Ours is a deliberative and consultative democracy where a mere vote of approval is not the test of validity of enactments. The process requires both effective public consultation and due deliberation by the legislature before the enactment of laws. The method by which the new criminal law amendments have been brought about is at a wide distance from both the consultation and debate necessary.
The government has acted contrary to its own policy mandating pre-legislative scrutiny. It contemplates setting out the policy problem, making provision for supporting evidence and analysis, and considering the options and reasons for the choices. Not only has this policy been abandoned, but even the terms of reference of the committee initially engaged to consider the re-codification—at the time of the Covid shutdown—are not known, nor are the discussions purportedly undertaken by it in the public domain.
One example of the offhand approach of this committee is the shocking way in which it dealt with the offence of mob lynching. Despite being an aggravated form of murder, it was astoundingly made punishable with merely seven years of imprisonment. This shows a witless way of dealing with laws despite their effect on intergenerational policy. The shallowness of the committee’s work should have been an indication to exercise caution. Not only was there no restraint, but the standing committee to which the bills were referred completed its deliberations on three major enactments covering the entire universe of criminal law in barely two months; the legislations were passed merely by voice vote.
The basis for bringing about the changes is itself misconceived. It has been argued that India needed to be rid of “colonial baggage”. Yet, paradoxically, the very opacity of colonial rule that entails giving short shrift to elementary democratic requirements is patently manifest in the exercise undertaken. The existing system is undeserving of this obloquy—the finest principles of legal jurisprudence assuring Indians of substantive protection were actively enforced under the old laws to make the method of dealing qualitatively different from enforcement under the colonial rule.
Even the offence of sedition under the old law was different from how it was used by the British against freedom fighters such as Lokmanya Tilak—the Indian Supreme Court discarded the interpretation of the Privy Council and gave it a restrictive meaning. It is indeed strange that a government that was never shy of invoking the offence of sedition is now making a virtue of the provision’s deletion. This is utter hypocrisy, more so because the offence continues in the new code in a different avatar. It is now loosely expressed in violation of the basic principles behind the enactment of penal provisions, which mandate clarity in exposition and precision in objective.
It has to be remembered that the exercise undertaken in revising the laws is one of re-codification. Re-codification entails not merely reformatting of old laws but aligning them with developments over time to remove redundancy or conflict with the evolved understanding of law. This aspect of re-codification is present in a few instances such as the deletion of adultery and thuggery, the introduction of new offences of mob lynching and variants of hate speech, and the rendering of certain sections gender-neutral.
But the process collapses when dealing with political crime. Political crime directly affects human and civil rights. The concerns are both in the substantive law and procedural law. The latter, for example, permits a far-reaching intrusion into individual liberty by granting a more extensive and elastic discretion to detain an individual free of the checks on the abuse of this power, which were present in the so-called colonial laws. It now permits preliminary inquiry before registration of FIR, diluting the mandate on the police to immediately act on the information except in certain well-defined categories; the preliminary inquiry is now not limited to any defined situation as in the past, leaving it to the police to decide when and how it would be undertaken.
Similarly, under the substantive penal law, a person can be detained for not obeying the instructions of police. There is also a provision for preventive detention enlarging upon the factors justifying this patently unjustified exercise of state power.
The substituted version of the offence of sedition has an indeterminate test of “feelings of separatist activities” without providing any defined standard for attracting this element. In incorporating the offence of “terrorism”, the very basis of distinction of the offence (dealing with “security of state”) from ordinary penal offences (dealing with “law and order”, and hence of less gravity) has been obliterated; no indication of the circumstances in which the choice would be exercised has been given. The absence of guidelines is made more glaring because the safeguards available under the special statute are absent in the ordinary law despite the offence being identically worded in both. There is, in fact, duplication of offences which is nothing but over-criminalisation.
The amended criminal laws are an instance of re-codification being used for purposes it was not meant. The steps do not entail an advance from the past, nor an evolution which is conducive and good; there is a retreat from spaces of reform where the existing jurisprudence aligned with an enlightened understanding of the legal process.
To be resolute without reflection can only lead to calamity and catastrophe. This warning is even more relevant when the motivation is to alter a settled application of law. Law is no plaything in the hands of a political establishment, and is not to be fiddled with except for good cause. It is unfortunate that this is not the way we have proceeded to bring about this re-codification.
(Views are personal)
Aman Lekhi, Senior advocate to the Supreme Court and former Additional Solicitor General