Look who’s back!

Narendra Modi is back, that too with a bigger mandate than before. And, with a rudderless, decimated Opposition on the other side of the aisle. While the media speculates on who will be in the Cabinet—will Amit Shah join it, will Arun Jaitley be replaced with Piyush Goyal and whether Smriti Irani will be rewarded for winning Amethi—I thought it would be good to move past that and talk about what laws the new Modi Government might bring in at the get-go.

When the 16th Lok Sabha term ended, there were some vital legislations which were in Parliament, waiting to be approved. 46 of them have lapsed and might come back with a vengeance. Here are a few of them.

The Citizenship (Amendment) Bill

This was easily one of the most talked about laws during the 2019 election campaign. The Bill aims to amend the Citizenship Act, 1955, to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. This Bill was introduced in July 2016 and was passed by Lok Sabha a full two-and-a-half years later in January 2019.

(For more deets, you can read this or you can watch this episode of Consti-tuition on citizenship)

If this Bill is passed in the upcoming Parliament session, India will end up legitimising the process of targeting immigrants from particular communities, namely Muslims and Jews (yes, there are a tiny amount of Jewish people in these countries too). This would also require extensive records to be kept of illegal immigrants who belong to particular communities, which is where the National Register for Citizens (NRC) comes into the picture.

This Bill was also sent to a Joint Parliamentary Committee which has given a thick report examining every single detail of the Bill. What’s important here is that seven members of the committee gave dissent notes (page 88 onwards) and argued how problematic the law is. It’s very likely that the Bill will be brought in and passed quickly in both houses of Parliament in the upcoming session.

Important to mention here that Amit Shah went bonkers with the immigration issue during the election campaign, both for the NRC and Citizenship (Amendment) Bill. He is also being hailed as the “election machine” that allowed the BJP to make headway into West Bengal. So if, by chance, he becomes the next Home Minister, this might be the first thing he will want brought to the house and pushed through.

The Muslim Women (Protection of Rights on Marriage) Bill

Way back in December 2017, right at the end of the Winter session, The Muslim Women (Protection of Rights on Marriage) Bill, 2017, aka Triple Talaq Bill, was bulldozed through Lok Sabha without giving members an opportunity to file amendments. After that an ordinance was promulgated in September 2018, enacting the law while it was still languishing in Rajya Sabha. Then, in December 2018, a new Bill was brought in with the same title but with a few amendments to it. The old Bill was withdrawn and the new Bill, which replaces the ordinance was cleared by Lok Sabha on December 27, 2018. And then it was re-promulgated as an ordinance. Again.

Confused? Well, join the club.

Let me simplify the above part a little more: Modi Government brought in a Bill banning triple talaq, then they bulldozed it through the Lok Sabha, then there was outrage in the Rajya Sabha, then the Government withdrew it, then they passed an ordinance enacting a new Bill with some changes and then they brought this new Bill to the Lok Sabha. That was passed by Lok Sabha and then this new Bill lapsed after the 16th Lok Sabha ended. Meanwhile, women rights organisations argued that since the Supreme Court has already declared Talaq-e-Biddat as an unconstitutional practice, why is the Government pulling these bizarre stunts at all?

Whew.

The answer to that question is: they wanted to make it a criminal offence. This Bill makes all declaration of talaq, including in written or electronic form, void and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. The proposed law makes declaration of talaq a cognisable offence, attracting up to three years’ imprisonment with a fine.

This Bill was re-promulgated as an ordinance three times, the latest one being in February 2019. So, technically, even if Parliament hadn’t given its approval, this Bill was a law in intermittent periods for the last two years. Now Modi 2.0 will likely push it through with least resistance.

The Aadhaar and Other Laws (Amendment) Bill, 2018

The Supreme Court judgment on Aadhaar last year in September sent ripples across the biometric authentication ecosystem. One big thing the Supreme Court did was to disallow non-government private entities from using Aadhaar for authentication. They also suggested a bunch of other changes to the law and struck down some provisions of the original act. The Act, in 2016, was passed as a money bill. Meaning, the Rajya Sabha had no say in the process except a recommendatory role. The Supreme Court, in all its wisdom, did not do anything about that point.

In January 2019, the Modi Government brought in The Aadhaar and Other Laws (Amendment) Bill, 2018 to match the judgment and make changes to the law accordingly. But, strangely enough, they also made an attempt to overturn the judgment on the most contentious point of private entity usage. The new law introduced an “offline verification” option to do this, made changes to the Prevention of Money Laundering Act (PMLA) and Telegraph Act to allow authentication of Aadhaar. Along with that, they gave more power to the Unique Identification Authority of India (UIDAI) while reducing accountability towards Parliament.

In February 2019, the Government then promulgated an ordinance to enact this law. Again, without parliamentary consent and that too merely days before the 16th Lok Sabha dissolved. The Bill lapsed but now it is likely to be reintroduced and cleared by Parliament. If not, there is always the Ordinance route, clearly.

The Transgender Persons (Protection of Rights) Bill, 2016

This is an interesting one. Way back in 2014, a Rajya Sabha Member of Parliament named Tiruchi Siva, piloted a private members’ bill for the Rights of Transgender Persons Bill, 2014 which was cleared by the upper house. This was the first time in 46 years that a Bill proposed by an individual member, not the Government, managed to clear one house.

(Read this to know more about what is a Private Members’ Bill.)

After this, in a strange move in December 2015, the Government decided to introduce its own Bill on the same subject. But, this one was in Lok Sabha. This Government Bill, now titled The Transgender Persons (Protection of Rights) Bill, 2016, massively diluted Siva’s private member’s bill. Not just that, it’s only logical that if a Bill is passed in the upper house, it should be sent to the lower house for consideration and passing. Four years later, that still hasn’t happened. The Government’s Bill lapsed in the lower house and the private member’s bill, cleared by Rajya Sabha, hasn’t. Strategy-wise, it seems this was a blatant attempt by the Modi Government to prevent the private member’s bill from going any further. If they would have allowed this, it might have encouraged other individual MPs to take matters in their own hands, propose Bills and push them through the Rajya Sabha where the BJP doesn’t have a majority.

Now, it’s likely that the Government’s Bill will be yet again revived and used to override Siva’s Bill. If not that, both of these Bills will be sent to cold storage along with the rights of millions of trans-persons.

National Judicial Appointments Commission

In 2014, one of the first things the Modi Government did in the last term was to introduce the National Judicial Appointments Commission (NJAC) Bill. This was a much-needed reform in the way judges are appointed in India. What’s more interesting is that it was a Constitutional Amendment which needed the approval of a two-thirds majority of both houses and the Modi Government managed to clear it in flat three days.

This was a Bill which eradicates the Collegium system and replaces it with the NJAC. Collegium is a process where a committee of the Chief Justice of India, four senior judges of the Supreme Court and three members of a High Court (in case of appointments in the said high courts) take decisions related to appointments and transfer of judges in the Supreme Court and High Courts. This is all completely controlled by the judiciary.

NJAC, on the other hand, says that there would be a commission with the following composition:

1. From the Judiciary, there would be the Chief Justice and two judges of the Supreme Court.
2. From the Legislature, there would be two eminent personalities and the Law minister.
3. In turn, the two eminent personalities would be picked by the PM, the Leader of Opposition and the Chief Justice of India.

They would together take a call on the appointment of judges. Which means, both Parliament and the Court would have a say in appointments. It was a fine balancing act, which was supposed to provide much joy! But that didn’t last because, in October 2015, the Supreme Court struck the whole thing down saying it was unconstitutional. In short, a law which had 100 per cent approval of Parliament, which amended the Constitution, was declared unconstitutional.

My guess is this is not over. Maybe Modi 2.0—with a larger mandate—is likely to try and push this through again. Perhaps it might even succeed this time given that the Supreme Court has new judges in place which might think differently than the old ones.

Strike while the seats are hot

Now that Modi is back with a bigger mandate and the Opposition is weaker than ever, it’s likely that the Government will go bonkers with new laws in the initial days, especially contentious ones. It will take a while for the Opposition to find its voice again and even if they do—even if they legitimately criticise these policies—there is a high likelihood that they will be dismissed as anti-nationals/tukde-tukde/khan-market/urban-naxal gangs. Dissenting opinions might not matter much in the coming days because this is Modi 2.0. And he’s bigger, larger and better than five years ago.

Get ready for some epic parliamentary bulldozing.