Legislative overreach

Most new enactments are not very effective because they are at odds with the basic principle of law making; namely, laws should be lenient but enforcement should be strict

Legislative overreach

Societal norms are changing rapidly with impatience, intolerance, jingoism and religiosity informing everyday life. No one should grudge such changes; after all, the majority is the best judge for the norms that society should follow. However, the transposition of these newer norms into legislative enactments is creating problems for all, not necessarily only for those at whom such provisions are aimed.

For example, Excise Duty on liquor was one of the pillars of the Bihar State budget contributing Rs 4,000 crore to the exchequer before prohibition was introduced in April, 2016 by the Bihar Prohibition and Excise Act 2016 that prescribed a minimum of 10 years of jail for alcohol consumption (which could extend to imprisonment for life) besides a minimum fine of Rs 1 lakh (which could extend to Rs10 lakhs). It has been a downhill journey since then.

So far, over 2.7 lakh people have been arrested under the new Act, and more than 30 lakh litres of hooch has been confiscated, of which 3 lakh litres was confiscated during the just concluded elections. Interestingly, in May 2017, the Bihar police claimed that rats had polished off 9 lakh litres of alcohol seized by them. Between April 2016 and September 2020, the Excise Department conducted 488,450 raids, arresting 67,367 people. Consequently, courts in Bihar were flooded with more than 2 lakh cases filed against prohibition violators and the Chief Justice of the Patna High Court was constrained to write to the Chief Minister to change the prohibition law because prohibition cases were clogging the Courts, leaving little time for judges to hear more important cases. A somewhat similar situation obtains in Gujarat where the amended Gujarat Prohibition Act provides a 10-year jail term for consuming liquor.


Then, many States have enactments that prescribe long prison sentences ~ up to life imprisonment for cow slaughter and consuming beef. The latest trend is that of making inter-faith marriages punishable. The Madhya Pradesh Freedom of Religion Bill, 2020 provides for five years of rigorous imprisonment to those involved in love-jihad i.e., marrying a person of a different faith by concealing one’s religion. Significantly, there is no prohibition in the Constitution or any existing Act for inter-faith marriages and the Special Marriage Act 1954 (and before that the 1872 Act) was specifically enacted to legitimise marriage between people following different religions. UP, Karnataka and Bihar are set to follow the MP example. Thus, it would appear that the sovereign power of legislatures is being used to criminalise personal preferences in matters of diet and sex. While modern jurisprudence has progressed to the stage of decriminalising actions that do not harm anyone other than the perpetrator (like suicide or sexual relations between consulting adults) it seems that our legislatures are caught in a time warp, unwilling or unable to appreciate the fine distinction between a social or moral wrong and a legal wrong, often enacting laws criminalising social or moral evils, that have an immense potential for misuse. Cow vigilantes wreak havoc in the guise of enforcing the ban on cow slaughter so often that the Supreme Court had to come to the rescue of the victims. The Dowry Prohibition Act, that was enacted to curb the evil practice of dowry, was so widely misused to settle scores that the Supreme Court was constrained to nullify the provision of instant arrest for dowry related offences. Most new enactments are not very effective because they are at odds with the basic principle of law making; namely, laws should be lenient but enforcement should be strict. The only way to deter criminals is to catch them and bring them to justice rather than enhancing punishment for crimes but making no additional efforts to catch criminals. Lord Macaulay, while drafting the Indian Penal Code desisted from providing the death penalty for rapists because he reasoned that if punishment for rape and murder was the same then rapists would also murder their victims. The amount of thought and preparation required for a criminal enactment like the Indian Penal Code is totally missing in the newer enactments, which often results in persons charged with the newly created offences walking free on technical grounds.

Moreover, most of the new enactments are knee-jerk reactions to public resentment to the generally worsening law and order situation. The horrific rape and murder of a veterinary doctor in Hyderabad prompted the Andhra Pradesh Government to enact the Disha Act which provides capital punishment for rape and envisages the completion of investigation in seven days and the subsequent trial in fourteen days. Little thought, however, appears to have been given by the lawmakers, as to how within this short period the culprits would be identified and caught, legal formalities under the Criminal Procedure Code complied with and a fair trial conforming to the requirements of the Evidence Act, could be completed. It may be noted that trial in the Nirbhaya Case, which had the public, police and the judiciary in overdrive, was completed only after nine months.

Under Indian criminal jurisprudence, one of the essential elements of a criminal offence is a guilty mind (mens rea). No wonder, the Courts take a dim view of legal provisions which criminalise everyday actions, done without any criminal intent. The really draconian sections of many new Acts, like some penal provisions in the Bihar Prohibition Act or the more stringent provisions of the Prevention of Money Laundering Act were struck down by the Courts for their unconstitutionality.

Encomiums have been showered on the Andhra Pradesh Legislative Assembly for passing the Disha Act but if our law makers had been really serious about women’s safety, they could have initiated serious action after the publication of the Thomson Reuters Foundation Report, that had ranked India as the most dangerous place on earth for women. Sadly, the Union Government rejected Thomson Reuters Foundation Report in its entirety.

Another emerging disturbing trend is the propensity of the Executive to act as judge, jury and executioner by providing for preventive detention for common crimes, though, by definition preventive detention is not intended to punish the criminal, but to prevent the criminal from committing further crimes. For example, the Gujarat Prevention of Anti-Social Activities Act provides for preventive detention of one year for, inter alia, dangerous persons, drug offenders, bootleggers, gamblers, and cow slaughterers ~ a wide list of offences. The situation in many states is not much better; till August 19, the UP Police had invoked the NSA against 139 people, 76 of them for cow slaughter.

An inescapable corollary to the criminalisation of ordinary actions is that police are often called in cases which are civil in nature; witness the trend of filing an FIR for rape when a love affair goes awry. Instead of curbing the involvement of police in cases of a civil nature, there are a number of instances where Governments itself gets innocent persons arrested for tangential purposes. Needless to say, the police revel in the unbridled power made available to them.

In such circumstances, criminal cases have multiplied and the burden of investigating and prosecuting a large number of trivial cases has made the police force lose focus on more substantial ones. Our overburdened judicial system is not able to handle the additional burden created by the new enactments. The sheer volume of trivial cases eats away precious judicial time. For example, 60 lakh cheque bounce cases are pending in our courts. Our jails, that are already full, do not have the capacity to accommodate any more inmates. Therefore, there is an overwhelming need not to criminalise ordinary acts and create new categories of offences.

Ayn Rand had succinctly observed: “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

Who wants a nation of lawabiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted ~ and you create a nation of law-breakers ~ and then you cash in on guilt.” (Atlas Shrugged)

Let us not allow our lawmakers to turn us into a nation of law breakers.

The writer is a retired Principal Chief Commissioner of Income-Tax