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Laws and criminal justice: Where the Indian elite can’t secede

It is extremely important that the Supreme Court is re-examining colonial era sedition laws, which were repealed in the United Kingdom (UK) itself, but which no government in India has revoked, and in fact, each has used to stifle dissent
By Rohini Nilekani
UPDATED ON JUN 09, 2021 05:02 PM IST

It is extremely important that the Supreme Court is re-examining colonial era sedition laws, which were repealed in the United Kingdom (UK) itself, but which no government in India has revoked, and in fact, each has used to stifle dissent. Sedition laws, however, are at the apex of a mountain of laws that need to be examined with fresh societal eyes.

Most of us believe we are good, law-abiding citizens. We have faith that laws are made with the highest public and private good in mind. We try to obey all the laws that we know of. By doing so, we participate in a society that is justly governed by the rule of law. We don’t worry much about going to jail or about the state of our prisons. We cannot imagine anything we do that could land us behind bars. And if we got caught by mistake, surely there would be a way around the problem? Jail is for others.

Is it time to revisit all these assumptions?

Many of our laws, when examined even cursorily, do not appear to propose punishments or jail sentences proportionate to the crime. Many also shift the burden of public order from the State and its apparatus to the individual citizen and his actions. These kind of laws can turn ordinary citizens into criminals with one deadly strike. Sadly, many have been passed without any legislative debate. Nor has there been widespread public discourse on things that should keep us all awake at night.

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For example, did you even know that you could get arrested if you did not properly walk your dog? The maximum sentence is three months. Did you realise that flying a kite with banned thread can lock you up for two years? That driving an uninsured vehicle could get you three months in jail?

These are just a few examples. Yet, most citizens have found it difficult to apply themselves to issues of law-making or criminal justice.

Apart from all the harsh, even draconian, laws that have been around for decades and even centuries, there have been new laws and rules that give sweeping powers to the State. Mercifully, there has been a lively public debate on recent laws around free speech and privacy. In one such victory, Section 66A of the IT Act was struck down as unconstitutional. Other regressive speech laws still exist, but partly because of the ubiquitous use of social media, more citizens are realising the chilling effect on their lives.

Let’s take another recent example. The government invoked the Disaster Management Act of 2005, for the proper management of the pandemic. But some of the rules pertaining to Covid-19 could potentially make millions of citizens susceptible to sentencing, if they were to be strictly implemented. The spreading of fake news about Covid -19, including forwarding WhatsApp messages which are later found false, could attract up to a year in prison. Technically, not wearing compulsory face masks, without reasonable cause, could also put you in jail for up to one year.

Some of these laws are simply unimplementable or may not be on the radar of the officers of the State, who have the powers to make arrests under them.

But the point is that they are still on the books. And circumstances could turn in a way that someone could get into more trouble than is warranted by an unintentional infringement. All the laws I mention above have actually resulted in arrests.

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Should such laws with such disproportionate punishment even exist? Should they be better understood before they are passed? Do they even serve the purpose and intent with which they are framed – usually public order and safety?

There is not enough evidence to show that severe punishment acts as the deterrent it is meant to be. Research shows that imprisonment under harsh conditions often results in a greater rate of more violent recidivism. On the other hand, there is encouraging data emerging from restorative justice systems, including the open jails in India. Can we use such evidence to re-imagine our retributive justice system to be more just, more humane and more effective at reducing crime?

So far, we, the elite, have not participated in serious public discourse on law-making and prison reform. The series of lockdowns caused many of us to experience a pale yet frightening imitation of what an actual incarceration might feel like.

Is this an opportunity for society, samaaj, to participate more vigorously in debating laws that criminalise too easily? And from there, to become more involved in the broader issues of criminal justice, including the human rights infringements in our overcrowded prisons, with 70% of inmates being potentially innocent undertrials?

The Supreme Court has now turned the spotlight on sedition. The pandemic has thrown light on the Disaster Management Act. It’s time for deeper conversations with parliamentarians and state legislators — our law makers, on how better laws can lead to a better society. In the case of Section 66A of the IT Act, such a dialogue led to its annulment.

India’s elite has managed to secede from every common public service — be it education, healthcare, transport, or energy. Pollution and the pandemic awakened us to the rude reality that we cannot secede from bad air and bad germs. Well, we cannot secede from bad laws either.

Rohini Nilekani is chairperson, Arghyam

The views expressed are personal

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