads us to the second issue -- laws passed by Parliament that affect the rights of some people. What happens when the will of people is self-destructive? An anachronistic law affecting someone’s fundamental rights was perhaps waiting to be struck down. Irrespective of how many people are for or against homosexuality, and the merits of the judgement of the Delhi High Court, the moot point is whether Parliament can make or has made an informed decision that reflects the will of the people.
The democratic process calls for participation from the people and with about 50% people voting, the process was barely participative. Issues cannot be abandoned and left to adjudication in Public Interest Litigation. Politicians must be held accountable to their legislative duties. And the first step towards that is some trust between politicians and the people and participation from, we the people. The lack of participation in the recent elections can be remedied if there is more informed debate on issues and we the people help our parliamentarians discharge their functions. And if that fails, we still have the Constitution -- which protects us from the abyss of unrestrained power.
M.S. Ananth is a Delhi-based advocate