The Congress party manifesto for the 2019 general elections promises an overhaul of criminal laws that affect human rights. These promises echo long-standing demands by legal practitioners, activists, and civil society to ensure the criminal justice system is in resonance with our Constitutional values.
There are three major promises. The first category are the essential ones such as making bail the rule and jail the exception, mandatory release of undertrials on completion of minimum time and comprehensive prison reforms.
The second, are the long overdue ones such as discarding the laws on sedition and criminal defamation and amending certain others. While the third are ambitious promises such as restrictions on the powers of special investigation agencies to prevent abuse.
At face value, this is welcome prioritisation of the criminal justice system that is desperately and unquestionably in need of reform. However, it’s worth recalling the Congress’s own role in passing some of these laws, which have been misused by successive governments, and their staunch resistance to their repeal or reform over the years.
While the present NDA government has taken misuse of laws and agencies to unprecedented levels, past Congress governments bear responsibility for laying the groundwork. The manifesto does not show any self-reflection regarding its own role. We also do not know the nature of assessment that led the party to these promises, or whether there is unanimous opinion on them within the party. Thus, their critical examination is essential.
POTA Becomes UAPA
In 2004, the United Progressive Alliance (UPA) government (headed by the Congress party) expressed concern at the gross misuse of Prevention of Terrorism Act (POTA) and promised to repeal the draconian law. On coming to power, the UPA re-introduced and in fact worsened the repressive provisions that had existed in POTA by making amendments to the Unlawful Activities Prevention Act (UAPA).
Since then, the UAPA has been used by governments across the political spectrum, especially BJP governments, to file false cases against critics and ideological opponents. One recent example is the Bhima-Koregaon case, where UAPA charges were egregiously invoked against lawyers and activists by the Pune Police. So while the manifestos’ promises of reform should not be dismissed out rightly, they must be seen in the context of this deception.
The Congress’s laudable promise to “omit” the colonial offence of sedition because of misuse and redundancy, glosses over hard truths. Its misuse began with Congress governments immediately after independence and has continued unabated. The recent most famous instance was of cartoonist Aseem Trivedi.
Misuse of laws by governments is neither limited to sedition nor a thing of the past, and the Congress is no exception to this. The recent invocation of National Security Act charges against three people for allegedly slaughtering cows by the newly elected Congress government in Madhya Pradesh is a case in point. Or as noted recently by the Delhi High Court, the arrest and terrorism charges under the dreaded Terrorist and Disruptive Activities Act, against the widows who accused Sajjan Kumar of participating in the 1984 anti-Sikh riots.
In this light, are the Congress’s promises an attempt at redemption? And if voted to power, will the party be able to stem its own instinct to repress the people through misuse of laws? One hopes so.
The redundancy aspect of sedition is also of the Congress’s own making. In 2004, mere months after coming to power, the UPA government amended the UAPA. This amendment redefined the offence of “unlawful activity” and criminalised actions and words that cause disaffection against India, similar to the offence of sedition. So, this promise does little beyond dropping the use of the word ‘sedition’. The offence would still exist (under a different name), the punishment would still exist, but it would become impossibly hard for accused persons to get bail, because UAPA requires them to virtually prove their innocence in order to get bail.
NIA, ED, CBI
One of the boldest promises in the manifesto, is to check the powers of specialised investigating agencies, restricting them to Constitutional and legal limits, thus bringing them at par with the police. There is a crying need for accountability of these agencies, vested as they are with excessive powers, far beyond those provided to the police.
For example, under the Prevention of Money Laundering Act, there is no burden on the Enforcement Directorate (ED) to prove the allegations against the accused beyond reasonable doubt, a basic and established principle in criminal law. Instead, the charged accused is presumed to be guilty, unless s/he can disprove it. A similar power has been given to the National Investigation Agency (NIA) under the UAPA. Some of these powers collide head on with the fundamental rights provided under the Constitution and limiting them, or at the very least, a check on the agencies that exercise them, is immediately required.
There are several recent instances of these agencies working to shield or target persons based on their political affiliations. For instance, consider the NIA’s strangely botched up investigation where in the judge’s own words, the “best evidence” in the case against former Rashtriya Swayamsevak Sangh member Swami Aseemanand, for the Samjhauta train bombings, was withheld for unknown reasons.
Similarly, the ED’s investigations against opposition politicians, as well of organisations critical of the government, such as Amnesty and Greenpeace, are aimed at silencing that criticism. So the Congress needs to be reminded of its own role in granting them excessive powers, which has enabled their systematic and routine misuse, especially by the present NDA government, ironically against the Congress as well.
The BJP Manifesto
In contrast, the BJP manifesto has nothing meaningful to offer, and does not even identify any specific pressing issues in our criminal justice system. Nor is there any emphasis on correcting the misuse of laws. None of this is surprising, given that the current government has relied heavily on abuse of laws and agencies to cement its own power.
The only issue that is given any recognition, is police reforms. There is a generally worded proposal for modernization of police forces to make them more adept at dealing with cyber-crimes and more sensitive to citizens. No doubt, these are valid goals, but political parties routinely put out such general promises, without providing any specific roadmap to achieving them, making it harder to hold them accountable to it when they fail to fulfil them. The current proposal is no exception, and is completely lacking in any details. Then there is the added question about what the party has done on this issue in its current term in office, given that cyber-crime and insensitivity of the police towards vulnerable sections of the society are not a new phenomenon.
There is also a proposal to formulate a ‘Model Police Act’. However, this is completely misleading, since a Model Police Act is already in existence, drafted in 2005 by a committee set up by the Ministry of Home Affairs, headed by eminent jurist and senior lawyer Soli Sorabjee. In fact, based on that draft, at least 17 states have either passed new laws, or amended their existing laws to bring them closer to this draft. Instead, the focus needs to be on ensuring a complete implementation of the existing Model Police Act across India.
In promising these urgently needed criminal law reforms, the Congress manifesto strikes the right note, but a fresh start has to be accompanied by an acknowledgment of past errors. Especially the setbacks to democratic functioning of the country that have ravaged the lives of innocent people through false or careless prosecutions. An acknowledgment of their own role in resisting reform and cementing impunity is necessary, before proposals of reform can be taken seriously in good faith. Yet, while the Congress manifesto does not lay down a definite path to achieving goals of criminal justice reform, it does offer a welcome beginning towards highlighting such issues that rarely get the attention they deserve.