PRE-LEGISLATIVE IMPACT ASSESSMENT

The law is an example of what effect dragnet laws can cause. It resulted in courts reeling with bail cases and yet, legisprudence and demosprudence seem indifferent to how the laws they make will work in life

- Prof Upendra Baxi

GOVERNANCE

In 1851, French philosopher Pierre-Joseph Proudhon wrote that to be “governed” is “to be at every operation, at every transaction, noted, registered, enrolled, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, forbidden, reformed, corrected, punished. It is, under the pretext of public utility, and in the name of the general interest, to be placed under contribution, trained, ransomed, exploited, monopolized, extorted, squeezed, mystified, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and, to crown all, mocked, ridiculed, outraged, dishonoured. That is government; that is its justice; that is its morality.”

Many constitutionally well-off citizens may regard this view as considerably restricted, looking only at despotic, and even barbaric, pathologies of governance. Many others-namely, the high consuming upper middle classes and most citizen bystanders—may regard such governance as necessary evil. But the constitutional underclasses (the dispossessed, disadvantaged, disabled and disenfranchised collectivity) wholly understand these states of affairs and cheat their way into survival, as best as they can, through the every day reality of law, and the victimage, it causes.

The draconian law in Bihar—the Bihar Prohibition and Excise Amendment Act, 20182—is a poignant example of what effects dragnet laws can cause. Its assaults on liberty apparently knew no limits as can be seen by the amendments now proposed. Advocates Danish Zubair Khan and Lokendra Malik, along with others, challenged this statutory denial even of anticipatory bail before Justices Sanjay Kishan Kaul and MM Sundresh who took the first steps towards pre-legislative assessment (PLA).