Society gets the law it deserves

It is an extraordinary time that we live in. When last fortnight’s column was being written, onions and indicia of economic slowdown occupied the consciousness of business and industry. This fortnight, an extraordinary and unexpected outpouring of protests is spilling on to the streets of campuses — all over the country, some would say, while others would say only in 22 of 400 universities.


If one were to consider a business equivalent of the citizenship amendment law, here is that it would be like.  Picture legislation that would identify some industries that have gone through hardship — say telecom, power and steel. Imagine saying fuel costs went haywire rendering the power sector unviable; interpretation of revenue sharing went haywire rendering telecom unviable; and cyclical pressures have rendered steel unviable. The citizenship amendment law picks only three countries — Pakistan, Bangladesh and Afghanistan.


Also imagine saying industrialists have for decades worked hard under severe expropriatory tax rates — indeed,  the effective tax rates in the Indira Gandhi regime has been worked out to be over 90 per cent.  But imagine the law being silent about persecution and hardship faced due to such a horrendous fiscal regime, and yet being defended on the basis of such persecution. The citizenship amendment indeed does not have a whisper about religious persecution being the relevant factor in declaring illegal immigration as legal.


Now, imagine an amendment to the law that provides for anyone engaged only in these three industries, having either stacked up wealth hitherto unaccounted for, or having serious dues owed to the state, being excused from their legal obligations. The citizenship amendment law refers only to three countries from which illegal immigrants would no longer be regarded as illegal. 


Also imagine offenders not even born during the era of those horrible tax rates too getting included in the exemption from legal obligations. The citizenship amendment law draws the line at 2014 while it is being defended on the basis of persecution during partition in the 1940s. Indeed one can argue that those who suffered by paying taxes of 90 per cent-plus rates could not provide well for their offspring and the effect of the persecution cannot be limited to the 1970s.


And then imagine arguing that the law is indeed constitutional and therefore good law. Indeed, multiple voluntary disclosure of income schemes, amnesty schemes for black money, and other benign means of coming clean with a dip in the Ganges have indeed been held to be constitutional. Of course, in the mid-1990s, the then United Front government promised the Supreme Court that there would be no more such cleansing of unaccounted wealth. But equally, it is a principle of law that there can be no “estoppel” in matters of fiscal legislation. In layman terms, the sovereign power to make laws cannot be curtailed by promises not to make a certain laws — the only challenge can be on constitutional validity and on no other ground.  


What is constitutionally valid is a question to be answered by the judiciary —  with a reasonable mind’s reasoning. This can lead to multiple outcomes depending on whose mind is being applied. In the United States, President Donald Trump’s executive order banning travellers from specific Muslim countries was held by some judges to be unconstitutional and others to be valid. The former took into account the Trump’s election campaign speeches making an unconstitutional promise of a ban on entry from Muslim countries. The US Presidents’ law officers defended the law arguing that judges must not look to his speeches at all, and should stick to the language of the law. The US Supreme Court agreed with that line of argument — although it must be said that Trump added some ornamental non-Muslim countries in a revised ban order, to win the constitutional battle. In India, the citizenship amendment law is silent on “religious persecution”. 


What is “good law” (constitutionally valid) and what is fair and reasonable law (from the perspective of universal acceptability) can be two completely different things. Again, in the United States, a constitution guaranteeing equality of all human beings was held to be consistent with a robust legal framework to enforce slavery — the ownership of, and trade in, human beings.


In India, those in business and industry have a strong tendency to seek refuge in nationalism. A comparison of how the citizenship amendment would play out if it were to be embraced in the field of business, would be instructive. When multiple buttons get pushed all at once -- religious differentiation versus linguistic differentiation; asylum law versus citizenship law; era of partition versus era of politics after seven decades — the churn of the manthan should hopefully lead to serious thought. Ultimately, the law that gets upheld in a society is typically the law that resonates with it. Unpopular social reform is easier to implement when it is forced by a patronising external colonial power — for example, the ban on sati. In a democracy we get the laws we truly deserve.


The author is an advocate and independent counsel. Tweets @SomasekharS


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