The spectrum of law-making in independent India

Kabeer Shrivastava

The spectrum of law-making in independent India
Coalition governments have shown greater allegiance to the constitutional promise than super-majority governments In India, Parliament is the supreme law-making body. With the exceptions of items reserved unto the people — by the virtue of Funda...
Coalition governments have shown greater allegiance to the constitutional promise than super-majority governments

In India, Parliament is the supreme law-making body. With the exceptions of items reserved unto the people — by the virtue of Fundamental Rights — and items reserved unto the States by the virtue of the Seventh Schedule of the Constitution, Parliament can make laws on virtually any subject within India’s territory, and, in exceptional cases, extra-territorially.

The Preamble lists the objectives of the Constitution to secure for all citizens justice, liberty, equality, and fraternity. Undeterred by India’s deep-seated inequalities and factionalism before and at the time of Independence, the framers of the Constitution undertook a leap of faith and envisioned a liberal, more egalitarian nation-state in the post-colonial world.

Building blocks of the Nehruvian years

The first government led by Jawaharlal Nehru inherited a copious body of constitutional, substantive, and procedural laws made between the early 1800s to 1947, and a trained bureaucracy to administer them. In his first term (1947-1952), Nehru met once-in-a-lifetime challenges of a newly-born country: the rehabilitation of Partition survivors and the administration of evacuee properties; assimilating princely states and the grant of privy purses; creating the statutory framework for the defence forces, the Reserve Bank of India as well as the Election Commission of India, and, finally, the initiation of land reforms.

After winning a handsome majority in independent India’s first general election in 1952, Nehru presented more institutional pieces of legislation: inducting new States and reorganising them on linguistic grounds (1956-1962); reforming Hindu personal laws (1955, 1961); enacting an entire body of revenue and company codes (1956-1962); administration of food and public distribution (1962); enacting labour protection laws (1948-1952); creating institutes of public importance such as the University Grants Commission, the Life Insurance Corporation of India, the Bhabha Atomic Research Centre, the All India Institute of Medical Sciences and the Indian Institutes of Technology (1956, 1961); and, finally, extending English as the official language (1963).

Nehru’s notable legislative failing was the staggering number of times that the Constitution was amended within his lifetime (16); creating the exceptions to free speech and enacting the Armed Forces (Special Powers) Act, 1958, the two pieces of legislation that continue to be deeply contentious in its usage until this day.

Lal Bahadur Shastri’s brief tenure, of 18 months, confronted acute national food insecurity. In response, he set in motion the institutional blocks of the Green and White Revolutions, enacted the Food Corporations Act and set up the National Dairy Development Board.

Indira Gandhi’s long shadow

Indira Gandhi continued Shastri’s policies towards a food-secure India and legislated the Seeds Act 1966, the Insecticides Act 1968, and also created two agricultural universities in 1970. She deserves credit for substantial reform to criminal procedure (1973), landmark rights-based pieces of legislation such as decriminalising abortion (1971; two years before the U.S. Supreme Court legalised it), enhanced labour rights (1970, 1976) and wildlife and environment protection laws (1972-1981).

All the while, Mrs. Gandhi could not tame her authoritarian instincts and enacted the Unlawful Activities (Prevention) Act 1967 (or UAPA), the Maintenance of Internal Security Act 1971, and its economic adjunct, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, all of which were grossly misused at the time; to this day, the UAPA continues to be weaponised. The most damning moment was the proclamation of Emergency and the passage of the 42nd Constitutional Amendment, suspending civil rights and elections.

Mrs. Gandhi’s neo-socialist economic policies saw the nationalisation of mines, banks, and insurance companies (1969-1976), the abolition of privy purses of erstwhile rulers (1971), ceiling urban land holdings (1976) and restricting corporations from paying dividends (1974). Strictly speaking, most of these pieces of economic legislation did not grossly offend the Constitution, and the Supreme Court held them as such.

The foremost legislative task before the Morarji Desai government was to roll back the excesses committed under the Emergency with the enactment of the 44th Constitutional Amendment and restore civil liberties and judicial independence. It continued, in large measure, the predecessor’s confiscatory economic policies, notably nationalising more industries and also the first exercise of demonetisation of currency notes in 1978. Indira Gandhi returned for a second stint in 1980 and in what can be described as a volte face of her economic philosophy, entered into the Indo-Mauritian Tax Treaty which became the largest source of foreign direct investment (FDI) to India for decades to come (about $140 billion between 2000-2020 alone). Extension of the Armed Forces (Special Powers) Act (AFSPA) to quell the rising insurgency in Punjab was Mrs. Gandhi’s last major parliamentary legislation; the conflict cost her her life in 1984.

A super majority

Rajiv Gandhi’s term in Parliament saw five critically contested issues. The legislative apathy toward the 1984 Sikh pogrom; the hastily drafted Bhopal Gas Tragedy (Processing of Claims) Act 1985; the undoing of the Supreme Court’s judgment in Shah Bano giving maintenance rights to divorced Muslim women; insertion of anti-defection laws as the 10th Schedule to the Constitution (making elected representatives essentially subservient to party bosses), and, finally, sending the Indian Army to Sri Lanka, a conflict which led to Rajiv Gandhi’s assassination.

His legislative legacy was saved with comprehensive codification of environment protection, juvenile justice, mental health, and consumer protection laws (1986-1987); the creation of a legal services authority to deliver the constitutional promise of free legal aid (1987); and easing of onerous labour laws (1988). Even while mired under allegations of corruption, Rajiv Gandhi, to his credit, enacted a comprehensive anti-corruption and benami prohibition law (both in 1988), which are in force until today.

V. P. Singh’s singular policy legacy was the implementation of the Mandal Commission recommendations, and reserving additional seats in public employment for Other Backward Classes.

P.V. Narasimha Rao inherited a nation facing severe headwinds — from a balance of payment crisis to dangerous arousal of communal passions. Heading a minority government, his legislative response was reasonably sober: the Places of Worship (Special Provisions) Act, 1991 for maintenance of the religious character of places of worship; creation of the Securities and Exchanges Board of India (1992), introduction of a service tax regime (1994), and consolidating public sector enterprises. His social welfare laws were also laudable: the creation of a National Human Rights Commission (1993); prohibition of manual scavenging (1993); prohibition of pre-natal gender selection (1994), and protecting the rights of disabled persons (1995). Fulfilling Mahatma Gandhi’s vision of local self-government, Narasimha Rao amended the Constitution to give legislative basis to Panchayati Raj and Urban Local Bodies.

Despite accolades, his greatest constitutional failure was lethargy in bringing the chieftains of the Babri Masjid’s demolition, and the ensuing riots, to justice.

Atal Bihari Vajpayee’s interventions were mainly economic in nature. Continuing with his predecessor’s economic policies, he liberalised foreign exchange laws and created a new insurance regulator (both in 1999); revamped the intellectual property regime (1999, 2000); enacted a substantive information technology regime (1999), enabled a substantive anti-money law (2002) and created a fiscal responsibility and budget management protocol (2003). Two of his striking constitutional amendments were the insertion of Article 21A, guaranteeing free and compulsory education to children between the ages of six to 14; and implementing the recommendations of the Tenth Finance Commission (of pooling and sharing all taxes between the Union and States).

Like P.V. Narasimha Rao, A.B. Vajpayee’s apathy towards riot victims (Godhra, 2002) remains his most glaring constitutional blot.

A rights-based approach

Manmohan Singh’s legislations reflect a rights-based approach to secure the egalitarian demands of democracy. Notable were the right to information; the right to employment (the Mahatma Gandhi National Rural Employment Guarantee Act); granting married Hindu women equal right in intestate succession of her parents; protection of women from domestic violence and senior citizens welfare (2005, 2007); operationalising free and compulsory education to children (2009); the setting up of the Unique Identification Authority of India (Aadhar) in 2009 and the National Green Tribunal (2010); and, finally, a comprehensive law protecting children from sexual offences (2012).

In response to the Mumbai terror attacks in 2008, Manmohan Singh created the National Investigation Agency that effectively cut into the powers of States to manage law and order. Earlier that year, global financial crises impacted India, followed by a global outcry against tax havens. The legislative response came between 2009-2012, with the execution of multiple tax information exchange treaties, and requiring residents (even if not permanently resident) to disclose their global assets in Indian tax returns.

In the penultimate year of his government’s tenure — contrary to the charge of a “policy paralysis” — Manmohan Singh comprehensively reformed corporation laws, enacted a rights-based approach to food security and land acquisition; strengthened criminal laws to protect women from sexual crimes, and before leaving office, enacted the Lokpal and Lokayukta Act.

On Modinomics

Like A. B. Vajpayee, Narendra Modi’s legislative philosophy in the first term had an overwhelming financial orientation. Key among them was enacting the Black Money Act and the Commercial Courts Act (both in 2015); enacting a monetary policy committee to manage consumer inflation, demonetisation of currency notes and a new bankruptcy regime (all in 2016); an electoral bonds scheme; delivery of welfare schemes through Aadhar; adding teeth to benami prohibition law; enactment of a comprehensive Goods and Services Tax regime (all in 2017), and, finally, a fugitive economic offence act (2018). The exception to this theme was the 103rd Constitutional Amendment — reservation of 10% seats for Economically Weaker Sections in direct Union employment and education.

In Mr. Modi’s second term, there was a seriously authoritarian bent of mind. There was the dilution of Article 370 withdrawing the special constitutional status of Jammu and Kashmir, followed swiftly by the Citizenship (Amendment) Act with the aim of excluding Muslims refugees from rights to fast-track citizenship. There was a crescendo with the agricultural “reforms” law, which was repealed after much protest and loss of life.

Contrary to the rhetoric that a majority government is more beneficial to secure our constitutional guarantees, India’s legislative history (except for the Nehruvian era) indicates that coalition governments — on either side of the aisle — show greater allegiance to that cause. Of course, this is because coalitions make consultation mandatory. And in a nation of such immense diversity like ours, that’s a beautiful thing.

Kabeer Shrivastava is a Delhi-based advocate. He can be reached at

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