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Bills of rights for the vulnerable

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Why the second Modi government should send lapsed legislation back to the drafting stage

Towards the end of the previous government’s tenure, a number of controversial bills were introduced in Parliament. Political imperatives ensured that they were not, ultimately, enacted into law: some were stalled in the Rajya Sabha after being passed by the Lower House, while in other cases, the government itself decided not to proceed with them. With the dissolution of Parliament, these bills lapsed; however, with the 2019 general election yielding a decisive mandate in favour of the ruling Bharatiya Janata Party (BJP), the attention will undoubtedly turn to whether the new government will attempt to revive some aspects of its erstwhile legislative programme.

The problematic social bills

In the social sphere, the government introduced the Transgender Bill, the Surrogacy Bill, and the Trafficking Bill. In each of the cases, the draft legislation was — correctly — introduced with the aim of addressing an existing lacuna in the legal landscape. The recognition of transgender rights by enshrining them in law had long been a demand of the community; the legal regulation of surrogacy and the tackling of trafficking as well arose out of the articulated claims of grassroots social movements, debated and framed over many years of engagement and activism.

However, when it came to the content of these bills, consultation with impacted communities was effectively eschewed, and the result was a set of drafts that, far from protecting rights, actively harmed them. Unsurprisingly, therefore, the draft bills were met with a spate of objections and protests. For example, the Transgender Bill did away with the fundamental and non-negotiable principle — and one recognised by the Supreme Court in its NALSA judgment — of the right to self-determination of gender identity. Instead, it placed such decisions in the hands of government-appointed committees, extending state control over gender identities rather than liberating or emancipating them. It also contained deeply suspect provisions on gender reassignment surgery.

Similarly, the Surrogacy Bill excluded LGBT individuals from its ambit (despite their recognition as equal citizens under the Constitution by the Supreme Court), imposed discriminatory age restrictions upon men and women, and by entirely outlawing “commercial” surrogacy (instead of regulating it with appropriate safeguards) opened up space for underground and unreported exploitation of women, effectively creating a black market.

Lastly, the Trafficking Bill criminalised begging without providing any manner of effective alternatives and failed to distinguish between non-consensual trafficking and consensual sex work. It thus opened the door to criminalising livelihoods on the basis of what was effectively a set of narrow, moral objections.

Thus, what united these three problematic bills were the following aspects. First, each of them dealt with intimate subjects such as individuals’ decisions of what to do with their body, personal dignity and autonomy, and gender identity. Second, they concerned the rights of some of the most vulnerable and marginalised members of our society. Third, they were drafted without adequately consulting with, or listening to, the members of the communities who were impacted. Fourth, instead of guaranteeing and securing the rights of these communities to be free from state interference, they extended the state’s control and domination. And last, they were met by extensive and widespread protests from the communities themselves.

The Citizenship Bill and NRC

The government also attempted to enact the Citizenship (Amendment) Bill into law — an attempt it was forced to abandon when its own allies protested against it. Advertised as a measure for benefiting the vulnerable and the marginalised, the bill would have granted fast-track to citizenship to persecuted minorities from neighbouring countries, who were Hindus, Sikhs, Jains, Buddhists, Parsis, and Christians — but not Muslims. This was, at a very basic level, illogical and self-contradictory, apart from being clearly discriminatory on grounds of religion: the examples of the Ahmadiyyas and the Baloch in Pakistan make it clear that, just like any other identity, there are communities of Muslims in neighbouring countries who face persecution on the basis of their religious beliefs. Had the bill been enacted, therefore, it would undoubtedly have been challenged in the courts and tied up for a long while in litigation. However, strong movements in the northeastern States — concerned both about the demographic consequences and the anti-secular nature of the bill — ultimately forced the government to not go through with the legalisation.

At the same time, however, the Supreme Court-driven National Register of Citizens (NRC) process in Assam became a significant aspect of the ruling party’s election rhetoric during the recent campaign, with some senior party figures stating that they would replicate the NRC process for the whole of India. Apart from the principle of it — there is something particularly repugnant over placing the entire country under a presumption that they are interlopers, unless they prove otherwise — such a move would be a nightmare of administration and implementation, as the example from Assam has shown. There has been considerable — and continuing — confusion over the methods and form of identity that one can use to “prove” one’s citizenship (including “family trees”, which have been found to have a disproportionate impact upon vulnerable and minority claimants). The overlapping functions of the NRC process and the Foreigners Tribunals have added to the confusion, the “objections” process has been openly and publicly abused by individuals in order to harass NRC applicants (what they have called “collateral damage”), families have found themselves bizarrely separated from each other in the NRC, and there have been reports of suicides after each round of the draft.

When this is all happening in Assam, one can imagine the consequences of an attempt to scale it up to the national level. And as a backdrop to the debate, it is important to remember that there is no credible evidence to demonstrate that there actually is large-scale, illegal immigration taking place in India. Therefore, apart from being constitutionally suspect, a massive waste of resources, and a gateway to triggering violence, it is unclear why there even exists the need for such a step.

What lies ahead

It is trite to say that a general election confers a mandate upon the incoming government to legislate in the manner that it deems best and in the public interest. While the government is, of course, entitled to frame its own policies, and draft and implement legislation to enact those policies, there are certain constraints upon how it should go about that task. At the minimum, the voices of those who will be directly impacted by the policy should be listened to and engaged with in good faith, and basic constitutional principles and values ought to be respected.

The last phase of the previous government’s tenure presented a number of examples where these constraints were insufficiently complied with, and the resulting bills would therefore have ended up harming those whose rights they were meant to protect, apart from falling foul of crucial constitutional rights. It is to be hoped that these lacunae and shortcomings are remedied by the continuing government in power. Apart from the courts, however, this would need a sustained public movement around these issues, which can make its voice heard in the halls of power.

(Gautam Bhatia is a Delhi-based lawyer)

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Printable version | Jan 21, 2020 3:05:55 PM | https://www.thehindu.com/opinion/lead/bills-of-rights-for-the-vulnerable/article27354081.ece

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