The Vidhi-GOI Paradox

The Centre for Judicial Accountability and Reforms (CJAR) has been organizing various events recently, mainly centered around criticisms on laws, the government, the Supreme Court’s judgments which didn’t appeal to its members, among other things. One of them was organized this week in collaboration with controversial news website “The Wire” and it hosted senior lawyers as well as former Supreme Court judges.

Various statements made by the speakers at the events have caught a lot of attention. For example, the statement by former SC Judge, Justice Kurian Joseph on the need to remove a Shloka which is the motto of the Supreme Court since its inception because it affects the approach of the highest court has gathered a lot of criticism, mainly because of his recent views on the Catholic Church being all-encompassing, which according to him, is much like the Preamble of the Constitution of India. He pointed out that the media in the country is in shambles as there has been an attack on whistleblowers and that India is in a hopeless state currently.

Interestingly, one of the Executive members of the CJAR, Alok Prasanna Kumar, is the Co-Founder of a policy think-tank, the Vidhi Centre for legal policy which works with various ministries of the Government of India, such as the Ministry of Finance, the Ministry of Electronics and Information Technology, among others. The organization describes itself as a “think tank which assists the government in making better laws” & “works with Ministries of the Government of India and State Governments”.

Recently, Prasanna wrote a column against the imposition of the Uniform Civil Code in Uttarakhand, terming its imposition “colonial” and an attempt to erase Muslim and Christian personal laws. In the column, he writes “The Uttarakhand Uniform Civil Code effectively imposes the Hindu Marriage Act 1955 and the Hindu Succession Act 1956 on the state’s Muslim and Christian communities, erasing their respective religious personal laws. Such an attempt to enforce majoritarian laws on the personal customs of minorities is not new. In fact, it was this very issue that prompted Kasturba Gandhi to join and lead her first Satyagraha in South Africa in 1913”. He concludes the piece by declaring the law introduced by Uttarakhand as “supremacist” and “demeaning to the customs and practices of the minorities”. By juxtaposing Kasturba Gandhi’s Satyagraha against derecognition of her marriage due to a judgment of the South African Supreme Court which recognized the validity of a marriage, only based on Christian faith, Prasanna has tried to justify his analysis by terming the State’s UCC introduction, bad in law.

For the sake of brevity, it may be appropriate to state that the corollary drawn above between the two events – the introduction of the UCC in Uttarakhand and the agitation of Kasturba Gandhi in South Africa against imposition of Christian marriage principles, is entirely misplaced. The salient features of the law neither disregards or invalidates marriages conducted by religious ceremonies or customs of any faith, nor does it impose Hindu Shastric law on any person or community. In fact, its imposition will pave the way for recognition of every marriage by making registrations compulsory, gender equality by prohibiting polygamy, bigamy, triple talaq etc. Thus, the corollary which has been drawn out gives the impression that the law is trying to impose Hindu law on minority communities, and it is the Hindu Codes which are being stonewalled on other communities, also hinting at the lack of ingenuity by the Government. Dare I say, the unfounded inference is a misnomer, and for unsuspecting folks it is milking a cow – inject Mahatma Gandhi’s Satyagraha into any discourse for impact, just to meet ulterior ends.

The idea that laws which are being implemented or drafted by the Government has majoritarian implications was also pointed out by Vrinda Grover, Advocate, at another CJAR event organized with Common Cause last week. She pointed out that the new Acts: Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), which will replace the Indian Penal Code (IPC), 1860; Code of Criminal Procedure (CrPC), 1973 and Indian Evidence Act, 1872 respectively are being used by the “regime” to control, suppress and contain the Indian citizenry – how it will conduct itself in private and public life. “Law making is not the preserve of those who are in majority. It affects all of us,” she pointed out. Thus, effectively, while Prasanna chose to write a column independently on a credible news website such as a The Print to showcase the majoritarian narrative of the government in policy making vis-à-vis the Uttarakhand UCC, the projections at the event organized by CJAR about the majoritarian nature of criminal laws bolstered by the Government is telling. Again, Former director of National Law School of India University, Mohan Gopal pointed out at the same event, that the claims of the Government of India of overhauling these laws under the garb of decolonisation, are in fact an attempt to establish “Hindu Rashtra”. He further pointed out that any brutality that would be committed from July 1 onwards would be “Bharatiya brutality” and pointed to provisions the provisions which have been added to the offence of Sedition.

Another trend which is worth introspecting is how the event highlights the Criminal law overhaul legislations which will be enforced from July 1st, 2024 as being a façade – that the three new legislations have nothing to do with undoing coloniality but are being used to suppress dissent against the ruling Government. Justice Madan B. Lokur, a former Supreme Court judge (also a regular at these events) stated that he is extremely skeptical about the bail provisions in the three news Acts. “Provision on bail has been diluted by the recent Supreme Court judgment. I do not know what these new Bills would do.” Further, Lokur goes on to state that victims are not being protected by the new laws. This could be taken as a fair point, if victims are mentioned across the country, but he specifically points to Hathras – an incident which occurred in BJP-ruled Uttar Pradesh, 4 years ago, with three out of four of the “upper caste” rape accused being acquitted last year.

Unsurprisingly, reeling back to a series of tweets by the Vidhi Centre for legal policy, co-founded by Prasanna, with the hashtag “ColonialHaiColonialHai” criticizes Bharatiya Nyaya Sanhita (BNS) which will replace the Indian Penal Code (IPC), 1860 too promotes the coloniality conundrum. This is worth exploring because it appears to be the perpetuation of a narrative under the garb of criticizing a Government policy or law on the face of it through a think tank. But what it really is, can be seen by the what the speakers have to say about the bills at the CJAR event – decorate the gamut of the narrative with activist lawyers, judges and then some more.

It is understood that the think tank led by Prasanna works collaboratively on many projects with the government and an assumption that pitching for work is hard work is not a patchy one to take – All the worlds a stage, you gain some, you lose some – etc. After all, the legal think tank formulated a Modern Code on Indian Family law – did the government take it into account?

Thus, could it be that the stand of the think thank and its founder’s associated entities is a way to create pressure for a successful pitch? Or is it spite, which stems out of a pitch not working? A pitch not being heard and, in this case, not being implemented. Could we call it purely business?

Persons from civil society have every right to criticize government policy, governmental decisions, and spearhead discourses around the issues that they consider appropriate. However, it is undoubtedly relevant to point out that the Government of India has chosen to look away from collaborations effectuated with its own ministries which may be detrimental to the larger public good. When research and policy think tanks or organizations work to accelerate narratives, in all eventuality, larger public interest will suffer. Thus, if the Government truly understands the needs of its people, the assistance it requires from outsourcing policy making work should be bereft of political or ideological bents of mind. Unless the government wakes up from deep slumber and analyses the paradox that may not be visible to the naked eye, effective legal change will be impossible.