Tag Archives: legislation

Part II: Laws that make you insecure

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Today, the country has so many laws that it makes the citizen insecure. The provisions in the penal law are so many that a police officer can easily book you even if you are not a criminal. Ordinary behaviour can easily invite provisions of the criminal law if someone is bent on booking you.

It was only recently that a Mumbai girl was booked under Section 66A of the Information Technology for an indirect criticism of Bal Thackeray on the Facefbook page. To top it, a friend of hers who liked the post was also booked under the law.  (Intolerance is growing to such levels that you cannot criticise Mahatma Gandhi, Ambedkar or Indira Gandhi. Films like Papilio Buddha  and Midnight’s Children  faced protests and censure because they criticised Mahatama Gandhi and Indira Gandhi respectively. This was despite the fact that all these people were politicians and Thackeray had only passed away the previous day.) Sedition charges had been foisted against fishermen agitating against Kudamkulam nuclear project in Kanyakumari district and the Kanpur-based cartoonist Aseem Trivedi who criticised the establishment. A doctor and human rights activist Binayak Sen faced sedition charges because he sympathized with the naxalites. Official Secrets Act and other laws had been misused to stop exposition of corruption and other misdeeds. These bode ill for India’s democracy.

Now, there is a hue and cry that capital sentence should be awarded to rapists after the rape on a bus in the capital city. The brutality of the offence is in no doubt. However, it has enough laws to deal with such crimes and they suffice. Politicians make demands like death sentence to get the people on their side when public anger is at its highest. However, amendment to criminal laws are something to be contemplated with due diligence. Rape is a crime in which innocents too could be easily implicated. Besides, the onus of proof is on the accused. So, it would be unwise to increase the penalty for the crime.

When incidents of brutal attacks occur, various other provisions of the penal code will naturally be applied. When a girl was thrown out of the train, raped and killed near Shornur in Kerala some months back, the accused faced murder charges. The Delhi incident would attract the charge of causing severe hurt if not attempt to murder.

Besides, social factors and realities have to be taken into consideration and addressed while trying to contain increasing number of such crimes. While the people in the country are getting increasingly exposed to Western culture and media, we do little to foster healthy relationships between men and women. A lot of hypocrisy exists in the country when it comes to sexual mores. Behaviour is tightly controlled on one side while worst behaviour becomes the norm when control is absent. In Kerala, there are separate seats for men and women on bus, but harassment of women is possibly the highest in crowded buses of Kerala. It may be worth noting that incest may grow when prostitution is tightly controlled. So, social interventions are the need of the hour rather increasing the penalties for sexual offences.

State with laws that provide for severe punishments for even minor offenses usually lets the rich and powerful to escape and brutalises the poor and powerless. The statue book now has so many laws that none could hope of knowing all, and ignorance of law is no excuse. Given the ground realities, it is impossible for a citizen to live in this country without breaking the law or giving bribes. (Giving bribes is also an offence). Some laws like prohibition of photography of dam and buildings are ridiculous. There are many laws in the statute book that are no more required. However, they remain. A recommendation to delete around 100 such laws in Kerala six years ago is still awaiting action.

Laws should be devised in such a fashion that it should make sense for the ordinary citizen to obey them rather than break them. Would the majority abide by the law, or is it logical to have a law in certain areas should be the consideration before the law makers. Making laws that would be broken by the majority will only destroy respect for law. Currently, it is impossible to be totally law-abiding in India, and this diminishes respect for law.

Part I: Tightening laws to hide failure in their enforcement

Tightening laws to hide failure in their enforcement– Part I

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The Kerala government has been resorting to new legislation with stringent provisions just to hide its failure in enforcement of the laws and administration of justice.

It brought the Antisocial Activities (Prevention) Act, popularly known as the Goonda Act, as public protest grew over activities of goondas and quotation gangs in the State. The Act provides  for preventive detention of goondas— that is imprisonment without trial, amounting to violation of human rights.

Administration of Justice

Image courtesy: digitalart/FreeDigitalPhotos.net

The question whether such Act was required is debatable. Most of the goondas against whom public ire was growing had dozens of cases against them. Yet, they were getting bail and committing fresh crimes. The prosecution was repeatedly failing to get convictions. This was because of the protection the goondas were getting from politicians and officials. The law was brought to hoodwink the public.

Naturally, it failed to check the goonda menace, as the political and official patronage of goondas continued. Since public protests grew over operation of quotation gangs, the government proposed tightening of the law. The period of preventive detection was extended from six months to one year. So, the government is having a brief reprieve.

The government brought a law to take over ecologically fragile lands after it failed conduct forest cases properly in courts. Most of the land in question could have been retained by the government under existing laws, if the government would have fought the cases properly in courts. Several cases were won by plaintiffs by producing forged documents which went unchallenged during trial. The law was later diluted since complaints grew over its use.

When the Land Utilisation Order failed to check conversion of paddy fields, the government replaced the order with legislation to protect paddy fields and wet lands. However, the law did not yield any results, as it could not be implemented effectively. The politicians themselves worked to grant exemptions and protect those converting paddy fields. In fact, the issue was one that could have been addressed better by eliminating the economic reasons for conversion of paddy fields. Similar is the case with law for protection of rivers where laws alone is not the answer. The government would have done better by taking measures to improve the availability of sand and taking the lucre away from sand mining. Pollution could have been tackled through existing laws.

Recently, it brought legislation to check charging of excessive interest rates by money lenders. This was done against the background of suicides by farmers and others because of indebtedness. This was when the enforcement of existing money lenders Act was lackadaisical. Though it is four months since the Ordinance was promulgated, no action had been against any money lender  while many borrowers continue to struggle.

When the government and local self governments failed to set up proper facilities for treatment of waste, it brought legislation recently mandating processing of waste at source. Several of its provisions are difficult to enforce, simply because of the difficulty in setting up processing units at every establishment and home. Governments and local bodies fail to come up with solutions despite brave words. Chief Minister Oommen Chandy, for example, had promised to solve the problem in six months. But, it is one year now. After six months, he turned to the legislative solution.

What the tightened laws often achieve is only increase in the level of corrupt
Part II: Laws that make you insecure

Preventive detection, rule of law and human rights

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The government is planning to amend the Anti-social Activities (Prevention) Act to enhance period for preventive detention of goondas from six months to one year. This is a measure intended to douse public anger over the free reign of quotation gangs and political murders. It does not address the real issue.

The real issue is that the conviction rate of goondas is not very high and that they manage to get bail and paroles easily. This happens because of their liaison with politicians and police officials.  Kodi Suni, who is accused in the T. P. Chandrasekharan murder case, for example, is accused in more than two dozen criminal cases. How come people like him could freely roam around and engage in criminal activities including murders.  This is not because we did not have stringent laws. Note the trouble the Italian marines had in getting bail and the conditions attached to the bail.  In case of hardened criminals, the bail conditions will be stringent. They manage to undermine the system because of the assistance they are getting from politicians and police officials.

What the government is trying now to hoodwink the public into thinking that the government is acting against the quotation gangs and criminals. But what the law will achieve is to help the administration to hold goondas in jail for a little longer, that is, till the public anger would subside. They would be out of jail after another six months as the cases against them may not lead to convictions. Given the condition of jail administration, they would also be able to plan criminal activities including murders from within jail. If at all they are convicted, governments would release them from jail after some years.  Even an accused in despicable murders like that of K. T. Jayakrishnan had been released after eight years while several others who participated in the murder had not been arrested.

On the other hand, the Act has the potential to be misused.  Measures like preventive detection itself are a human rights violation in most circumstances. When preventive detections become routine, one cannot say it the rule of the law.

Proscribing adolescent sex by law

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If I recall correctly, it was Erskin May who had said something like that no law could be enforced that the majority is unwilling to obey.

To some extent, the Protection of Children from Sexual Offences Bill 2011, passed by the Indian Parliament, falls into this category. The Bill seeks to make even consensual sexual contact with a girl under 18 a criminal offence. This law is proposed to be enforced when 30 per cent of the girls in India aged between 15 and 19 are married off. According to a report of a survey conducted by UNICEF between 2000-2010, 22 to 24 per cent of women in India became mothers before attaining adulthood. About eight per cent of the adolescents had sex before the age of 15.

The law is proposing to proscribe all this. How effectively this can be done is a moot question. However, the more serious implication of the law is that it seeks to make sex between consenting adolescents a crime. Young boys could be hauled up for having a consensual sex with their girl friends. This can often turn into police officials terrorizing boys dating or even talking to a girl, given the nature of law enforcement authorities in the country. The girl too could be under risk under such situations.  It could also lead to corruption rather than protection of girls, as the punishment could be jail for three years or more. Even eve teasing that could be termed as sexual harassment and would attract up to three years of jail.

The Bill seeks to make sexual offences against girls by those in authority an aggravated crime attracting longer terms of imprisonment. This is a welcome measure. The law should also discriminate between those committing organised crimes against girls or men aged above 21 exploiting girls and consensual teen age or adolescent sex. Actions resulting from the love or even lust by adolescents should not be penalised. What are needed here is guidance and sex education and not a law proscribing sex.

Details of the Bill