Is Modi Govt's Bill On Sacking Corrupt Ministers Unconstitutional? Sanjay Hegde Answers | Neelu Vyas

0:00 Well, how does one understand that >> simple formula get out of jail within 30 days or get out of office thereafter. So that that that is the intent of the bill how it is going to be used that the common man is very politically savvy and he will he will understand that how how a period of 30 days can be utilized by whoever has the power to make and unmake governments. What it has undoubtedly done is to give forces which are not political

0:45 in nature, which belong either to the executive as in the police forces or to the judiciary, a much greater say in politics than they hitherto had. the power to arrest people and the power to keep them in prison beyond a specified deadline so that they lost political power. >> But uh do you find the provision really draconian as has been spelt out by many opposition leaders that this is a draconian bill this needs to be opposed tooth and nail. Uh what do you think is draconian from the point of view of the opposition and how >> I don't think it is draconian only from the point of view of the opposition. It can be draconian to any government.

1:30 >> But uh Mr. Heg though it's a political question but I'm tempted to ask you only on the basis of what explanation you gave me just now that do you see this as some kind of a design against prime minister Modi Amita we do know that Amita has prime ministerial ambitions or is it like an overexaggeration? >> I I don't think it is. >> Hello and a warm welcome to HW News Network your one-stop show. Truth be told for some engaging and thoughtprovoking conversations. [Music]

2:23 Union Home Minister Amit Cha today introduced in the Lok Sabha three contentious bills that propose that a sitting minister, Chief Minister or even the Prime Minister can lose their position within a month that is a period of 30 days if they are arrested or detained for 30 days straight over an offense that carries a jail term of 5 years or more. Now this bill has been opposed by the opposition. It's almost like a red rag and a few leaders who spoke inside Lok Sabha like Mr. Assudini who said that this bill violates the separation of powers. It gives executive agencies the power to play judge, jury and the executioner. This bill would empower the unelected to play the role of the executioner. Then uh similarly uh

3:12 Manish Tibari also made a comment saying that the Indian constitution says that there should be a rule of law. The basis of that of that is that you're innocent until proven guilty. And this bill hopes to change that. It makes an executive agency the officer uh officer the it makes an executive agency officer the boss of the prime minister. But uh is this really a dangerous president? If you look at the provisions, this is almost like an auto disqualification of the NATA. Uh uh and if he doesn't quit on the 31st day, uh the president, the governor, the LGs are empowered to arrest these criminal NATAs and the conviction is not needed for accessing the natas. So is this a sign of another

3:57 uh arbitrariness laced in this law? Is it really setting a dangerous precedent? Joining me this evening is Supreme Court lawyer and constitutional expert Saja Heade. Sir, thank you so much uh for joining. And the first clarification is that there are three bills here. There are three bills we are talking about. And of course uh these three bills are under the constitution 130th amendment bill. One is for Jammu and Kashmir reorganization amendment bill. The other one is the government of union territories and amendment bill. But just for the clarification of the viewers because a lot of viewers had been asking on various programs that are these three separate bills applied to three different kind of entities or these are three different geographical boundaries these this law is talking about.

4:43 >> No, these are three bills for three different kinds of entities. But the purposes of all these three bills is the same thing. These bills uh provide that if you do not get bail within 30 days they thereafter on the 31st day you cease to be to hold office. Uh since uh ministers and chief ministers of the of full states and ministers of the union and the prime minister are covered by the constitution. You require a constitution amendment bill. Since the governance of union territories comes also under uh an act of parliament then that act had to be modified and since there are special provisions for Jammu and Kashmir for the

5:29 territory which was the 12th state of Jammu and Kashmir. So so they there would have to be amendments in that in the Jammu and Kashmir act. So three different kinds of constitutional entities have been dealt with three different kinds of three different amendments with similar content. >> Right. Uh but last year as we had seen Mr. Heg there was a huge controversy when Arvin Kjal did not resign from his post. A similar situation was seen in case of Saintil Balaji in Tamil Nadu. So are these two examples the glaring ones which might have led the government to think of a law like this or think of an amendment like this is this what has led to the to this bringing in this kind of an amendment?

6:14 I do not know what the government's thinking is but certainly these two instances will will be cited as uh having prompted the government to come out with with this legislative solution because Mr. Reval for instance definitely said please show me where in the constitution it is it written that a chief minister cannot administer his state if he happens to be in prison. So if there is a anything which is seen as an as a a gap in the constitution that is being sought to be plugged by a suitable amendment. But uh do you find the provision really

7:02 draconian as has been spelt out by many opposition leaders that this is a draconian bill? This needs to be opposed tooth and nail. Uh what do you think is draconian from the point of view of the opposition and how? >> I don't think it is draconian only from the point of view of the opposition. It can be draconian to any government. >> Okay. We've we've had instances in India where you had a government of with a 400 seat majority in parliament which almost got dismissed by the president of the day this I'm speaking of Rajiv Gandhi and Zel Singh. >> Yes. Now if there if there is tension at that level for a for any reason

7:49 and a section of uh the executive and the judiciary were were to side with the with the with the president who wanted to get rid of a particular prime minister then something like this would also possibly be useful. If there if there was somebody who could arrest a prime minister on an offense which was worth more which was more than 5 years of imprisonment and thereafter uh the prime minister concerned did not get bail for a period of 30 days or was denied bail by a judiciary which uh which thought that this was not a case where bail ought to be granted.

8:34 then you could you could conceivably have a scenario where uh you would have a change of government at the center. It almost reminds me of what happens across the border. You had Nawas Sharif, >> the government fall when the Supreme Court of the day caught him out in in a bad uh aid badly drawn up affidavit. Uh and then said that look this man is can no more be trusted cannot be said to be what is it the word I think was Siddiq or something which meant trustworthy and hence he's not qualified to be prime minister of Pakistan. So you see these uh questions of disqualification from office which are

9:21 normally the prerogative of the electorate and the prerogative of parliament or the legislature have now also come in within the realm of a policeman who can arrest and of a judge who can continue to keep the person in prison. >> Okay. So it's like uh translating into more powers for the policemen and the judges if this bill sees the light uh of the day >> and more money for lawyers of course >> and more money for the lawyers but you made an interesting point u yeah uh but Mr. you you said that it's just not for the opposition rule states. So if I am if I go by the example of Chandra

10:06 Babunaidu being the Andra CM or Nitishh Kumar as the Bihar chief minister are there reasons to worry for them after this bill if at all. >> Okay. >> Absolutely. Uh Mr. Naidu you must remember was in prison shortly before he became chief minister. Those cases are not over and if for any other reason something turns up in the investigation which requires another arrest for any reason they all these things will happen and you may you may even have uh motivated petitions for cancellation of bail that can that can also be used supposing

10:55 somebody is on bail and continues to be in office and there's a petition for cancellation saying that look the man is so powerful he is in office and he sent he threatened me on ex on this occasion this occasion and this occasion therefore you please put him back in prison knock him out of office and only then thereafter release him >> but you know already under the PMLA ED was arresting uh the opposition leaders randomly and so many times we've done a program with you So you have a PMLA act which is randomly being exercised upon the leaders of the opposition and now you have this 130th amendment constitution amendment. Uh is it going to be like a like an icing on the cake

11:40 now? Well, yes. Um, because when you arrested under the PMLA, the sections on grant of bail were very tough and had been interpreted in a tougher manner by the Supreme Court by a three judge bench. The conditions for bail said that, you know, you had to be crime of satisfied that the man had not committed an offense and that he was unlikely to repeat an offense. So, And the Supreme Court interpreted it to mean that you know uh you almost needed to complete a trial before you came to that conclusion. And trials in these cases take forever. So if a man is continuously kept in

12:27 prison uh it may it may not even be 30 days. It it might be a couple of years in that point of time. Does he continue to be in office? This is this is the justification that the uh ruling party will prop out. >> Right? >> But uh what it has undoubtedly done is to give forces which are not political in nature which belong either to the executive as in the police forces or to the judiciary a much greater say in politics than they hitherto had. the power to arrest people and the power to keep them in prison beyond a

13:12 specified deadline so that they lost political power. But uh I was also tempted to ask you that why has uh the prime minister been brought into this law because uh there was a law for the MLAs the MPs and was there no provision for the CMS and prime ministers and the ministers and which is why there was a need felt for bringing in this constitutional amendment because why is the removal of prime minister so stressed upon why is the removal of the chief minister so stressed upon that of course has an example as a precedent of Arvin Kjal and Sentil Balaji what we've seen But why the element of prime minister has been included in this uh constitutional amendment bill? >> Well, there could be political messaging there

13:57 but otherwise the prime minister also theoretically is just a minister in the cabinet in the cabinet ministers but he is the head of the that ministry. He is first among equals. His primus interpartis and his resignation amounts to a resignation of the entire cabinet. So, so that that's a thought that did not occur to me. You know, it's not only the prime minister who will get disqualified. You will have the entire cabinet also having to resign with the prime minister. Absolutely. >> Or going out of office and then they will have to be sworn back in. No

14:46 under some other prime minister. >> No. So you are saying that if the prime minister is removed then obviously if uh he's removed that the entire cabinet also falls automatically. >> Yes it it will. It does. But can I ask you one thing and it may be a loud thinking but it's just a little doubt in my mind which is why I want to clarify that uh uh putting this in context with Prime Minister Modi. We already know that he's not held a parliamentary uh uh meeting of his own MPs. There's lot of resentment within the BJP over prime minister, over the conduct of the prime minister, how he functions, how he operates. And now since Amit Sha brought in this bill, can this bill in any way uh hold Prime Minister Modi guilty at

15:33 some point of time? Not really. It the bill can't hold anybody guilty. But can the bill be used in any set of circumstances? I told you how a powerful prime minister can be used against >> No. So I'm asking that can this bill also be used against the current prime minister? >> Yes. If it is if it is passed if it is passed and becomes the law, if the constitutional amendment goes through, yes, why not? So supposing I'm I'm just giving you creating a hypothetical scenario. You have a prime minister who has been in office for a long time. People are tired

16:18 or for any reason they you know people feel that the it's time for the person to go. the person is not going then it can it can be likely that you know a convenient super cop be brought in a case be built up and if there is an if there is an >> but uh Mr. Mr. though it's a political question but I'm tempted to ask you only on the basis of what explanation you gave me just now that do you see this as some kind of a design against prime minister Modi Amita we do know that Amita has prime ministerial ambitions or is it like an overexaggeration >> I I don't think it is I don't think given the current times that there is

17:04 any uh great malevalence or great forward planning of that kind that that is very unlikely. The the proper logic is that you see when ministers are are being sought to be removed and chief ministers have to be removed, you can't keep only the prime minister's office out of it because I as I told you earlier, the prime minister is also a minister. So, so what is sauce for the goose has to be source for the gander. >> Yeah. But uh why is this bill almost like a red wrap for the opposition? What are the inherent dangers and do you see center using its powers to come on the opposition ruling states? Uh which is

17:49 what Abishek Manu Singhi also tweeted and many other leaders have spelled out similar sentiments. >> Yes. Because see most of the agencies are under the guidance and control of the center whether it is the CBI, whether it is the ED or anything. Now those are the agencies which normally are used to arrest politicians. Now uh while ruling parties uh where it's the same ruling party at the center and the state may there may not be friction but where there is a frictiondriven uh relationship between the center and the state and where there is an opposition party in power in the state.

18:36 there will be great temptations for the center to use this avenue as well. Say an important state like West Bengal which is going to the polls if uh and where the state has defied the center for now what three elections going continually. So if the center says no it is time that there is double engine everywhere and that there is an alignment at center and state how do we achieve that except by knocking off the great regional parties then the this provisions if brought into force will be most useful. No, but do you see this as

19:23 a multi-pronged approach which BJP is adopting or weeding out the regional leaders through bills like these? Then you have a one nation, one election which again marginalizes the regional parties further. uh do you see this as a multi-pronged approach which is being deliberately adopted by the ruling party so that it can continue as an aar pradhan mantri or as an ajar amar party being as BJP >> well I don't know what their political ambitions are and uh I'm tempted to quote uh what vinova pave said during the declared emergency that it can't be an emergency.

20:09 >> Mhm. So nothing is am nothing is am but uh the possibility of any party at the center using this at uh against a party which is in opposition to it but in power in the states to destroy that party's control over that state government. That is very very likely and opposition parties in the state towards the end of their term about to face elections can be very very vulnerable

20:57 of a popular chief minister or to deprive uh the party at at the state level of any incumbent approach you know if you bring down the government you a few months you have president's role then uh the decisions at the ballot at the ballot also sometimes change >> but uh isn't it very interesting Mr. that this bill is coming at a time when Bihar elections of course are just around the corner. So forget Bihar but next year the the uh the the states which are going to polls are Kerala, Tamil Nadu, West Bengal uh all these three are opposition

21:43 ruling states. So are there dangers lurking behind you know as far as these states are concerned and deliberately the timing of the bill is such that it can be suited uh to you know coincide with the elections there. >> Yes. Because you see the bill has not you know gone to the select committee by the time the select committee does its work and sends it back uh it would be time for it to be in the winter sessions of parliament for instance. Yes. >> And it the elections are only thereafter. The elections in Kerala and all are are thereafter. So I I this is a government which when it comes to the planning of legislation

22:30 thinks uh not only in terms of uh sessions but in terms of the years ahead. So whether there is any particular uh uh plan uh to bring down popular or strong and persistent regional forces who are operating in one or two states and to replace them with national forces is something that only time will tell. >> But also why forget the BJP ruled states. Now you have popular chief ministers like Yogi Aditanat who obviously are not on the same page as the prime minister. It's it's a well-known fact. Then maybe somebody like Shiraat Johan who was seen as prime

23:16 minister's competitor but in the yester years he was the chief minister of Madhya Pradesh. So can BJP use this law for its own ministers if it intends to house them as well? But once you do once you do it for the opposition, you you can very well turn on your own people also and then say look I I have acted the same manner whether it was my chief minister or any other chief minister. So yes, in in terms of uh possibly undoing the federal nature of our politics and of weakening the states, this bill will will certainly have uh

24:05 have these propensities >> right >> in a great measure. So uh chances are high that this constitution amendment bill might be challenged because if you're saying it's an attack on the federal structure, it aims at weakening weakening the political party especially the regional forces. Uh so I'm sure these parties will approach the court. They will challenge the amendment. >> Well, if those parties don't challenge, somebody or the other will challenge. But constitutional amendments can only be challenged on the grounds that they break the basic structure of the constitution or they destroy it in some manner or the other. Which part of the basic structure? Uh that would require

24:51 quite some thinking >> but I'm sure the bill has just been uploaded on the Lok Sabha website and one will have to read and see. primacy like whatever you've seen so far does it seem to violate the basic structure of the constitution in any way? >> Well uh you see lawyers should not give advice uh in public where where later on they might have to take one position or the other. >> All right. All right. So my last question to you sir is that uh so what are what is the biggest takeaway from this uh 130th constitution amendment bill as a common man would understand forget the political parties of course

25:36 out of politics and about the larger issues they've raised already inside the parliament but from a common man's perspective uh how does one take this constitution amendment bill how does one understand that >> simple formula get out of jail within 30 days or get out of office thereafter. M >> so that that that is the intent of the bill how it is going to be used that the common man is very politically savvy and he will he will understand that how how a period of 30 days can be utilized by whoever has the power to make and unmake governments >> and I'm just repeating myself with that

26:23 same question which I asked you that this bill can be used against Prime Minister Modi. It can be used against the BJP allies, its own allies and it can be used against the BJP chief ministers also. >> It can be used everywhere. The question is in whose hand have you given that power? Obviously the power lies in central hands. So it is much less likely to be used against the center itself. But every state level politician who does not align with the center might be at risk. >> Thank you so much Mr. Hay for joining on HW. Thank you sir. Thank you ma'am. >> Thank you.

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