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Wednesday, May 25, 2022

National Interest: Lawlipop politics

From corruption to rape,UPA's basic instinct is suspect: better legislate than deliver

Written by Shekhar Gupta |
March 16, 2013 12:47:38 am

As you watch this government flailing over the Criminal Law (Amendment) Bill,all you can say is it should have known what was coming. Ever since the rise of Anna Hazare,the UPA has embraced the idea of drafting serious laws at the point of a gun. Sometimes it is given deadlines by others,notably Anna Hazare,and now it set a deadline for itself. Shocked and awed,and most importantly,embarrassed over its own incompetence in dealing with the aftermath of the Delhi gangrape,it first set up a committee under retired Justice J.S. Verma to suggest a new draft law in 30 days. And when he did submit that draft,in fact,a day short of the deadline,it promulgated an ordinance after making some arbitrary,hurried changes. We know human beings can do the most incredibly stupid things in panic. But you would have expected that a government consisting of so many thick-skinned political veterans would have at least used the submission of that report to buy some time,to circulate it for wider discussion — a bit wider than in that weekend’s TV talk shows — and waited for the Parliament session less than a month away. With the ordinance,it set a deadline for itself: it either passes the law in Parliament now,or the ordinance lapses,and brings back the combined wrath of news TV and activists.

Hence,pass this law now,howsoever imperfect,hasty and un-debated. Howsoever strong the disagreements on it within your own cabinet (a welcome rarity in a cabinet where two-thirds mostly yawn and doze through their routine Thursday meetings). But why the hurry,nobody asked. Who promulgates overnight ordinances like this on what is,after all,a new criminal law? It is not as if a war was on and you needed to amend the Defence of India Rules to plug some dangerous loophole. In any case,a new law would not have applied to a crime that had already taken place. And really,and I know it is risky to raise such questions in these times,do you really think the horrible nut-cases who brutalised that young woman on the night of December 16 would have had second thoughts if such a law had existed?

Maybe the government was taken by surprise yet again. It may not have expected Justice Verma to break rank with so many of his fellow retired judges heading commissions,inquiries and committees,who have about as much respect for deadlines as the Indian railways do for arrival and departure timings. Once he delivered the report,somebody said,oh,so what next? For sure,the redoubtable Justice Verma,who had given us that brilliant sexual harassment verdict,had not threatened to go on hunger strike if the draft did not become law by Holi. Today,the government is talking of splicing and splitting that law,leaving out some contentious clauses,calling an all-party meeting and so on. Wasn’t the time to do all this when the draft was submitted? Shouldn’t a far-reaching law like this be examined by parliamentary committees? Now you need to request Justice Verma to hold another time-bound inquiry: into what or who was it that persuaded the UPA to jump the gun like this.

This is a very serious law. And it is littered with issues that still remain gravely contentious: age of consent,quantum of punishment,burden of evidence,very delicate definitions on voyeurism,stalking,harassment. All these are very important issues and must be addressed,of course. But these must be debated over time,rather than be legislated on at the point of a gun and left for future generations to cleanse. It is widely acknowledged that a hard case makes for a bad law. Which is exactly what is happening now. This law is several issues,laws,laments and,frankly,prejudices and ideologies,rolled into one. And it is now going to be passed with a deadline imposed by that panicky ordinance.

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Offering a legislation in place of a political response to a crisis is the classic symptom of weak governance. We are expected now to buy the argument that just the passing of this complex and hasty law will make India a better place for women,while it will still be implemented by a system of governance so lousy it cannot even prevent one of the key accused in a case that has the world rivetted,and which is the raison d’etre of this new law,from committing suicide in jail. You can try selling us something else. In the absence of police and judicial reform,and the fine-tuning of its clauses after a wider,patient,open-ended debate (some in the ordinance read like a crudely written page from an anatomy textbook),this law will have the effect of setting up thousands of ATMs across the country: at least one in each police station. It may or may not protect vulnerable women,but it will surely empower corrupt policemen.

But don’t tell the UPA this. Wait for Pranab Mukherjee’s memoirs and he may,he just may decide to share with you the fury and frustration he controlled while dealing with Anna Hazare and his committee of wise and impatient men as they sat down to draft the Lokpal bill against a deadline. In one of the earliest meetings,he firmly told Team Anna that a law resembling their draft would need India’s Constitution to be rewritten. And when a member of Team Anna said that that indeed was the idea,Pranab simply said he did not quite have the mandate to do so,and if Team Anna wanted it,they had to go to the people and get it. But a ridiculous,hurried and impractical draft of some sort was created,it is still floating in the legislative system,and has fortunately been prevented from being passed in a hurry.

Political classes around the world know the art of throwing lollipops to fool and calm down people angry with their inability to govern. In the UPA’s dictionary,you can spell lollipop as “lawlipop”. It cannot address rural distress,so you have a law for employment guarantee. It cannot provide food for the hungry while the granaries are full,so you will be given a right to food law. Go eat that law if a corrupt political-bureaucratic-contractor nexus steals your grain. Now there will be a homestead law,and then,maybe a right to better nourishment act,and why stop there? A right to iron and folic acid law and,surely,a right to Vitamin D,since,as an eminent nominated member has already informed the Rajya Sabha,we Indians are widely deficient in the sunshine vitamin. You may find this facetious,but if you look at the record of the UPA and our Parliament in general,all ridiculous,unimplementable or sheer bad laws like these pass without debate. Nobody wants to be on the “other” side of a populist bad law.

Civilised,mature democracies demand,and deserve,better governance. They do not enact bad laws in a hurry. It is easy to enact them,but it takes generations to rectify them. Remember,some of our lousiest economic laws that still bedevil our reform process,from killer amendments to labour laws to urban land ceiling were enacted by Indira Gandhi’s utterly illegal and unconstitutional Emergency Parliament in its sixth year (a six-year Parliament,the only time such a monstrosity has been inflicted on this republic). It has taken three willing Parliaments to repeal urban land ceiling,but several states still hang on to it. Politicians love bad laws that bring discretion and rent. And only bad Parliaments pass laws in a hurry. Note one fact: the record for the largest number of laws passed in a year,118,is with the same sixth-year banana republic Parliament of 1976,when the entire opposition was in jail. Even the words “secular” and “socialist” were inserted in the preamble of our Constitution by the same illegitimate Parliament,and it is unlikely even the next generation will be able to restore the founding fathers’ preamble.

It is a digression,but maybe it isn’t,to recall the Constituent Assembly debates on precisely this issue. And then Ambedkar’s brilliant explanation for dismissing these demands. The economic and social policies of the state,he said,“must be decided by people themselves according to time and circumstances”. He added: “It cannot be laid down in the Constitution itself,because that is destroying democracy altogether… you are (then) taking away the liberty of the people (in future) to decide what should be the social organisation in which they wish to live.” He said,while at that point a majority believed in socialism,in times to come,“it is perfectly possible” that they might “devise a (better system) than the socialist organisation of today or tomorrow.” This reading will tell you how brilliantly liberal and politically prescient the founding fathers were. They established and gifted us a tradition of patient and thoughtful law-making. We are now reducing it to a cynical,save-my-skin joke on our future generations.

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