Constituent policy

Political provisions must not lead to a denial of justice

In the late 1940s, United States Supreme Court Justice Felix Frankfurter advised Benegal Narsing Rau, a major contributor to the drafting of India’s Constitution, that India would be better served without a “due process”. The Constituent Assembly accepted his advice and India replaced process with a phrase from the Japanese Constitution: “procedure established by law”. We argue that this substitution has driven a wedge between Niti (politics) and Nyaya (justice) via a lazy administrative state that has not fully applied its spirit to legislation. A direct consequence of this laziness can be seen in the 26,134 penal provisions for employers in the 1,536 laws that apply to employers in India.

A unique article titled Jailed for Doing Business by Gautam Chikermane of Observer Research Foundation and Rishi Agrawal of Teamlease Regtech documents the jailing provisions faced by Indian entrepreneurs in 1,536 laws in seven categories: labor, secretarial, environment, health and safety , finance and taxation, industry-specific, commercial and general. We have 843 particularly substantial laws; together they have 26,134 penal provisions; 55% prescribe more than one year in prison, 33% have five provisions of imprisonment and a law has 700 ways a businessman can end up in prison!

History matters. Mahatma Gandhi had pleaded guilty to sedition charges in 1922 while insisting that the existence of a procedurally legitimate law is not enough; he must have the moral authority to govern. Prior to 2017, our Supreme Court had only two qualifications for laws to pass the test of constitutionality: whether Parliament has legislative jurisdiction to enact a law on the subject and whether the law violates fundamental rights or any other provision of Constitution. But while the court struck down executive actions for arbitrariness before 2017, the Supreme Court added a third qualification that year to test the constitutionality of a law: whether legislation passed by Parliament does not is not manifestly arbitrary.

As mentioned, the absence of a due process clause in our Constitution has been largely influenced by the American experience. Beginning in 1897, the United States Supreme Court interpreted the Fourteenth Amendment’s “due process clause” broadly to strike down legislation that allegedly interfered with property rights and freedom of contract, and used it to invalidate several New Deal laws, much to the President’s frustration. The Roosevelt Government at the Time In 1946, when we were writing our Constitution, the United States Supreme Court had largely abandoned its reliance on substantive due process to defeat progressive legislation.

Article 21 of the Indian Constitution states that “No one shall be deprived of his life or personal liberty except in accordance with procedure established by law”. Our Supreme Court was asked to interpret this phrase shortly after the Constitution came into effect in a habeas corpus petition. filed by AK Gopalan, detained under the Preventive Detention Act (No. 4 of 1950).

Gopalan challenged his detention directly to the Supreme Court, citing the court’s jurisdiction under Article 32 in human rights cases. Gopalan maintained that he had a fundamental right under Article 21 not to be deprived of his personal liberty except “in accordance with the procedure established by law”. The Pretrial Detention Act undermines this right because it does not provide adequate procedures, including natural justice, to legally deprive Gopalan of his liberty. A majority of the Supreme Court rejected Gopalan’s arguments. The court held that only the legislature can decide the adequacy of procedures that deprive a person of their liberty and that the courts would not rule on the fairness or reasonableness of the procedure. They should trust the wisdom of the legislator.

The Supreme Court, however, overturned Gopalan’s verdict in 1978; it held that although the Constitution speaks of a procedure established by law, the procedure could not be unfair, fanciful or arbitrary. We believe that 26,134 imprisonment provisions for employers are unjust, arbitrary and excessive.

Our people ensure that India will soon be third in the world’s gross domestic product (GDP) rankings, but low productivity means we are 138th in GDP per capita. Increasing GDP per capita requires increasing the productivity of our states, our businesses and our individuals; it requires changing the way our land, labor and abundant capital combine to create well-paying jobs, livelihoods and businesses. Substantial progress has been made in increasing India’s fourth factor of production, entrepreneurship, in recent years. However, regulatory cholesterol ensures that most of our employers are still midgets, not infants.

Chikermane and Agrawal’s paper makes 10 major and 31 minor reform recommendations, but lasting change would require reigniting the confrontational mindset between the Indian state and the country’s entrepreneurs. These excessive imprisonment provisions represent what economist Shamika Ravi imaginatively describes as a tyranny without a tyrant.

A folktale in the book Raya: Krishnadevaraya of Vijayanagara by Srinivas Reddy has Minister Timmarasu taking the young prince of that name aside before his magnificent coronation ceremony. Instead of giving secret advice, Timmarasu slaps Krishnadevaraya in the face and advises him to remember the pain of punishment and the importance of wise punishment once he becomes king. Krishnadevaraya also seems inspired by Badenna, a 13th-century Telugu political theorist, who believed that “justice is the way to prosper the people and the prosperity of the people is the way to wealth”.

India’s 26,134 jail provisions for employer compliance violations are rarely used to put people in jail, but the cost of this Niti is a poor economic Nyaya, as most visible in corruption, low wages and low business productivity. Many of them have to leave.

Manish Sabharwal & Ashok Reddy are co-founders of Teamlease Services

To subscribe to Mint Bulletins

* Enter a valid email address

* Thank you for subscribing to our newsletter.

Never miss a story! Stay connected and informed with Mint. Download our app now!!