How has the Indian Constitution moved towards Hitler's German Constitution?

 

S. Kumar

Many political analysts have compared Indian PM Narendra Modi's style with that of German autocrat Adolf Hitler. However, this article has very little to do with the comparison of the two well known powerful leaders separated by different eras. The main intent of this article is to compare the Laws of the present-day Indian system and Laws in Germany during the time of Adolf Hitler resulting in the discontent and disturbance in the society.

The purpose of the article is that both India and Germany before Modi and Hitler respectively had a democratic constitution, but both of them later evolved as an autocratic use of Constitution, with amendments.

Germany was a democratic country before Adolf Hitler became the Chancellor (equivalent to PM) of Germany. Hitler was neither a monarch nor did he acquire power through a coup. His autocratic rule was legally implemented. India is also celebrated as world's largest democracy.

India's trial with autocracy during 1975 emergency gives insight about how Indira Gandhi tried to control the Judiciary and Legislature using Constitutional laws, the majority of which were later repealed. However, the unholy idea to control the Judiciary and Legislature was kept alive.

The historical comparison of the law of two countries will enable us to understand how the German democratic system moved to authoritarian rule, and how democratic system like India can give way to an autocratic system. Additionally, it will also help us understand how to protect the democratic system by using the lessons from history.

Ideas of Hitler's Germany

After almost decade-long military activism to overturn the German Government, on 25 September 1930, Hitler testified that his party would pursue political power solely through democratic elections. Hitler ran for 1932 elections and for the first time in history he used aircraft travel effectively for political campaigning. He came second with 35% votes. Due to no single party majority, Hitler became Chancellor under an alliance with another party. Due to unstable minority Govt, elections were called again in March 1933.

Just before the March 1933 election, Reichstag (parliament) was set on fire by the communists, many allege that Hitler's party was secretly involved in the burning. This resulted in "Reichstag Fire Decree", an emergency law to suppress civil liberties and allowed detention without trial [Complete Text in Annexure 1]. Due to a suppressed opposition, and using emergency law, Hitler's party won the highest vote share of 44% but failed to get an absolute majority. Hence, Hitler's party formed another minority Govt with an alliance partner.

Within 3 weeks of high voltage elections, to achieve full political control, Hitler's government brought The Enabling Act of 1933 (formally called as "Law to Remedy the Distress of the People and the Reich") in the newly elected Reichstag (parliament). The law was passed under very turbulent circumstances.

The Act gave Hitler's cabinet the power to enact laws including Constitutional laws (with few exceptions) without the consent of the parliament for four years. This Enabling Act was renewed twice, in 1937 and 1941. There were multiple decisions taken by Hitler to establish his autocratic power supported by Enabling Act and Reichstag Fire Decree. Few are listed below

  1.  Hitler seized the President's powers for himself
  2. He declared all other political parties illegal (his campaign speeches was: "I set for myself one aim ... to sweep these thirty parties out of Germany!"). Elections were held in 1936 and 1938 with a single list of Nazis and pro-Nazi "guests" which can't be said fair and free election.
  3. The Reichsrat, representing the states, (equivalent to Rajya Sabha) was abolished.
  4. The consequences of Enabling Act of 1933 were devastating for Germany and the world. Some of the impacts within Germany's Government function are as follows:
  • The Act formally gave legislative powers to the government as a whole without Reichstag's (parliament) consent.
  • It reduced the Reichstag (Parliament) to a mere stage for Hitler's speeches.
  • There were no longer serious deliberations in Cabinet meetings and gradually all the decisions were taken by Hitler alone, without any cabinet meetings.
  • Separation of Power between and Executive and Legislature vanished, and the power was transferred to Hitler (in the name of the Cabinet) without any accountability to Parliament.

Further, Hitler introduced major changes in the Judicial system. The German judiciary system underwent "coordination" aligning with Hitler's goals. In 1933, Jewish and Socialist judges, lawyers, and other court officers were purged from their judicial professions. Further, Hitler ordered the creation of the People's Court in Berlin in 1934 to try treason and other important political cases. Academy of German Law and Nazi legal theorists advocated the Nazification of German law.

"History doesn't repeat itself, but it does rhyme." - Mark Twain

Indira Gandhi's Legacy

In 1975, India entered into a dark era of Emergency. Although the reason for declaring the emergency is said to be a Court order, however, the laws introduced during emergency give the clear picture of Indira Gandhi's motive behind the emergency. Indira Gandhi introduced 42nd Constitutional Amendment, also called a mini-constitution to control Legislature and Judiciary. Few important provisions of the amendments were:

  1.  Rights - Primacy to Directive Principles over Fundamental Rights. Laws prohibiting "antinational activities" could not be invalidated because they infringed on any of the Fundamental Rights.
  2. Judiciary - Power of Judiciary was severely curtailed. Further, Judiciary's power to review Parliament's power in amending the Constitution was curtailed.
  3. Legislature - Legislative members can be disqualified on corruption charges etc. with President as the decision maker on the advice of executive, without mandatorily following the Election Commission's opinion.
  4. A majority of the laws were later repealed in 44th Constitutional Amendment after the emergency. However, the legacy of her ideas was kept alive.

How is India gradually moving towards Hitler's and Indira Gandhi's autocratic ideas?

 After Nehru's era and Congress party's split, the Congress bastion at the state level started falling apart with increased aspiration of the politicians and subsequent defections. After the Congress split in 1967, YB Chavan Committee was formed to propose a new law for barring political defection in 1968. Then, an Anti-Defection Law bill was introduced in 1974 through 32nd Constitutional Amendment, which failed in the Parliament, after which her quest to control the Legislature fell fully after elections. In 1975, she forced emergency on the nation.

Though Indira Gandhi could not succeed completely in making India a failed state, the legacy of her ideas certainly led India to make it a failed state. In 1984 after Indira Gandhi's assassination and anti-Sikh riots, Mr. Rajiv Gandhi won the parliamentary election with a massive majority. Within one month of the election, the unfulfilled desire to control the legislature fully without any accountability was satisfied with 52nd Constitutional Amendment i.e. Anti Defection Law or Dal Badal Kanoon.

Anti Defection Law merged the power of Legislature (Parliament controlled by majority party) and Executive (held by majority party) with the Party leader. The power of executive and legislature was transferred to the majority Party leader with no Parliamentary accountability. This led to the same impact as that of the Enabling Act of 1933 used by Hitler in Germany, which resulted in the transfer of Legislative power to Hitler (in the name of Cabinet).

Contemporary Governance methodology

 Under the present circumstances, Modi Government has passed many bills as Money bills which do not require Rajya Sabha's (representing states) approval. Adhaar bill and 40 laws in the Finance Bill 2017 were passed as the money bill. Further, Finance minister Arun Jaitley said in a statement that indirectly elected Rajya Sabha should not hold laws passed by directly elected Lok Sabha.

Judicial control was recently tried with NJAC Act 2014, which was struck down by the Supreme Court. Recently, the central government has passed new laws in the Finance Bill 2017 to control the quasi-judicial body Tribunals.

Curtailment of Civil liberties is important to maintain autocracy. Multiple laws were tried in India including TADA, POTA, UAPA to suspend civil liberties in case the state wanted to impose its will. Further, the recent Finance Bill 2017 allows tax authorities for search and seizure unaccountably.

The above instances prove the impact of the law.

Election Procedure

Elections are an important instrument to introduce democracy and check to stop the extension of autocracy. However, the election in Indian Democracy is questioned widely in public with the use of Electronic Voting Machine (EVM). EVM is proposed to be replaced by VVPAT with paper trail, however, no paper trail has been recounted till date in any VVPAT machine whenever the machine is used on a trial basis. Till date, recounting of the paper receipt were never approved in case of election with VVPAT. Hence, the EVM machine with paper trail (called VVPAT) seems to be useless as the existing laws provide discretionary power to restrict recount of paper receipt.

The following table provides detailed evaluation of comparison between Indian laws and Hitler's Germany legal system:

Hitler’s Germany

India                                       

Legislature Control

 

Enabling Act of 1932

Purpose:

$11.     To usurp power from Reichstag (parliament)

$12.     Provide stable government

$13.     Eliminate dependency on alliance partner

$14.     Reduce accountability to Parliament

Result

$11.     The Act formally gave legislative powers to the government as a whole without Reichstag (parliament) consent.

$12.     It reduced the Reichstag (Parliament) to a mere stage for Hitler's speeches.

$13.     There were no longer serious deliberations in Cabinet meetings and gradually all the decision were taken by Hitler only without any cabinet meetings.

$14.     Separation of Power between and Executive and Legislature was vanished and the power was transferred to Hitler (in the name of Cabinet) without any accountability to Parliament.

State Representation was abolished

Reichsrat, representing the states, (equivalent to Rajya Sabha) was abolished

 

Till Emergency: During 1974 anti defection law failed in the Parliament.Under emergency, a new law was passed to disqualify Legislative members on corruption charges etc with President as decision maker on advice of executive, without mandatorily following Election Commission opinion. President was bound to follow advice of Cabinet.

Post Emergency: Anti Defection Law

Purpose:

$11.     Provide stable government

$12.     Eliminate dependency on elected party members

$13.     Reduce accountability to Parliament

Result

$11.     Formally executive and legislative power is transferred to majority Party leader

$12.     Now, Lok Sabha and Rajya Sabha is mere stage for speeches as votes (for or against motion) is decided by Party leader remotely

$13.     Cabinet is mere formality. Many Ordinances were directly sent by PMO to President without cabinet approval. Decisions like demonetization are done in 1 hour meeting. UP CM Yogi took 50 decisions without cabinet meeting !

$14.     Separation of power between executive and legislature is merged to Party president.

Role of Rajya Sabha (representing states)

$1      Adhaar bill and 40 laws in Finance Bill 2017 were passed as money bill (Rajya Sabha approval not required).

$1      Finance minister Arun Jaitley questioned the role of indirectly elected Rajya Sabha to hold laws passed by directly elected Lok Sabha.

Judiciary Control

$11.     The German judiciary system underwent "coordination" alignment with Hitler’s goals

$12.     In 1933, Hitler purged Jewish and Socialist judges, lawyers, and other court officers from their judicial professions

$13.     Hitler ordered the creation of the People's Court in Berlin in 1934 to try treason and other important "political cases."

$14.     Academy of German Law and Nazi legal theorists advocated the nazification of German law, cleansing it of "Jewish influence.

Till 1975 Emergency: Powers of Judiciary were severally curtailed. Further, the power of Judiciary to review laws passed by Parliament was eliminated.

Post emergency:

$11.     NJAC Act 2014 enabled greater say of executive in the appointment of Judges. This law was struck down by Supreme Court.

$12.     Finance Bill 2017 allows central government to decide the terms of service including appointments, term of office, salaries and allowances, and removal of Tribunal members through rules.

Civil Liberties: Reichstag Fire Decree

Purpose:

This law was introduced as a direct response to the Reichstag Fire.

Result:

$11.     Suspension of Civil liberties

$12.     Suppression the opposition

During emergency: Laws prohibiting "antinational activities" could not be invalidated by Court.

Post emergency: Terrorist and Disruptive Activities Prevention Act (TADA), Prevention of Terrorism Act (POTA), Unlawful Activities Prevention Act (UAPA), Finance Bill 2017 allowing uncontrolled search and seizure.

Purpose: Response against terrorist activities and corruption

Result:

$11.     TADA, POTA, UAPA has resulted in multiple controversial cases where a convict is tried for more than 10 years without any results.

$12.     Finance Bill 2017 gives taxman unaccounted rights for search and seizure. Results of the law are yet to be seen.

Election Manipulation

Hitler was elected twice after 1933 in 1936 and 1938, however voters were presented with a single list of Nazis and pro-Nazi "guests"

During the emergency: Emergency period was extended and the parliamentary election was extended to 6 years instead of 5 years.

Post Emergency: Booth capturing were first used to make unfair election. Later Electronic Voting Machine was used which further might have damaged the election process. EVM was first used in 1982 election. It was fully implemented (after removing paper ballot completely) in 2004. Multiple complaints have been lodged against use of EVM.


Hitler is known for his fascist ideas and the holocaust perpetrated by him. However, his ideas could not have been implemented, without changing the constitutional laws of Germany, using power of the state authority. He was fundamentally against democratic ideals.

After a promising start of democracy in the 1950s, the Indian governance system has slowly and gradually moved towards the same direction by altering the Constitutional laws fundamentally. The voting power of Elected Representatives (MP/MLA) have already been taken away and fundamental rights of citizens are compromised using severe 'anti-national' laws. Further, the most important pillar of democracy, the Judiciary is dominated by a single caste and the election process is suspected to be compromised. It is high time that necessary corrective actions are taken to avoid another tragedy like Germany.

Annexure 1: Order of the Reich President for the Protection of People and State

On the basis of Article 48 paragraph 2 of the Constitution of the German Reich, the following is ordered in defense against Communist state-endangering acts of violence:

Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom [habeas corpus], freedom of (opinion) expression, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications. Warrants for House searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

Annexure 2: Enabling Act of 1933 - Law to Remedy the Distress of the People and the Reich

 The Reichstag (Parliament - lower house elected directly by people) has enacted the following law, which is hereby proclaimed with the assent of the Reichsrat (Parliament - upper house representing states), it having been established that the requirements for a constitutional amendment have been fulfilled:

 Article 1

In addition to the procedure prescribed by the Constitution , laws of the Reich (Germany) may also be enacted by the government of the Reich (Germany). This includes the laws referred to by Articles 85 Paragraph 2 (under emergency provisions) and Article 87 of the Constitution.

 Article 2

Laws enacted by the government of the Reich may deviate from the Constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat. The rights of the President remain unaffected.

 Article 3

Laws enacted by the Reich government shall be issued by the Chancellor and announced in the Reich Gazette. They shall take effect on the day following the announcement, unless they prescribe a different date. Articles 68 to 77 of the Constitution do not apply to laws enacted by the Reich government.

 Article 4

Treaties of the Reich with foreign states, which relate to matters of Reich legislation, shall for the duration of the validity of these laws not require the consent of the legislative authorities. The Reich government shall enact the legislation necessary to implement these agreements.

 Article 5

This law enters into force on the day of its proclamation. It expires on April 1, 1937; it expires furthermore if the present Reich government is replaced by another.

~~~

 

S Kumar is an Engineering and Management graduate from top institutes.

 

 

 

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