Wednesday, August 17, 2011

Parliament and the People: Is the Janlokpal protest unconstitutional?

The Indian Constitution preambleImage via WikipediaThis is a guest post by SCT in which he shares a legal opinion on the sovereignty of parliamentary procedure for law-making in a free and functioning democracy.

There seems some confusion on two related issues, namely that the protest of Anna and team is unconstitutional and that Parliament is sovereign so when the bill is before Parliament all public action should cease.

Both the arguments are flawed. These arguments have validity only when an overwhelming number have full faith in these institutions. But these are not normal circumstances.

Firstly, the Parliament is neither Sovereign nor Supreme. The People are Sovereign as the opening lines of Preamble of the Constitution state clearly.

In modern times, large countries can not have Government by the People and that is why the Parliaments and Elected bodies legislate on behalf of the People and elect the Executive in a Democracy. But if they become dysfunctional, People have every right to protest peacefully so that the Parliamentarians can gauge the will of the People and one does not have to wait for the end of the tenure of the House.

It also implies that once elected, the Parliament or the legislators can not ignore the will of the People and become totally self-serving as is the common perception at this point on the issue of tackling corruption. We have seen how debates in Parliament on the issue of "No Confidence" can be won or lost by offer of bribe that was left shamefully unsolved by the Parliament forcing the Supreme Court to intervene.

On so many issues in the past, various groups have taken out processions and protest marches even while the bills are pending in Parliament. The most glaring example is the Women's Reservation Bill that has been with the Parliament for nearly a decade but whenever a discussion is planned, some interest groups threaten agitation and everyone in Government and the Parliament develops cold feet.

So, neither the Parliament is Sovereign nor a protest over any bill that is pending, unconstitutional. Even technically and constitutionally, the Sovereignty under Indian Constitution is not located in any single Institution at all time.

Now, on the second issue as to whether an agitation or fast is unconstitutional, I would only say that the question is absurd in a Democracy. Yes, conditions about the place can be imposed but not on numbers and days. If at any stage, there is commission of crime or violence or apprehension thereof (such as on later days of a fast unto death), the enforcement agencies deal with situations everyday and are expected to take legal action with which all are familiar.

The present situation is not a normal happening, it has to be taken as an abnormal situation because corruption has affected almost every person and he has felt helpless till he saw Anna's movement. A quick solution based on consensus and not on "smart" handling, is necessary.

The guest author, SCT, is Shri S.C. Tripathi I.A.S Retd. (1968) L.L.B. This is his second blog.


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