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Misdirected Legislation

Let us not allow our lawmakers to turn us into a nation of law breakers. Public outrage against the Hyderabad Police turned to commendation after they ‘encountered’ the accused, in police custody. Quite contrarily, taking serious note of the ‘encounter’ the Chief Justice of India observed that revenge was not justice

Devendra Saksena | New Delhi |

Encomiums have been showered on the Andhra Pradesh Legislative Assembly for passing 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, would be completed. Trial in the Nirbhaya case, which had the public, police and the judiciary in overdrive, was completed only after nine months.

The brutal rape and murder of a young veterinary surgeon in Hyderabad seems to have been the trigger for enactment of the Disha Act. This horrific incident drew widespread condemnation and outrage from all sections of the public. Subsequently, both Houses of Parliament debated the issue to the limits of absurdity, with one law maker suggesting castration of the accused and another, Jaya Bachhan, calling for public lynching of the rapists.

Public outrage against the Hyderabad Police turned to commendation after they ‘encountered’ the accused, in police custody. Quite contrarily, taking serious note of the ‘encounter’ the CJI observed that revenge was not justice. After hearing the relatives of the accused, the Supreme Court ordered the appointment of a retired Supreme Court Judge to probe the ‘encounter.’

Playing to the gallery to the extent of suggesting use of extralegal measures against the accused but not necessarily the guilty persons, ill behoves our law makers. Had our law makers 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 Central Government rejected the Thomson Reuters Foundation Report in its entirety.

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. However, to counter public criticism the Andhra Pradesh Government came up with the hastily drafted Disha Act, instead of making maximum efforts for improving police functioning in the field of detection and prosecution.

The high profile Unnao rape case, where the accused was a sitting MLA of the ruling party, did not progress an inch for two years till the Supreme Court intervened and transferred the trial to Delhi. Significantly, the trial court judgment castigates the CBI for not carrying out the investigation in accordance with the POCSO Act and riding roughshod over the victim’s rights and sensitivities. A large number of cases where rape victims were burnt by the accused when they refused to withdraw their complaints or where the victims burnt themselves after the police refused to nab the accused, point to a tendency of some policemen to connive with the accused, which has to be curbed, to ensure justice to the victims.

Delays in investigation and trial can be minimised, if instead of substantive law like the Indian Penal Code, procedural law (Civil Procedure Code, 1908 and the Criminal Procedure Code, 1973) is changed because the judicial system would definitely improve if a legal framework is created that is capable of harnessing twentyfirst century technology. Corresponding SOPs would also have to be designed. Patchwork changes to procedural laws have failed to address the problem of judicial delay and corruption.

Another disturbing trend noticed recently is the propensity of Legislatures to criminalise ordinary acts which are at best moral wrongs. For example, laws of a large number of States prescribe prison sentences for eating cow meat. In addition to being injurious to health, drinking liquor in Bihar or Gujarat can land you in prison for a long stint. It is quite another matter that within two years of its enactment, more than two lakh people had been booked under the Bihar Prohibition and Excise Act, 2016 prompting the Chief Justice of the Patna High Court to write to the Chief Minister to change the law because prohibition cases were clogging the courts, leaving little time for judges to hear more important cases. Looked at from another angle, the threat of stringent punishment does not seem to have quelled the drinking instinct in Bihar.

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 unwilling or unable to appreciate the fine distinction between a moral and a legal wrong. Very often, disregarding basic principles of jurisprudence, our legislatures enact 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, which was enacted to curb the evil social 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 effective because they are at odds with the basic principle of law making; namely, laws should be lenient but enforcement should be strict. 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 degree of thought or preparation required for a criminal enactment like the Indian Penal Code is totally missing in the new enactments, which results in persons charged with the newly created offences walking free on technical grounds. 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. 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 the Government gets innocent persons arrested to cover its own administrative lapses. A prime example is the Gorakhpur Hospital tragedy where the gas supplier was arrested because he had stopped supplying gas… when a huge amount of money had become outstanding to him. Sundry doctors were also arrested in the same case because they had not passed the supplier’s bills though it transpired that the Government had not provided funds for paying the supplier’s bills. The police revel in the unbridled power made available to them. In these 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 chequebounce cases are pending in our courts. Our jails, which 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 law-abiding 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)