Hindustan Times ST (Jaipur)

Law and justice: Where the Indian elite can’t secede


It is extremely important that the Supreme Court (SC) is re-examining colonial era sedition laws, which were repealed in the United Kingdom (UK) itself, but which no government in India has revoked, and in fact, each has used to stifle dissent.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 kinds 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.

For example, did you even know that you could get arrested if you did not walk your dog properly? The maximum sentence is three months. Did you realise that flying a kite with banned thread can get you locked 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, 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 of these 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 implemente­d strictly. 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 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 here have actually resulted in arrests.

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 isn’t 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 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 apex 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 lawmakers, 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, health care, transport, or energy. Pollution and the pandemic awakened us to the rude reality that we cannot secede from bad air and dangerous germs. Well, we cannot secede from bad laws either.

 ?? SHUTTERSTO­CK ?? Research shows that imprisonme­nt under harsh conditions often results in a greater rate of more violent recidivism
SHUTTERSTO­CK Research shows that imprisonme­nt under harsh conditions often results in a greater rate of more violent recidivism

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