Recently, there has been a spate of legislation prescribing harsh sentences for what are at best moral wrongs. Thus we have the amended Gujarat Prohibition Act which provides a 10-year jail term for consuming liquor within the state of Gujarat. The more stringent Bihar Prohibition and Excise Act, 2016 prescribes a life in prison for consumption of liquor. Similarly, in most States long sentences are prescribed for eating cow meat. Even legislation like the Aadhaar Act has punitive provisions. Suffice it to say that no recent Act, whether enacted by Parliament or by any State legislature, is bereft of penal provisions.
The very large number of laws and their varied interpretations leave the common man at a loss. Adding to the confusion is a police force that enforces law according to its own understanding or on instructions of the political executive, but seldom on sound judicial principles.
Recently, we had a string of cases where the police applied Section 66A of the Information Technology Act on Facebook users, even after the section had been struck down by the Supreme Court in 2015. To curb harassment of women ~ an election promise of the Uttar Pradesh CM ~ police is deployed in strength outside women’s colleges in UP, with the objective of catching single males found in the vicinity. If caught, the men are questioned closely and released only after a couple of lathi blows or a dozen sit-ups.
In a more serious vein, instances have been reported where sedition charges were slapped on young men for ridiculing leaders of the party in power. Such misguided interpretation of legal provisions often brings the common man in conflict with the law, with vindication only at the end of a long drawn legal process.
It would appear that while modern jurisprudence has progressed to the stage of decriminalising actions that do not harm anyone else than the perpetrator (like suicide or sexual relations between consulting adults) our legislatures are unwilling or unable even 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 which have an immense potential for misuse. The so-called cow vigilantes wreak havoc under the guise of enforcing the ban on cow slaughter so frequently that the Supreme Court had to come to the rescue of the victims. The Dowry Prohibition Act, which had been enacted to curb the evil social practice of dowry, had been so widely misused to settle scores that the Supreme Court was constrained to nullify the provision of instant arrest for dowry related offences. Madhya Pradesh, which reported the maximum number of rapes, amended the Indian Penal Code to provide for a death sentence for rapists in aggravated cases. Common sense would suggest that the only way to deter rapists is to catch them and bring them to trial rather than provide for more punishment but make no additional efforts to catch them. Lord Macaulay, while drafting the Indian Penal Code, desisted from providing the death sentence for rapists because he reasoned that if punishment for rape and murder was the same, then rapists would also murder their victims.
Lack of such elementary logic frequently permeates the new enactments, which often flout the basic principle of law-making, specifically that laws should be lenient but enforcement should be strict.
The amount of thought or preparation required for a criminal enactment like the Indian Penal Code is totally missing in the new Acts. This 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 these new Acts, like the penal provisions in the Bihar Prohibition Act or the more stringent provisions of the Prevention of Money Laundering Act are often struck down by the Courts for their unconstitutionality. Also the large number of criminal cases filed under these new Acts damage our legal system because the sheer volume of these cases eat away precious judicial time leaving little time for really worthwhile cases. For example, 60 lakh cheque bounce cases are pending in our courts.
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 civil nature, there are a number of instances where the Government got 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 such a set-up.
In these circumstances, criminal cases multiply and the burden of investigating and prosecuting a large number of trivial cases makes the police force lose focus on more substantial ones. Our jails, which are already full, do not have the capacity to accommodate any more inmates. Our overburdened judicial system is not able to handle the additional burden created by the new enactments. Therefore, there is an overwhelming need not to criminalise ordinary acts and create any new categories of offences.
Given the surfeit of criminal enactments, ordinary citizens engaged in ordinary pursuits sometimes find that they have committed an act punishable by law. The anguish of a law abiding citizen suddenly discovering that he is a lawbreaker can easily be imagined. More than a Uniform Civil Code, a Pan-India Uniform Criminal Code is required for the benefit of the common man.
This Criminal Code would be an omnibus enactment, encapsulating the criminal provisions of all Central and State Acts so that a citizen would know exactly what the criminal law is and when he is transgressing the law. If all criminal laws are brought together, law makers would also have an opportunity to categorise offences and standardise the punishments provided, which would be an improvement over the haphazard way in which offences are being created and punishments are being prescribed. In the alternative, all of us would run the risk of being painted with the brush of criminality, for doing something which we consider perfectly ordinary.
(The writer is a retired Chief Commissioner of Income-Tax)