The government should not only propose the changes but also establish intimately related mechanisms to facilitate effective implementation
Prime Minister Narendra Modi has promised the nation to unblock the stalled foreign investment by bringing the much needed and awaited reforms. There are many economic and legal reforms, which require the immediate attention of the government. Surabhi Agarwal identifies certain areas in which the examination, in the certain existing laws & advocacy and immediate implementation of changes in the system with the aim of enhancing the right justice and efficiency, is required to be brought by the new government.
Lex Witness hopes that the Law Minister will carry out research and will recommend ways to simplify the much debated law reforms to suit the changing globalisation.
India needs change, and how! … Law reforms that confront the new government:
“There are three classes of men…” said Johann Kaspar Lavater, an 18th Century Swiss poet and physiognomist, “…the retrograde, the stationary and the progressive.” Prime Minister Narendra Modi seems firmly resolved to snuggle into the last of the three categories of men defined by Lavater, reassuring the country repeatedly of his government’s ‘progressive mindset’ and reformist agenda.
No one would deny that progress and change, or rather, drastic change, is what India is desperately in need. Law in any event, isn’t “carved in stone as much as it is written in water, flowing in and out with the tide”. Like a government, law needs to be stable, but it must never stand still.
“Where you find the laws most numerous, there you will find also the greatest injustice,” said Greek philosopher Arcesilaus, sixth head of Plato’s Academy. India is one of the few countries with the most proliferous legislative regimes. Before thinking of any further creation ormodification of substantive laws, what stares the new government in the face today is immediate implementation of measures to ensure the Indian justice system becomes effective and efficient. Thus, drastic improvement in the administration of justice, primarily judicial and police reforms, must take top priority for the new government before any ‘comprehensive review’ of substantive law is undertaken.
The new government’s manifesto promises all this and more “doubling the number of courts and judges” and “reforming the legal system to make it more accessible to the common man.” And if this wasn’t an ambitious wish list, the manifesto also talks about “empowering lawyers” and “developing India into a global hub for arbitration and legal process outsourcing.”
The agenda is nothing new; we heard it when the previous government announced its ‘blueprint for legal reforms’ and floated the ‘National Mission for Delivery of Justice and Legal Reform[2009-2012]complete with a “National Litigation Policy” crafted after several rounds of discussion with the who’s who of the legal world, eminent jurists and Supreme Court judges. Some work was indeed done under the mission including electronisation of a few courts; however, things stopped way short of full implementation. Interestingly, the BJP manifesto appears to have a borrowed from the same judicial reform agenda and even promises to implement the “National Litigation Policy in letter and spirit.”
While the agenda may not be new and indeed it needn’t be, if all promised measures are implemented with speed and effectiveness, it would serve the legal system extremely well.
While a developing country such as India does need to protect labour from exploitation, what the country’s labour laws have failed to achieve is a pragmatic balance between the competing interests of industry and labour. Chapter V-B of the Indian Industrial Disputes Act, for instance, was brought into being through a treaty signed under the auspices of the ILO [International Labour Organisation]; most other economies do not have similar provisions in their laws. In India, a corporate needs government permissions for closing down its business; permissions are hard to come by and more often than not financial hardship is not considered sufficient ground for such permissions. This is nothing short of bizarre. A pragmatic balance can indeed be achieved, for instance, by doing away with the various government permissions that are required to be taken under the Act by industry for closure of an undertaking or for lay off or for retrenchment and by increasing the compensation payable to the workmen, making such compensation fully commensurate with the number of years’ service rendered.
The obvious area, due to the various incidents happened in the recent past, which requires the reforms, is the punishment for “sexual assault”. Sexual assault can be rape, non-consensual gay sex, or the sexual advances against the women.
Even though the amendment was brought in the criminal law on the recommendation of J.S.Verma committee, there are more leftover areas in the sexual assault on women. The ordinance for the Criminal Law Amendment, which finally took the form of Bill and received the Hon’ble President’s assent, was strongly criticized by many activists for not addressing the issues like marital rape, reduction of age of consent, amending Armed Forces (Special Powers) Act so that no sanction is needed for prosecuting an armed force personnel accused of a crime against woman.
The Amendment of 2013 has expanded and brought changes in the definition of rape under IPC and was extended to include acts in addition to vaginal penetration. The definition has also clarified that penetration means “penetration to any extent”, and lack of physical resistance is immaterial for constituting an offence.
However, the important reform, which the amendment has not brought, is the punishment for rape. The punishment remains same (seven years to life) regardless of the gravity of the crime committed. Except in certain aggravated situations, the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.
By looking at the definition of rape, penetration to any extent regardless physical resistance, the punishment should have been in the graded form. The accused, who has committed the full blown rape and the one who has not done beyond the initial touching of the private parts, but withdrawn from the crime before the victim resists, cannot be meted out with same punishment.
The reform with regard to gay sex is required in the modern society. The section 377 IPC should apply only to non consensual gay sex. In view of the recent Supreme Court judgement, wherein the Apex Court suggested for legislative intervention to get rid of the old obsolete notion that “carnal intercourse is against the nature” should be replaced and individual choice should be valued above the obsolete laws.
“It’s about time law enforcement got as organised as organised crime” Rudy Giuliani, American lawyer and former Mayor of New York city, was quoted as having declared to the Time Magazine in 1984. Indian legal system in any case is often, and not incorrectly, accused of overregulated and under enforced. What is the use of proliferation of laws, unless supported by a prompt and efficient enforcement mechanism? And what is the use of any discussion on the law reforms India needs, unless the focus shifts to enforcement of the laws that we already have?
Invariably, before elections, every party manifesto carries “Police Reforms” as one of the top priorities and this year was no exception. India, however, has known the need of police reforms since more than three decades. It is ironic, nay, almost tragic, that after decades of discussion and a plethora of recommendations by various government committees and commissions including the National Police Commission, which produced numerous reports and also a Model Police Act, none of the governments implemented the recommendations; leading to two former Director Generals of police filing a Public Interest Litigation (PIL) in the Supreme Court in 1996! After a decade long battle, the Supreme Court finally, in 2006, ordered that reform must take place and directed states and union territories to comply with seven binding directives to kick start police reform. The Court required immediate implementation of its orders either through executive orders or new police legislation. These reforms included several measures (including creation of three new authorities)to prevent political interference in the police and to ensure accountability of the police and also separation of the investigative and patrolling functions of the police.
Based on the Model Police Bill, some of the states enacted new Police Acts. However, very little was done on the ground to improve policing or to implement the recommendations of the Court. In October 2012, a three-judge-bench of Supreme Court asked all state governments and Union Territories on compliance of its September 2006 judgment. After repeated questioning by the judges of the Supreme Court and many High Courts, the state governments are believed to have finally started to reform the police forces and givethem the operational independence they need for fearless and proper law enforcement.
In this background, the BJP manifesto’s claim of rolling out a “comprehensive strategy for bringing the Indian police at par with international standards” and also “strengthening investigations, making them swift, transparent, fair, clear and decisive – acting as an inescapable deterrent to wrong- doers and a protective shield to the innocent” sounds lofty. It will be interesting to see what the new government will do to bring about the much needed change in the country’s law enforcement levels.
In his book “India’s legal system: can it be saved?” eminent jurist, Fali S. Nariman has summarised the following reforms, which he believes the Indian legal system needs:
Way back in the 1st century AD, Gaius Petronius , a Roman courtier and reputed author of the Latin work ‘Satyricon’ (literary portrait of Roman society of the 1st century) asked, “What power law has where only money rules?”
No discussion of law reforms in India can be complete without one on corruption which is the mother of all ills. ‘The Economist’ recently ran an article stating that only about 3 per cent of the Indian population pays taxes. Shocking statistics to the sophisticated international reader! However, consider this in the background of the complete absence of faith the Indian citizen has that his hard earned money willbe put to any good use by the government. Everything then boils down to eradication of corruption in the end. The message from the public is loud and clear – the Indian citizen is fed up of corruption and a clean government is what they demand.
The legal regime surrounding corruption in India is another instance of over regulation and under enforcement. We have at least ten bills pending before the Parliament intended to strengthen anti-corruption laws. Many have resulted from international pressure (India ratified the UN Convention against corruption in 2011, resulting in a demand for laws coveringprivate bribery, foreign public officials bribery, strengthening the law against ‘supply’ side of corruption etc.) and the rest are a result of public pressure / anticorruption movement.
It isn’t as though the Indian legal framework in the state it is today, yet it is insufficient to deal with the menace of corruption; the difficulty is in the lack of enforcement of the laws that already exist. What we need is enforcement and good governance. The new government’s manifesto promises to eradicate corruption through “good governance”, mere words until things change.
The purpose of law is establishing justice and when laws fail in this purpose they become, in the words of Martin Luther King, Jr., “dangerously structured dams that block the flow of social progress.” Leading economists as well as the legal and international community alike have repeatedly stressed the strong need for India to overhaul its archaic labour law regime, which is seen to hinder economic progress and consequently job creation.
While the new government in its manifesto makes no serious mention of this, importantly, it does promise to ensure that the interests of labour in the unorganised sector will be protected. Since over 94 per cent of India’s working population is partof the unorganised sector, it is important that unorganised labour is brought within the ambit of social security laws, such as providing the labour in this sector access to ESI hospitals, ensuring payment of minimum wages and retirement benefits in order to prevent their exploitation.
Tax reform, they say, is about taking taxes off things that have been taxed in the past and putting taxes on things that haven’t been taxed before! As Grover Norquist, President of American for Tax Reforms rued humorously, “They tax when you earn a dollar, they tax you when you save it and they tax you when you invest it. If you earn a dividend, they tax it again, and if you’re stupid enough to die, they steal up to half!”
The expectations from the new government, especially since they had reproached the previous one of ‘tax terrorism,’ are that they will ensure a simpler, more transparent and predictable tax regime in India, such that foreign investment in the country is not discouraged. The expectation is also that the government will speed up implementation of the country’s ambitious direct and indirect tax law reforms (GSTand the DTC), which have promised much needed simplicity and uniformity in the country’s tax regime.
Of course, the wish list for reforms is endless. India equally badly needs land reforms, which can achieve a balance between the needs of the industry and land owners alike. The new government has promised to work around the new Land Acquisition Act, touted to set back industrialisation by making land acquisition for infrastructure projects very expensive, by focusing on non-cultivable land acquisition. The need of the day is a rational use of the country’s land resources in a way that balances its competing agrarian, industrial and commercial needs. The new government has promised a National Land Use Policy to rationalise land use.
Hate speeches are a common phenomenon in the democratic world. The recent concluded election has witnessed the unfortunate incident – a congress candidate’s speech against the present Prime Minister. In the past too, vested interests have been used to stir up the religious, political and cultural diversity whenever it suits the politicians or antisocial elements.
Old provision like Sections 124 A IPC and Section 295 A IPC and Section 153 A IPC enacted under the colonial rule should be looked into in such a way that the usage of those section will be dealt with due care; freedom of speech should be given importance. Such provisions will lead to the misuse by the politicians to avenge their enmity against each other.
Nevertheless, one can only hope against hope and look forward to a better India in the years to come.
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