Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Samar Veer, a third-year law student at National Law University, Delhi and JURIST’s Dispatches Managing Editor.
One of the most turbulent and high-stakes Winter Sessions of the Indian Parliament in recent memory came to an end on December 22. The session saw, among other things, the passage of 18 bills, the hotly debated suspension of 146 Opposition Members of Parliament (MPs) in a move hitherto unheard of, the controversial expulsion of another Opposition MP and a serious breach of the Parliament complex’s security on the 22nd anniversary of a fateful terror attack on India’s Parliament back in 2001.
The suspension of 146 lawmakers has its roots in the aforementioned security lapse. The breach saw five individuals raise slogans and use gas canisters at various places within the complex, two of whom burst into the lower house (Lok Sabha) of the Indian Parliament while it was in session, before being wrestled down by security personnel and other lawmakers. All four accused and a fifth co-conspirator have been detained by the Delhi Police. The incident led to widespread questions of laxity in security, especially on the anniversary of a deadly terror attack on Parliament which had left nine dead 22 years ago.
The incident led to a standoff between the Opposition and the Government. The Opposition adamantly demanded that a statement be given on the breach by Union Home Minister Amit Shah. A motion was passed by voice vote for suspending MPs who were ‘disrupting’ the proceedings by holding placards and shouting slogans upon the refusal of the Speaker to meet the aforesaid demands of the Opposition. This led to a shocking 146 MPs being suspended and being barred from attending the remainder of the session. The suspended MPs largely included stalwarts of the I.N.D.I.A (Indian National Developmental Inclusive Alliance) bloc of opposition parties, which is the principal contender against the N.D.A (National Democratic Alliance), led by the ruling Bharatiya Janata Party (BJP). The suspended MPs later went on to hold protests against their suspensions in New Delhi.
The session did not, however, proceed without further controversy. Various laws, many with sweeping and draconian provisions, were passed in Parliament with minimal debate due to the absence of a large chunk of the Opposition. Arguably the most notable Acts were the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Act. These bills have been enacted for the purpose of replacing the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, respectively. These new pieces of legislation will replace the older Acts as the cornerstones of Indian criminal law. Many provisions in these new legislations have faced flak for being regressive (such as Section 69 of the Bharatiya Nyaya Sanhita, for criminalising a false promise to marry a woman, which entails extremely dire consequences for what may largely be a form of civil cheating or fraud.) Some provisions, such as Section 150 of the same law, are also under criticism for largely being a rebranding of the much-derided provision of “sedition” under Section 124A the Indian Penal Code.
Further, the new Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 is also facing flak over its re-constitution of the Committee which sits to select the appointees to the office of the Election Commissioner(s) and the Chief Election Commissioner. It was a four-member Committee comprising the Prime Minister, the Cabinet Minister, the Leader of Opposition and the Chief Justice of India (CJI), but now the CJI has been dropped from the panel, making any appointments in the future almost certainly as per the complete preference of the executive with little room for opposition, since the executive will have the final say in appointments due to their majority in the panel.
Of further concern is the new Telecommunications Act, 2o23, replacing the Telegraph Act, 1885. It lacks any ostensible procedural safeguards against intercepting private communications, searches and surveillance. Also, it permits the executive to take over telecommunications at its behest in the interest of “national security”, potentially violating the fundamental Right to Privacy under Article 21 of the Constitution. Such sweeping provisions in the interest of “national security”, which is not defined under the Bill and thus provides the executive with maximum discretion to decide what situations constitute threats to national security. This opens the gateway to unimpeded mass surveillance, interception of private communication and erosion of citizens’ privacy rights.
Finally, a notable law is also the Post Office Act, 2023. In a nutshell, Section 9 under the Act permits the government to intercept any packages in the interest of national security, friendly relations with foreign states and some other restrictions. Similar to the telecom bill, it casts a menacing shadow over the right to privacy and privileged communications.
Finally, this session also saw the expulsion of Mahua Moitra, an Opposition MP by the Parliament Ethics Panel. Many have criticised the expulsion by saying that the Committee overstepped its mandate and the accused was not allowed to properly examine the charges against her before expulsion, in violation of the principles of natural justice.
Marred by these bills and the suspensions, the Winter Session this year was eventful, to say the least. It seems unclear whether the breach of security by the individuals arrested on the anniversary of a ghastly terror attack in the heart of New Delhi was intended to send some sort of “message” or if it was a mere coincidence. Such shocking lapses in the security of what is perhaps the most important building in the country is concerning. But perhaps of much greater concern is the simultaneous institutional change being carried out in the chambers of that building, nibbling away at constitutional rights one at a time to the seeming indifference of the electorate. But whether these institutional changes happening without virtually any debate in Parliament are of considerable consequence in this new year, is unclear. 2024 is finally upon us, and so is the general election to Lok Sabha.
India has witnessed monumental changes to its electoral democracy and institutions in the last decade, largely with thumping support from a majority of voters. Whether this Winter Session and the constant weaponisation of parliamentary procedure impacts the N.D.A’s electoral prospects for this year, is a question only the electorate can, and will answer soon.
Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.