Archive for December, 2023

Our neocolonial complex

When the new criminal laws were recently passed by the Indian Parliament, a frequent refrain was that these laws were framed to do away with the colonial criminal jurisprudence of the nineteenth century. But, in fact, the new laws reinforce the colonial view of a huge population as fundamentally untrustworthy, hence the need for a wide range of offences that are punishable with stiff terms of imprisonment or death. This set me thinking: have Indians really, as a people, shed the colonial complex that was inherited from the British?

Actually, it would be more appropriate to categorise the mindset that dominates Indian thought as neocolonial. This is because, after World War II, the axis of power and influence shifted across the Atlantic from the UK to the USA. The UK has attempted some military forays since 1945, in the Suez (1956, with disastrous results) and in the Falkland Islands (1982, with a somewhat better result). Otherwise, the UK has been very much an understudy to the USA, in Iraq, Afghanistan and Syria. It is the USA that has colonised the global (including Indian) weltanschauung over the last 70 years, apart from meddling in the politics of innumerable countries across Latin America, Africa and Asia, at great cost to and human suffering in these countries.

As one born in the 1950s, my generation was exposed to propaganda from the USA & the UK (and countries allied to them), in the impressionable early years of our lives. Our young minds were filled with a surfeit of Enid Blyton (Famous Five, Mallory Towers) and Frank Richards (Billy Bunter). Apart from exposing us to life in good old Blighty, there was also a subtle racial stereotyping of the “natives” from India and other Asian-African countries. Fiction by the likes of Leon Uris painted Israel as a country with a divine right to get its Promised Land. The USA had, by the 1960s, stepped into the quagmire of Vietnam. Magazines like Reader’s Digest, Time and Newsweek printed rubbish week after week, detailing the atrocities of the Vietcong and artfully evading the horrors of the My Lai massacre and the carpet bombing of civilian populations in Cambodia and Laos. Other magazines like Playboy, Life and Vogue catered to the prurient tastes of the younger generation, awakening in them desires to partake of the bounty that Uncle Sam could offer.

Unsurprisingly, many of us, especially those educated in elite missionary/public schools, were ashamed to claim what was truly our heritage. As a participant in the Bournvita Quiz Contest, I informed our Quiz Master, Hamid Sayani, of my interest in Hindi film music, to find my response drawing derisive titters from our opponents, the girls from a prominent Delhi convent school. At university festivals, western music competitions drew crowds that the Hindi music competitions never did. Come 2023, I am most happy and gratified that my friend and college mate, Ajay Mankotia, has come out with Bollywood Odyssey, an ode to the Hindi film music industry. Hindi popular music has, in recent times, acquired a massive fan following, as mobile phone technology has penetrated large sections of the population. Bollywood has spread its wings internationally, thanks to the Indian diaspora.

To some extent, the shedding of the Indian inferiority complex vis-à-vis the West began with the liberalisation of the Indian economy in 1991. Freed somewhat from the shackles of a pseudo-socialist economy, the Indian economy accelerated away from its hitherto sluggish growth rate. Positive state policies in a number of sectors, ranging from infrastructure to energy, finance and telecommunications, have propelled the country to a different growth trajectory. At the same time, the need to step up job creation, improve social development indicators, make governance efficient and facilitate the explosion of entrepreneurial talent by removing bureaucratic hurdles faced by the citizen are still works in progress.

It is here that the Indian government (and domestic public opinion) still remain overly sensitive to studies and surveys emanating largely from the western world. Like Rome, India cannot be built in a day. It will take time for indicators, especially in the social sectors, to register dramatic improvements. Nor is it necessarily the case that figures for other countries (especially those under authoritarian leadership) are accurate. So, there is no need for government spokespersons and proudly nationalist commentators to launch into a denunciation of such reports. What is important, however, in the interest of meaningful policy making is that data gathered for different sectors be accurate and open to the public (and experts) for critical examination. If there are serious reservations about the applicability of international standards to Indian conditions, appropriate indicators can be developed for application in the Indian context. Take the example of the child nutrition measurement indicators used in India till 2008. Since the child nutrition indicators used in the USA would probably have overstated the percentage of underweight and stunted under-6 children in India, an underweight measure devised by the Indian Academy of Pediatrics (IAP) was used in the ICDS to assess the numbers of children who were very severely/severely/moderately underweight and normal as compared to the weight of the reference child population. Post-2008, India has moved to the universally used WHO growth standards. There is now a debate on whether India should adopt its own child growth standard indicators. Even if this is developed and officially adopted, there still needs to be a sound theoretical basis for the standards and ongoing progress in reducing child undernutrition should be measured by the same yardstick over time, without shifting goalposts to show achievement. Nor should data be withheld from public view. Unfortunately, there is a growing tendency in respect of various economic and social indicators to either modify baselines to show better results or to just stop publication of crucial data. Third party evaluations that differ from officially published figures are debunked. Not only do these reveal a deep sense of insecurity in official circles, they also impact effective policy making based on reasonably accurate data. There will always be some gap between the desired and actual outcomes: the shortcomings in implementation and the ground-level realities need to be analysed to effect mid-course policy corrections.

The neocolonial complex also has its reflection in the “neoliberal” economic policies followed in most nations (India included). These are based on a preoccupation with gross domestic product, with a corresponding sidelining of concerns relating to the environment and unequal income and wealth distribution. Manmade natural disasters and frustration and a growing sense of grievance in marginalised, deprived populations are the consequences that society has to face. Unless economic policies are fashioned to keep harmony among the four elements — the market, state, households and nature —  that constitute the modern economy, imbalances are sure to develop over time. Glitzy malls, superhighways, high-speed transport and luxury products are no indicators of a healthy society, especially when the state has to repeatedly step in to alleviate large-scale misery.

Governments in India need to focus on economic and social policies that lay stress on job and income creation for the mass of people. Reducing income and wealth disparities without destroying the entrepreneurial spirit or the environment should be the guiding principle in this context. Unless a new direction is forged with a people-centric focus, we can only rehash the prescient words of George Santayana “Those who cannot remember the past are condemned to repeat it.”

 

 

 

The fault, dear Brutus…

Cassius, in Shakespeare’s Julius Caesar, held that it was not the stars, but men themselves who were responsible for the situation they found themselves in. We in India are in a similar position almost two thousand years later. We tirelessly legislate around the clock — why, even the Constitution of India has been amended no less than 106 times in the 73 years after its adoption, as compared to the 27 amendments in the Constitution of the United States of America in the 247 years after 1776. I know it is not fair to compare the rates of amended legislation in countries with such widely differing histories and societies. The point I am trying to make is that the plethora of laws and regulations we have surrounded ourselves with in India have not yielded citizen satisfaction in terms of effective enforcement of laws in India. Take the Indian criminal justice system alone: a May 2022 report of The Hindu shows a pendency of 3.06 crore criminal cases in India. National Crime Records Bureau data as of end-2021 reveal that of 5.5 lakh persons in prison in India, over 4.25 lakhs are undertrials, the result of a combination of interminably lengthy criminal proceedings, denial of pretrial release (i.e., bail) to those awaiting trial and the inability of undertrials to pay the bail bonds.

It is in this context that I examine the passage, by a Parliament truncated by the suspension of over 140 MPs, of three new bills, the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA), replacing respectively the existing Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and Indian Evidence Act (IEA). Given that the major objectives of the new legislation were to enact citizen-centric laws that would bring about a huge change in the criminal justice system with the purpose of giving justice and not punishment, one must confess to a feeling of déjà vu that this exercise has, on the whole, fallen short on a number of fronts.

Norms of Victorian morality still seem to influence twenty first century Indian legislation. Recent Supreme Court judgments had removed the crimes of homosexuality (Section 377) and adultery (Section 497) from the IPC. However, the BNS is, in a sense, not gender-neutral where punishment of non-consensual sex is concerned. While stringent punishments have been provided for rape, there is no corresponding provision for non-consensual acts of homosexuality. Moreover, while the crime of adultery is not there in the BNS, Section 84 of the BNS, by use of the word “enticement”, appears to reintroduce the crime of adultery by the backdoor, thereby denying a woman agency over her body, which, in effect, implies that a woman is the property of her husband.

Two provisions in the IPC which one had hoped would get a quiet burial have again reared their heads in the BNS. Section 354 of the BNS relating to defamation reproduces, in toto, Sections 499 to 502 of the IPC. The British law of criminal libel was abolished in 2010 and, considering that this provision in the IPC is a creation of colonial origin, it would have made sense for the Government of India to make defamation liable for only civil action. Criminal defamation provisions in the IPC have been repeatedly employed in India to harass political opponents and muzzle the right to free expression, both by governments and individuals, often by instituting the criminal case in a jurisdiction far removed from the place of actual commission of the alleged offence. Even more worrisome is the reappearance of the “sedition” provision of Section 124 of the IPC in a more stringent manner in Section 152 of the BNS. The Supreme Court was constrained to stay the provisions of this Section because of its widespread (mis)use by law enforcement agencies across the country — a glaring instance of misuse was the application of sedition charges against 49 well-known public figures like Adoor Gopalakrishnan, Mani Ratnam, Shyam Benegal, Aparna Sen and Ramachandra Guha in October 2019 when they had written an open letter to the Prime Minister over the growing incidents of mob lynching. None of the five activities termed criminal — “subversive activities”, “secession”, “separatist activities”, “endangering sovereignty, unity and integrity of India”, and “ armed rebellion” have been statutorily defined. The broad nature of the criminalised activities and the imprecise and vague description of the methods by which people might be “excited” to support these activities gives ample scope for the political executive, with the assistance of the police, to curb freedom of expression and stifle dissenting views as also to target political opponents.

When there is already in existence a powerful anti-terror law in the shape of the Unlawful Activities (Prevention) Act (UAPA), there is no necessity for the BNS to incorporate “terrorist acts” in its ambit. Giving a police officer of the rank of Superintendent of Police the discretion to apply either law in any particular case is an open opportunity for rent-seeking through misuse of powers. It is an unfortunate feature of the Indian criminal justice system that the general criminal law criminalises many activities that are also covered by special laws. As with terrorist activities, the provisions for prosecution for petty organised crime and organised crime under the BNS again expose the citizen to multiple avenues of prosecution for the same offence. The Indian Police Foundation (IPF), comprising former police officers, in its submission to the Parliamentary Standing Committee on Home Affairs, has rightly recommended the deletion of the provisions relating to these two crimes from the BNS, since many states like Maharashtra and Karnataka  already have special laws to tackle organised crime. If at all the need is felt, a law for dealing with organised crime could be enacted for the entire country. As pointed out by the IPF, there is no need to keep in the BNS provisions already covered by the Juvenile Justice Act, Prevention of Corruption Act, Prevention of Cruelty to Animals Act and the Food Standards and Safety Act. Provisions for prosecution for the same offence under multiple Acts are hardly conducive to a citizen-friendly criminal administration.

A disquieting feature of the BNSS is the wide scope of discretion given to police officers in criminal investigation. Handcuffing of undertrials and convicts, justified only when there is an apprehension of the person escaping from custody (and, therefore, rightly frowned upon by the Supreme Court), is now permissible in a wide variety of offences, as deemed appropriate by the police officer. Police officers are given latitude in registering First Information Reports (FIRs), when the common experience of citizens is the reluctance of the police to register FIRs, especially where the wealthy and politically connected are concerned. Possible extension of police custody up to ninety days after arrest is another worrying provision in the new legislation, given the growing tendency to refuse bail. The right to personal privacy of individuals is also susceptible to violation with the legislation providing for any person to be required to give specimen signatures, finger impressions, handwriting or voice samples, regardless of whether or not that person is an accused or has been arrested in any case.

The conclusion is inescapable that, despite all pious claims to the contrary, the new laws are not progressive or liberal or citizen-friendly. Gender inequality is inbuilt in the provisions with women being seen as property. There is reluctance to adopt an open mind on issues like homosexuality and marital rape and, in the true spirit of the Constitution of India, giving primacy to the individual, especially the female, in her struggles against conservative traditions. The draconian provisions on terrorism and acts endangering the sovereignty, unity and integrity of India lend themselves to executive abuse, especially in the currently prevailing vitiated environment in the political sphere, and the noticeable intolerance of governments of all political hues of dissent from civil society.

Ultimately, however, the new laws will face their acid test in the manner in which they are enforced. The Supreme Court, in the 2006 Prakash Singh case, had issued directions for police reform, intended to insulate police functioning from rampant political interference. Seventeen years later, the transfer industry in the police department is still widespread, no efforts have been made to separate investigation from law and order duties and a short-staffed police force, inadequately trained in scientific investigation methods, struggles to bring criminal cases to a close. The vacancies in the judiciary, repeated adjournments in criminal cases and the poor quality of police investigations lead to interminable delays in justice for undertrials. Making provisions in the legislation for speedy justice will work only when all stakeholders in the criminal justice system — the state, police, the judiciary and the legal fraternity — work in tandem. Civil society organisations and the media are duty bound to exercise vigilance to ensure that the organs of state follow due process of law and that citizens are not subjected to needless harassment.