Certain remarks by Chief Justice of India NV Ramana at an event organised by the Supreme Court Bar Association to celebrate India’s Independence Day have made the headlines. Lamenting the fact that legislations are enacted with a lot of ambiguities and gaps, this lack of clarity and purpose for which a law is made has resulted, according to him, in a lot of litigation and inconvenience to the government and the public.
The CJI recollected the debate which took place during the enactment of the Industrial Disputes Act wherein a CPM Member of Parliament discussed it elaborately. Such discussions, the CJI added, lessened the burden of the courts while interpreting or implementing the laws.
The comments by the Chief Justice of India raise a critical question: should there be elaborate discussions and debates on laws that ultimately find their way on India’s statute books?
Undoubtedly. There is no question about that. Lawmaking is, after all, the main job of the Parliament of India.
However, what the CJI fails to note is that the Opposition, the current one in particular, has violated the dignity of Parliament on several occasions. From creating a ruckus to entering the well of the House to spouting baseless slogans and walkouts. All of this, which prevents any meaningful discussion on any matter before the Parliament, escaped the CJI’s attention.
When the farm laws enacted by the Parliament of India resulted in protests and controversy, the Modi government invited every stakeholder possible to go over the three farm laws section by section to understand which clause(s) posed a problem. Neither the protesting farmers nor the Opposition were in any mood to do so. The CJI perhaps forgot about this.
The question, then, arises – should critical reforms to propel India into fast-paced growth wait in the hope that Opposition parties will show basic parliamentary courtesy? Should legislation impacting critical rights and livelihoods of the poor and the downtrodden be kept pending because the Opposition cannot digest the fact that one of them isn’t occupying the chair of the Prime Minister?
I’d argue the answer is clear.
Undoubtedly, there is merit in publishing a detailed note about the contours of the law which not only heightens the awareness about the law but also quells likely myths and misrepresentations which may arise, in particular, with regard to controversial laws. This author has in the past suggested to the Government of India to have a detailed FAQ-style note on the likely questions and doubts which may arise in regard to laws that are likely to have a wide impact.
The absence of it, however, cannot and must not prevent a competent judiciary from interpreting laws as they are on the statute books. There are often elaborate parliamentary committee deliberations as well as reports recording these discussions. Most laws contain statements of objects and reasons.
Moreover, laws, by their very nature, cannot possibly provide for each and every situation. A sports analogy might be useful here.
Let’s assume that an organisation has either invented a new sport or introduced a variation to an existing sport. For the sport to be played professionally, the organisation drafts rules based on an understanding as to what the basics of the sport are, what would constitute victory and what conduct is prohibited.
However, just as it is in the case of laws, such rules cannot possibly imagine each and every situation and provide for it. That is why rules evolve or change from time to time.
In cricket, for example, underarm bowling was prohibited in 2000 after it was infamously used prior thereto. Rules had to be changed to counter bodyline bowling, a tool deployed to target the stupendously successful Don Bradman. And, yet, situations continue to emerge time and again which haven’t been fully envisaged in a law for which there are competent referees and umpires.
In the field of law, that is the job of a competent judiciary. More importantly, it is the job of a fully-benched judiciary that doesn’t suffer from lingering vacancies. When Justice Rohinton Nariman recently retired, as many as ten spots in the topmost court of our country remain vacant. High courts across the country have over a hundred vacancies!
Hopefully, as the seniormost member of the collegium which has the sole power to appoint judges, the CJI will focus on bridging that vacancy gap. That could, in turn, lessen alarming case pendency and inconvenience which our courts have witnessed while they continue to focus on matters outside their domain (COVID-19 lockdown and medical management) or those which do not entail an actual legal dispute at hand (umpteen bizarre examples).
Amid his misdiagnosis and blame-shifting, the CJI also called upon more intellectuals and lawyers to be a part of the two houses of Parliament. India does, in fact, have several of them in the Parliament. Unfortunately, an increase in partisan politics overshadows their ability to contribute in impactful ways.
What the Parliament needs is non-partisan appointees who can engage in a critical liaison role between the country’s legislature and judiciary. That is exactly why, in March last year, former CJI Ranjan Gogoi was nominated to the Rajya Sabha under Article 80 of the Constitution of India (as one of twelve members possessing special knowledge in literature, science, arts and social service). As this author argued in The Indian Express, CJI Gogoi was perfectly placed to be a non-partisan conduit between the legislature and judiciary.
Yet, there was an uproar among those opposed to the present government. He was being rewarded for his pro-Modi verdicts, it was baselessly alleged. A smear campaign followed, hoping that he would be dissuaded from taking up that role.
That, too, sadly escaped the present CJI.
The author is an immigration lawyer who writes on current affairs, law and politics. Views expressed are personal