The distinction between what the Prime Minister says in his personal capacity, and the stand of the Union Government is not merely academic, as Article 300 of the Constitution fortifies it.
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THE Union Home Ministry has filed an affidavit at the Supreme Court in the ongoing sedition law (Section 124A of the Indian Penal Code) case on May 9, in which it made a curious reference to Prime Minister Narendra Modi's views on the matter.
The affidavit said: "The PM has been cognizant of various views expressed on the subject and has also periodically expressed his clear and unequivocal views in favour of protection of civil liberties, respect for human rights and giving meaning to the constitutionally cherished freedoms by the people of the country. He has repeatedly said that one of India's strengths is the diverse thought streams that beautifully flourish in our country."
It added: "The PM believes that at a time when our nation is marking 'Azadi ka Amrit Mahotsav' (75 years of Independence), we need to, as a nation, work harder to shed colonial baggage that has passed its utility, which includes outdated colonial laws and practices."
“The unwitting implication of the reference to Prime Minister Modi's views gives rise to the impression that he is the union government, and what he thinks and says is what the government stands for. It gives a personality-oriented twist to what the government stands for.
The two quotes about Prime Minister Modi's views in the affidavit, however laudable, seem out of place because the personal views of constitutional officeholders have little or no value in legal arguments and processes. When Parliament passes a legislation and the President gives the official assent to it, it is the Government of India that is seen as having given the stamp of authority to the law. And when it is challenged at a court of law, it is not the Parliament or the Union Cabinet that are challenged but the Government of India. The persons involved do not figure in the matter.
Article 300 of the Constitution is a testimony to this understanding of the law.
So, for the Home Ministry to quote Prime Minister Modi's views and sentiments is an odd thing. The unwitting implication of the reference to Prime Minister Modi's views gives rise to the impression that he is the union government, and what he thinks and says is what the government stands for. It gives a personality-oriented twist to what the government stands for. And it leads to the conclusion that Modi has intervened in the workings of the government in such a way, that his personal view shapes what the government believes.
In a strange, and even in an ominous way, Modi has personalized the working of the government. It is his views and his style that marks the government. In practice, the leader of the government indeed gives direction to policy and manner of functioning, but it is never made part of the written stand of the government, as it has been done in this affidavit.
It is a good thing that Prime Minister Modi is in favour of "protection of civil liberties" and "respect for human rights", but it does not matter what his private views and sentiments are. Civil liberties and human rights are part of the constitutional framework of this country, until they are constitutionally undone through required Parliamentary amendments (which would almost certainly not be possible because civil liberties and human rights are part of the Constitution's basic structure).
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In a constitutional democracy, it may be possible to undo liberties if Modi and his Bharatiya Janata Party were to fight an election on the issue and win a huge mandate. Of course, this is never done. Authoritarian political leaders are most likely to express their support for civil liberties and human rights even as they are dismantled in legal and illegal ways.
The important aspect now is the undue emphasis given to what Prime Minister Modi thinks and believes in an affidavit in a case before the Supreme Court. It may be harmless to quote his liberal views, but it is not conventionally right to do so. The government of the day is certainly Prime Minister Modi's government, but it cannot be projected as a Modi government in constitutional procedures like the one before the Supreme Court.
“The government of the day is certainly Prime Minister Modi's government, but it cannot be projected as a Modi government in constitutional procedures like the one before the Supreme Court.
The Home Ministry has also told the Supreme Court to keep off from the issue. It said: "The SC may not invest time in examining the validity of Section 124A again (its validity was upheld by a Constitution bench in the Kedar Nath Singh vs State of Bihar case in 1962) and be pleased to await the exercise of reconsideration to be undertaken by the Union government before a forum where such reconsideration is constitutionally permitted."
The language and the tone is perfectly legal, but the intent of the government is unmistakably authoritarian. The government is telling the Supreme Court that once an issue has been settled by the court – in this instance, it is the Kedar Nath Singh case – then it should not reconsider the issue again. The Supreme Court has every right, and it always does, to overturn or modify its earlier judgments, and it is part of the judicial review process.
Secondly, the government has indicated that the reconsideration of a law is the province of "a forum where such reconsideration is constitutionally permitted." The Home Ministry is making too many assumptions here. The first one is that once the court pronounces a verdict, it cannot reconsider it. Second, that "reconsideration" belongs to the unspecified forum. It should have been stated that Parliament will take up the issue and pass fresh legislation. But Parliament is not mentioned. The executive, that is the Union Cabinet, is certainly not the constitutional forum to reconsider laws. The authoritarian intent of the government is barely concealed in the affidavit.
“It should have been stated that Parliament will take up the issue and pass fresh legislation. But Parliament is not mentioned. The executive, that is the Union Cabinet, is certainly not the constitutional forum to reconsider laws. The authoritarian intent of the government is barely concealed in the affidavit.
As today's hearing before the Supreme Court makes it clear, it is not for the government to anticipate before the judiciary or any other forum what Parliament will debate, or whether at all it would reconsider the provision making sedition an offence, even if for the sake of argument, we concede that the reference to Parliament is implied in the Government's affidavit.