Three ideas mooted by the Centre recently have ignited debates. The first one seeks to replace three old laws: the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Evidence Act. The second is a proposal for simultaneous elections to the Lok Sabha and state legislatures. The third is a possible change in the nation’s formal name from India or Bharat to Bharat only.
The three ideas have some characteristics in common. They come from the top. They are unilateral; they are not the product of any dialogue between the government and the governed. Yet, all three have a populist tenor. The Centre appears to think that such measures can woo voters in the upcoming elections, or at least distract them from other significant issues facing the nation such as price rise, unemployment, corporate appeasement, and violence in Manipur.
Constitutionally, all three ideas tend to subvert Indian federalism. In S R Bommai vs Union of India (1994), the Supreme Court said that federalism, like secularism, is one of the basic features of the Constitution. An advanced form of democracy honours the rights and aspirations of the states that constitute the Union. It means decentralisation, inclusiveness and tolerance.
Take the proposal to amend the three codes. The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Bill have been mooted to replace the IPC, CrPC and Evidence Act, respectively. Thousands of other laws, both pre-constitutional and post-constitutional, bear English titles. There has been no proposal to alter these so far. The present regime has actually been promulgating laws with English titles.
Article 348 of the Constitution states that “all Acts passed by parliament or the legislature of a state” shall be in the English language. The title of the law is an inseparable part of it and so should be in English. This will also ensure there is no prejudice against non-Hindi speaking states.
There are other difficulties, too. According to the Seventh Schedule of the Constitution, public order and police come under the state list, which means the legislative prerogative in these areas lies with the states. Criminal law and criminal procedure come under the concurrent list, where the states as well as the Union government have legislative authority. If statutes are enacted in Hindi or Sanskrit, it would create confusion in non-Hindi speaking states. State amendments might face a linguistic dilemma. This logic applies to all legislations and not just the three newly-mooted Sanhitas. This is precisely the rationale of Article 348. The present move negates this logic. Ironically, the content of the new laws, which unsettles the notions we had about the older laws, will remain in English.
Let us come to the second idea. The proposal for simultaneous elections is not merely one for limiting the number of elections. It will reduce voters’ freedom of expression and every vote is an expression, as explained by the Supreme Court in PUCL vs Union of India (2003) and Anoop Baranwal vs Union of India (2023).
For the proposal to materialise, at least some provisions in the Constitution such as Articles 83 and 85 that deal with the tenure of parliament, and Articles 172 and 174 that deal with the tenure of state legislatures will have to be altered. Article 356—the provision for President’s rule when there is a constitutional breakdown in a state—may also have to be drastically changed.
The significance of the Rajya Sabha is yet to be understood adequately in the Indian political context. Even when the Lok Sabha is prone to the vice of majoritarianism, a different structure in the council of states can check such impulses of the party in power at the Centre. Therefore, even if passing some laws is easy in the Lok Sabha, it may not be so in the Rajya Sabha if there are other parties in power in a number of states. The Rajya Sabha and Lok Sabha are structurally and characteristically different. Therefore, elections to the state legislatures, which have a bearing on the composition of the Rajya Sabha, need not be concurrent with the Lok Sabha election.
The idea of ‘One nation, one election’ cuts at the very root of the dialectical relation between states and the Centre. The proponents of this idea cite that simultaneous elections were possible in 1951-52, 1957, 1962 and 1967. This was because the dissolution of the state assemblies was rare in the early decades of our democracy. More and more state governments were dismantled subsequently for different reasons, warranting separate state elections. Anticipating this, the Constitution did not prescribe simultaneous polls.
It is this scheme of the Constitution which the populist regime wants to disrupt. It is a call for a different Constitution rather than an amendment of the present one. It is a call for a centrist dispensation which is moving closer to the presidential system.
Studies show that simultaneous elections are not politically feasible or economically desirable. Contrary to claims, this model would not reduce electoral expenses. It is ironic that political parties do not feel uncomfortable about being funded by companies whose identity is not even publicly revealed. Instead of reducing the parties’ election expenditure, the regime tries to minimise the number of elections.
The third idea is the India-Bharat conundrum. The first line of the Constitution’s Article 1, which states, “India, that is Bharat, shall be a Union of States”, is meant to resolve it. The move would exclude and divide, as many states do not agree with this idea. It is widely believed that the immediate provocation for this idea was the Opposition naming its alliance INDIA, an acronym crafted to be identical with the nation’s name.
An essential feature of this central government is the superficiality of some of its policies and politics. It believed that withdrawing some currency denominations would eradicate black money. It wants us to believe that by changing the names of laws or of the country, and by overhauling the electoral arrangement, the system would improve. This is distractive populism—at its best and worst.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com)
(Tweets @KaleeswaramR)