The Congress Manifesto of 2019 ahead of Lok Sabha election has proposed an interesting set of ideas for legal, judicial and institutional reforms. The overarching approach to the legal reforms proposed is summed up on page 35 of the manifesto as:
"a. Repeal instruments that are outdated or unjust or unreasonably restrict the freedoms of the people;
b. Amend instruments to bring them in accord with the Constitutional values of democracy; and
c. Codify and reduce the number of instruments that must be complied with by a citizen"
Given the many injustices and violations of human rights that have taken place during past Congress regimes, it is tempting to simply dismiss this as just words on paper from a party that has nothing left to lose and will say anything to return to power, or at least relevance, at the national stage.
That, however, will be a mistake.
To the Congress' credit, there seems to have been a genuine effort to seek widespread inputs in the process across the country, speaking to civil society organisations and individuals. The ideas and proposals need to be engaged with and debated widely as attempts to bring topics of governance into the conversation over elections. To that end, it is worth dissecting the promises to see if they meet their own goals (mentioned above) and whether they are desirable and feasible from a larger perspective.
Some promises meet these standards effortlessly. Deleting Section 124A (sedition) and Section 499 (defamation) of the Indian Penal Code, 1860 is the need of the hour. Notwithstanding court judgements that have held these provisions to be "constitutional" (with little regard to mechanisms which allow their misuse), these two provisions have been used mostly to stifle criticism of the government and the powerful rather than addressing any real harm to society.
The repeal of these provisions is a case of better late than never, removing two unnecessary and obnoxious provisions. Just as necessary is the proposal to remove criminal penalties for largely civil torts, a detailed exercise will be needed to identify the multiple provisions in the law which do so.
Some proposals don't say anything new or different and it is unclear what the party is really promising. Investigation agencies are already bound by the Constitution, Code of Criminal Procedure, 1974 and the Evidence Act, 1872 and the promise to amend laws to ensure search, seizure, attachment, summons, interrogation and arrest are in accordance with these does not mean much in the absence of specific mentions of laws they intend to amend. Just as mystifying is the promise to amend the Code of Criminal Procedure to make bail the rule and jail the exception — this is already the law laid down by the Supreme Court but often disregarded by the judiciary in a most casual manner.
Likewise, the promise of a Prevention of Torture Act which prohibits third-degree methods — all such methods are already prohibited and punished under the IPC and any real changes on the ground require police reform (addressed elsewhere in the manifesto). These changes at least tell us that Congress is aware of the issues, even if it is not quite clear how the law would make the necessary improvements needed.
Some promises, however, fall quite short of the goals the Congress lays out for itself.
Preventive detention laws, even if provided for under the Constitution, are prone to massive misuse notwithstanding the procedures. The promise to bring them in accord with "spirit" of the Constitution and not just the letter seems a cop-out. The "spirit of the Constitution" (like the notoriously malleable "spirit of cricket") means different things to different people and given the enormous violation of human rights that preventive detention laws enable, one would've hoped that the Congress remove all manner of doubt and simply call for their repeal. One could well argue that the spirit of the Constitution requires that preventive detention laws be done away with entirely and the proposal to merely amend them falls well short of that.
The same criticism applies to the promise to amend the Armed Forces (Special Powers) Act (AFSPA), 1958. Though there is a declaration of intent to remove immunity for armed forces for enforced disappearances, sexual violence and torture, this does not mean much since technically, there is no immunity from prosecution for such offences. As the courts have clarified, these kinds of offences cannot be said to be "in the course of duty" for armed forces. The real issue with the AFSPA is its very existence and what its existence represents — the use of military force against civilians.
It is hard to see how the continued existence of the AFSPA (in whatever form) will allow for any "balance" between powers of armed forces and the human rights of citizens. To that extent, this falls well short of the stated goals of the Congress' own manifesto.
Campaign manifesto is not to be read as if it was a legal contract but one wonders "what is the imagination animating the promises of legal reform?" Are campaign manifestos just a laundry list of changes made to please many without angering more, or are they offering a vision of hope to these with a bleak present? When it comes the question of legal reforms in the Congress manifesto, at least, perhaps a bolder imagination (even at the risk of privileged outrage) would not have been amiss.
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Updated Date: Apr 03, 2019 11:24:15 IST