Things Fall Apart, the Centre Will Not Hold

Dr M N Buch, 

Dean, Centre for Governance and Political Studies, VIF

In 1947, despite the fact that Britain was the imperial power and India was the Indian Empire of the British Sovereign, the British did leave behind certain legacies, certain institutions, which did provide us the framework of administration and which still forms the skeleton and the sinews of our republic. India was governed by laws and we are a society of laws. At the level of the District and Sessions Court, the High Court and the Federal Court (now Supreme Court), the Judiciary was independent of the Executive and though the Magistracy worked under the District Magistrate the District and Sessions Judge exercised powers of both superintendence and supervision over the magistracy, apart from judicial superiority. The Legislature was functional both at the Centre and in the States (then Provinces) and there was an organised Executive consisting of the Covenanted Services (now the All India Services), the Central Services and Provincial Services. The Police was a part of civil government and though a servant of the law it worked under the superintendence of government. However, in the investigation and prosecution of offences the police enjoyed complete autonomy under the Code of Criminal Procedure, a position reinforced by the provisions of Chapter XII Cr.P.C., 1973. The difference between the Code of Criminal Procedure of 1861 and 1898 and the present Cr.P.C. is that the present law brings about total separation of the Judiciary from the Executive even at magisterial level and whereas the Executive Magistracy continues to function under the District Magistrate and is no longer under the supervision of the Sessions Judge, the Judicial Magistracy now stands subordinated to the Chief Judicial Magistrate who, in turn, is subordinate to the District and Sessions Judge.

The nearest thing to a Constitution that British India had was the Government of India Act 1935. This gave India a federal structure in which the centripetal forces were strong and which moved India towards a representational democracy. The Constitution of India as adopted by the Constituent Assembly on 26.11.1949 and made effective from 26th January 1950 borrows heavily from the Government of India Act, 1935, especially in terms of the relationship between the Union and the States. The centripetal character of the Government of India Act 1935 is carried forward in the Constitution of India. Of course we have borrowed from other democratic constitutions also and the Chapter on Fundamental Rights is inspired by the Bill of Rights which forms a part of the American Constitution. Certainly the British, as represented by the Viceroy, did have overriding powers, especially in matters relating to the maintenance of the empire, but seeds of independent, republican India were undoubtedly sown by the Government of India Act 1935. It would be churlish to deny this. The major contribution of our Constitution is that it did away with limited franchise, it recognised all citizens as equals, it extended the constitutional right of equality before law to all persons within the territory of India by Article 14, it eliminated separate electorates, it introduced universal adult suffrage under Article 326 and gave every Indian an equal say through his vote on who will govern India and how it will be governed. This is no mean achievement for a country which virtually shifted overnight from imperial rule to complete independence and that, too, in the midst of strife caused by partition and the massacres which went with it. This happened largely because the British left us the basic infrastructure of a State and our leaders were wise enough to not only keep it intact but to strengthen it. Pakistan lapsed into military dictatorship, despite the fact that we shared a common system and heritage of administration, because Pakistan had no leaders worth the name. The paths of India and Pakistan have diverged completely and whereas our democracy is strong enough to withstand even the onslaught on it between 1975-1977 through declaration of Emergency by Indira Gandhi, Pakistan continues to be just one step away from total chaos.

The first two decades of independence were glorious. The Nehruvian version of a planned economy resulted in massive investment, largely in the public sector, which created the basic capital goods industry in which we were lacking, built the infrastructure of roads, railways, power, irrigation and other key elements of a modern State, revolutionalised agriculture through the Green Revolution and lifted India from the depth of poverty and backwardness to a level where it began to be recognised as a State with great potential. Because the dream of Nehru was socialist, equity was at the core of all development and certainly land reforms gave the farmer hope and the public sector kept the predatory private sector at bay. The present day votaries of liberalisation and privatisation would find these words anathema, but they are too young to have seen the India into which I was born, in which a total of five thousand towns and villages were electrified (India has 5.5 lakh villages), the tiller of the soil was not its owner and we had just staggered out of the shock of the Bengal famine which killed over three million people. These economists, these acolytes of the private sector, who now denounce socialism, would probably not have reached the present place of eminence but for the institutions of higher learning created by the State. Macaulay may have made some Indians literate, but it is Nehru and Maulana Azad who made us educated. The Indian Institutes of Management which were not then the predatory agents of the corporate world, both to provide them employable youngsters and to train them at the cost of the State, charged a modest fee and created management cadres which have served the newly emerging corporate India with great distinction. This is because the fees structure was affordable, the State bore the cost of education, the students were not under pressure to get really high paying jobs because it was government which had invested in their education and, therefore, they were in a position to imbibe education rather than merely improve their own employability. The Indian Institutes of Technology and the Agriculture Universities such as the Punjab Agriculture University, the Pant Agriculture University and Jawaharlal Nehru Agriculture University produced experts in technology, agricultural science and veterinary science who on the one hand propelled India into the space age and on the other converted India into a country of agricultural surplus. It is the State which played the lead role and this is something we must never forget. Today IIsM charge a cripplingly high fee and institutions such as Indian School of Business at Hyderabad and Mohali in the private sector charge a fee which would put Harvard to shame. This has driven any desire for real education out of the management students and made them strive for that skill which will make them fit for high salary corporate employment. The day the Indian Institutes of Technology follow suit, higher education in India will take a nosedive.

Growth has both a positive and a negative side. Without a certain basic level of the economy the nation would be one in which resources are scarce and the economy and psyche of its people will both be coloured by a scarcity syndrome. In an environment of scarcity where there is a cut-throat competition for available resources, it is but natural that the law of the jungle will prevail, the strong will corner the major part of resources and the weak will be reduced to a level of serfdom. Let me give one example. Anyone who visits both Pakistan and India is shocked by the low level of agricultural productivity in Pakistan and is impressed by how far India has developed in agriculture. Not that we do not have drought and hardship from time to time, as is happening in Maharashtra this year, but thanks to Verghese Kurien we are the world’s biggest producer of milk, thanks to Y.S. Parmar we are one of the largest apple producers and because our land reforms have made the tiller of the soil its owner, the incentive to invest in long term improvement is strong and, therefore, whether it is wheat, soya bean or paddy even States like Bihar have moved into an era of surplus. By contrast in Pakistan 120 families own the major part of agricultural land and because the system of tenure and tillage is feudal, despite having the largest perennial irrigation system in the world, the Indus irrigation system, Pakistan’s agriculture is in dire strait. There are many amongst us who decry land reforms because according to them business like capital investment is thereby precluded from agriculture. I have never heard such hogwash in all my life because if we take the cumulative investment made by small farmers, with very encouraging results, it far exceeds the investment that would have been made had agriculture been made over to the corporate world. All this has been possible because India claims to be a socialist republic, not in terms of dogmatic socialism but certainly as an economy in which equity and social justice are the ruling principles and, therefore, land reform became the sine qua non of equitable government.

This is not an essay on socialism and undoubtedly many elements of the Nehruvian model are in tatters. The politics of the country is highly fragmented and fragile and because the desire for power has completely overtaken the desire for service, politics has become immoral, venal and totally unprincipled. There is so much corruption, not only at policy making level but right down to the lowest functionary with whom a citizen may be forced to interact, that we are almost beginning to compete with Kuomintang China. There is no area of endeavour, public or private, in which money, muscle power, intrigue, violence and cheating are not the dominant factors. India was considered a spiritual nation, but now spirituality is replaced by superstition and materialism has eroded value systems. In some ways the country is beginning to resemble a cartoon in which there is a long line of fish ranging from minnow to shark. The larger fish is trying to swallow the smaller one virtually ad infinitum, with the ultimate target being the minnow. Whether it is politics, or business, or social organisation, the largest predator is the one who is bound to win. This is the very antithesis of the society we must try and create so that the words of the Preamble, “Justice, social, economic and political” come true.

The much wider question of ethics, morality, principled politics and good, effective government will be addressed a little later, but let us first see what went wrong with our model of planned development. One can consider here two different models, the Soviet plus Mahalanobis model of a much milder one of state planning as adopted by India; and the Meiji era model that Japan adopted after the Meiji revolution. As the West impacted Japan and that country watched in shock and awe how Commodore Perry’s small American fleet with modern firepower easily overcame the Japanese forces. The Shogunate was overthrown, the Emperor, or Meiji, assumed power and Japan decided to modernise. Being a highly disciplined and organised people the Japanese sent droves of students to foreign universities to acquire a modern, scientific and technical education and the State made heavy capital investment in modern industry. The Japanese economy was totally state driven then, but the great business house, the Zaibastu, were co-opted very early to build and operate the economy. Being practical people the Japanese constantly reviewed development plans and as the business houses acquired skills, managerial ability and trained manpower, the State stepped back, let private business manage industry and increasingly adopted the role of a helper, a facilitator, but also a very strong regulator.

By contrast in India we just allowed the public sector to bloat itself. For the politician it became a cow to be milked for personal profit and a venue for extending patronage. All public sector undertakings became grossly over stuffed, with efficiency being in inverse proportion to staff expansion. Corrupt politicians corrupted the managers and almost the entire public sector became a byword for mismanagement, corruption, inefficiency, indiscipline --- with almost all undertakings making heavy losses and undermining the economy. Because we did not review, evaluate, step back where necessary, co-opt the private sector as it matured , we have brought the entire model into disrepute. Perhaps wholesale disinvestment is not the answer because today the private sector is also thoroughly corrupt and inefficient, but we need to loosen the control of government, give genuine autonomy to the management so that it runs the undertaking efficiently and swiftly punish all objectionable deviations and perversions. The public sector and what we have made of it is only one of the factors which has brought India to its present sorry state. I have been writing ad nauseam that after 1967, when the culture of purchasing power through bribing legislators afflicted us, the objective of being in politics has changed from the old concept of serving the country and instead it has made power and what can be personally gained by power the new paradigm. The old style politician who had come through the freedom movement and was still influenced by the austere philosophy of honest service, ahimsa, satya and satyagraha of Mahatma Gandhi, did not consider power an end in itself, acquisition of power as the sole purpose of being in politics and the loss of power representing the greatest tragedy, gave way after 1967 to a new breed of acquisitive, power hungry, unprincipled and dishonest politicians. The minute this happened no party any longer had any room for ideology, programmes, principled politics, a national vision and a declared and widely publicised policy statement or manifesto. In the absence of ideology and declared policy what remains is (1) management of elections by fair means or foul to maximize representation in the Legislature, (2) coalitions, generally between parties which had no common interests, which would bring the coalition partners to power, to retain which immediate expediency, unprincipled compromises and sheer populism would be the guiding principles of government. All these require complete eradication of conscience, values and morality from one’s psyche, a total rooting out of any feeling of guilt at wrongdoing and a mentality in which wrong became right because it is wrongdoing which brought profit and power. This, then, is the root cause of corruption, because purchasing of power itself is corruption and only corruption can feed the means by which power can be purchased. Corruption then becomes a way of life and once there is indifference or even acceptance, the nation is doomed.

Let us take any issue. There is inflation, which causes middle class unrest and the government answers by tightening money supply through high interest rates. The real cause of high prices is the parallel economy which is not amenable to fiscal or monetary control. A principled government would tackle the parallel economy, but an unprincipled government will not touch it because it is the main source of money for buying power. Therefore, in order to feed the parallel economy and keep it intact unscrupulous businessmen bribe politicians who, in turn, pressurise the civil servants whose duty it is to ensure good government, subject to policies framed by the politicians. The civil servants, in turn, begin to participate in corruption because why should they be left out when everyone else is making money. At a higher policy level this hurts the nation, but it does not directly affect the common man. Corrupt civil servants, however, do not restrict themselves to the high plateaus. They descend into every valley and gulley, and the common man, the one who is most exploited, is squeezed by lower functionaries in the village itself. What is more, all the programmes meant for his upliftment, such as the National Rural Employment Guarantee Programme, are subjected to such massive corruption, such massive leakages, that very little reaches the beneficiary and the major part is swallowed by politicians and officials. This is a negation of government.

We have no shortage of laws and the Indian Penal Code already has sufficient provisions for dealing with murder, rape, communal violence, etc. However, the politicians and influential criminals do not permit the Police to exercise its legal power vested by Chapter XII of the Code of Criminal Procedure, to detect and investigate and prosecute offences. After a while the police also become participants in corruption, with the result that crime goes unpunished. What is our answer? We enact more laws. Old laws are not enforced, harsh new laws increase the opportunities for corruption, crime remains uncontrolled, the average citizen suffers and politicians and civil servants garner wealth. How can such a system function? I am trying to avoid the retired civil servant’s disease of harking back on old days as a golden period and the present era being a black hole by comparison. However, the fact remains that upto 1967, by which year I had put in ten years of service, then upto 1975 till Indira Gandhi imposed a State of Emergency, India did have honest politicians and parties which had ideology. The civil servants, right down to constable, forest guard, village level worker and the Patwari, were not under the present day pressure to collect money for unscrupulous politicians and, therefore, were better, more honest, more people friendly officials than those of today. When the politicians become corrupt the civil servants are bound to be victims of this disease and this should cause us a great deal of anxiety.

We need to bring principles back to politics. Articles by me and speeches by learned people will not achieve this because ultimately the political parties themselves have to decide to go back to ideology and programmes. It is doubtful whether this will happen spontaneously and, therefore, it is for the electorate to punish every politician who fails to come up to their expectations. I have faith in the electorate because it is the people of India who voted Indira Gandhi out of power in 1977 for imposing Emergency and brought her back to power in 1980 because the Janata Government failed. I hope the day is not far when members of unscrupulous coalitions are similarly punished by being defeated at the polls. Meanwhile public pressure must be kept up to punish wrongdoing, to enforce the law, to ensure that every public servant is assigned responsibility and then held accountable and by social boycott, through the vote, by publicity, by building of public opinion, unprincipled politicians and corrupt officials are weeded out. At present the words, “Things fall apart, the centre will not hold”, seem to be true in India.

Freedom of Speech and Archaic Law on Sedition

Dr. M.N. Buch
Visiting Fellow, VIF

The Chambers Twenty-first Century Dictionary defines sedition in the following words: “Public speech, writing or action encouraging public disorder, especially rebellion against the government “. The word itself comes from the Latin word seditio, or growing apart. In a way it is connected with the word seduce, one meaning of which is to lead astray or to tend into wrong doing. The Indian Penal Code has section 124-A which makes sedition a criminal offence with the full section reading as under:

Section 124-A IPC—Sedition:: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “dissatisfaction” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measure of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under the section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, do not constitute an offence under the section ”.

The offence of sedition carries imprisonment for life as a sentence in its extreme form and rigorous imprisonment for up to three years if the court determines that the seriousness of the offence is mitigated by circumstances. This gives an enormous leeway to a court in the matter of sentencing and this in itself can be called into question for permitting excessive judicial discretion to a court. For example, under section 302 IPC the offence of murder carries a liability of either a death sentence or imprisonment for life and a trial court has to give one or the other sentence. The Supreme Court has laid down guidelines in the matter of sentence by directing that it is only in the rarest of rare cases that the death penalty should be imposed. Under section 304 IPC in a case of culpable homicide not amounting to murder the court may impose a penalty of imprisonment for life where the act which caused death in the ordinary course could be fatal, or imprisonment of up to ten years if such act was committed without any intention to cause death. In the case of section 124-A IPC no such guidelines are provided by the law and, therefore, a judge would be able to pass a sentence which could be quite inappropriate. The Indian Penal Code is one of the laws which govern this country within the framework of the Constitution. Under Article 13 a law which is inconsistent with or in derogation of the fundamental rights would be void. The Preamble to the Constitution mandates liberty of thought, expression, belief, faith and worship and Article 19 (1) (a) gives citizens the right to freedom of speech and expression. No doubt Article 19 (2) and (3) permit the Legislature to make laws to impose reasonable restrictions on the rights given in Article 19, but the operative word here is “reasonable”. In other words, the freedom of speech and expression is almost absolute and a restriction thereon is an exception which has to be imposed after very great thought and only in the interest of public peace and tranquility.

Chapter VIII of the Code of Criminal Procedure relates to security for keeping the peace and for good behaviour and in case the said person cannot provide adequate security, then under sections 107, 108 and 109 Cr.P.C. the person may be kept in jail for up to one year and under section 110 for up to three years. Section 108 applies to persons disseminating seditious matters. In other words, the Police and the Executive Magistracy can prevent a person from disseminating information which is seditious. Then we have Chapter X Cr.P.C. which relates to maintenance of public order and tranquility and permits the Police, the Magistracy, and on requisition the armed forces may cause an unlawful public assembly to disperse, if necessary, by use of force and to restore public order. In other words, acts which could be deemed to be seditious can in fact be prevented by pre-emptive action.

Section 124-A speaks of bringing into hatred or contempt the lawfully constituted government. The word “contempt” is defined by the Chambers Twenty-first Century Dictionary as either disregarding or disobeying the orders of a court of law or despising a court or a lawfully constituted authority. The Contempt of Court Act is sufficient to uphold the dignity of the courts and, therefore, the law relating to sedition would not be applied so far as courts are concerned, despite the fact that the Judiciary is one of the three pillars of the State. Hatred is defined as intense dislike, enmity or ill-will. There is a whole chapter in the Indian Penal Code, Chapter X, which deals with matters relating to contempt of the lawful authority of public servants. Under section 186 IPC if a public servant is obstructed in the discharge of his public functions the offender can be punished. Under section 188 IPC if there is an order duly promulgated by a public servant, then disobedience of such an order is liable both to imprisonment and a fine. Chapter XI of IPC relates to offences against public justice. An insurrection against government amounts to waging war against government under section 121 IPC can be punished with death. In other words, jeopardizing the security of the State to an extent where it is tantamount to armed rebellion is also subject to the most stringent penalty permissible by law. Section 124-A relating to sedition aims at preventing and punishing the exciting of disaffection towards government; the purpose of which obviously would be to bring about a downfall of government. Now it so happens that we are living in a democracy whose Constitution, in its Preamble, constitutes India to be a sovereign, socialist, secular, democratic republic. So long as the Preamble exists, the said Preamble being immutable, democracy cannot be denied to the people. What is more, the opening words of the Preamble are “We, the People of India …” In India sovereignty vests in the people and not in a monarch or in Parliament. Parliament is only the instrumentality through which in a representative democracy people exercise their rights. In this republic the citizen is supreme and the government is an organisation through which citizens exercise their supremacy through the executive powers which vest in the President and the Governors. Therefore, the right to criticise government and to call government to account is far superior to the right of government to protect itself against sedition. The words ‘treason’ and ‘sedition’ have to be used with great care and caution in a democracy.

Article 14 of the Constitution guarantees for every citizen equality before law and equal protection of laws. This makes India a society of laws and every action of government has to be within the framework of law. This includes depriving a citizen of his liberty through the operation of law because that is exactly what Article 21 says. Article 21 reads,” No person shall be deprived of his life or personal liberty except according to a procedure established by law”. The chapter on Fundamental Rights apart, Part IV of the Constitution lays down the Directive Principles of State Policy. Article 38 directs the State to secure a social order for the promotion of the welfare of the people. Supposing the State is in neglect of this principle? Do the citizens not have the right to be critical of the government, even stridently critical, even critical to the point of calling the government useless and worthless, if it does not strive to establish such a social order? Would critcism by people who accuse it of not doing its duty amount to sedition? After all, if a government is proved to be corrupt, unwilling to look after the welfare of the people, incompetent and negligent of its duties, the people have every right to call for the overthrow of such a government but through due process.

Under Part V, Chapter 2 of the Constitution and in particular Article 79 it is constitutionally mandated that there will be a Parliament for the Union. The House of the People is directly elected from territorial constituencies by the electorate consisting of every citizen of India not less than eighteen years of age on the date prescribed by law in this behalf. As per Article 326 of the Constitution the basis of election is universal adult suffrage. Every single Indian above the age of eighteen is, therefore, an integral part of the process of constituting the Parliament of India. Under Article 83 the normal duration of the House of the People is five years from the date of its first meeting after an election. Every five years the citizens of India, therefore, constitute the House of the People through a process of elections in which there is adult franchise. The executive government is conducted by the President on the aid and advice of the Council of Ministers which, under Article 75(3), is collectively responsible to the House of the People. Therefore, every citizen is a part of the process of the constitution of the Council of Ministers on whose advice the President of India conducts the executive government of the Union. Through adult franchise, through participation every five years in the process of constituting Parliament, through the constitutional requirement of collective responsibility of the Council of Ministers to the House of the People, every citizen of India has a say in how the duly constituted Government of India will conduct itself. The government cannot try and silence a citizen and accuse him of sedition if he criticizes the government.

When an election takes place contending parties do not fight it on the basis of praise of the party in power. It is the job of the opposition to criticise government, point out its shortcomings and ask the people to defeat the ruling party at the polls and place before the people its own agenda of how it will govern. The objective of such a campaign is to convince the people that the government in power is so worthless as not to merit its return to power. The objective is to create in the public mind such a feeling of disappointment about how they have been governed and in fact to arouse dissatisfaction with the ruling party that it is defeated at the polls. Because the ruling party and government are virtually one, till the ruling party is defeated, will such criticism amount to sedition? Incidentally, propaganda against the ruling party and government does not begin only after the election is announced. It is a continuous process in which government would be liable to criticism in the Legislature, by the press and electronic media, through public meetings, agitations and movements and through the expression of the right to free speech by individual citizens. Does all this amount to sedition?

Let us try another tack. Parliament frames laws, almost all of which are drafted by the Executive and, because the ruling party has a majority, they reflect the will of the Executive. High Courts and the Supreme Court quite often strike down such laws as being inconsistent with the Constitution. Sometimes strictures are passed. In cases involving government very often the courts are stridently critical of executive action. Can this be construed to be sedition? What about the Comptroller and Auditor General of India appointed under Article 148? Under Article 151 the audit reports prepared by the CAG are placed before Parliament by order of the President after CAG submits them to him. Generally audit reports are critical of government, up to and including CAG’s comments on transactions which virtually accuse the government of wrongdoing which may be tantamount to corruption. Is this sedition? Is criticism of government based on an audit report an act of sedition? Is a movement which says that corruption be rooted out an act of sedition because it does, in the eyes of the public, paint the government to be worthy of contempt because of its own actions?

The Constitution permits criticism of government to the point where the people are so fed up with it that they call for a change of government through the process of election. What the Constitution does not permit is the overthrow of government by violence or by means other than constitutional. The Constitution enjoins government to govern for the welfare of the people; it does not state anywhere that a government must govern wisely and well. What it says is that every five years the people of India will judge the performance of government and will decide whether there should be a change in those who govern us. To take care of a situation where people are trying to unlawfully overthrow the government, apart from section 121 IPC, we have Article 352 whereby if the security of India or any part thereof is threatened by war, external aggression or armed rebellion and this gives rise to a grave emergency, the President may issue a Proclamation of Emergency and assume extraordinary powers to deal with the Emergency. Similarly, if it is found by the President that there is failure of the constitutional machinery in a State he may issue a proclamation under Article 356 and pro tem take over the government of the State. During the Proclamation of Emergency operation of Article 19 can be suspended and enforcement of the Fundamental Rights may also be suspended. This, however, is possible only in a situation in which the very existence of India is jeopardised. Indira Gandhi misused the provisions of Article 352 and we went through a two-year period of virtual dictatorship. The Constitution and the people proved themselves to be stronger than arbitrary rule, Mrs. Gandhi was defeated in 1977 and the supremacy of the Constitution, constitutional government and the people of India were restored, hopefully never to be breached again. When we have all these provisions in the Constitution why do we need section 124-A IPC?

I am no great supporter of Binayak Sen. I am totally against violence against people and the State and I do feel that Naxalite terrorism must be suppressed with a heavy hand. If Binayak Sen supported the Naxalites and it can be proved that he and the Naxalites were part of a criminal conspiracy under section 120-A IPC or had a common intention under section 34 IPC to commit acts which led to culpable homicide amounting to murder I would be quite prepared to have Binayak Sen charged with these offences and suitably punished. But to accuse him of sedition under section 124-A is ridiculous, just as it is idiotic to charge Aseem Trivedi, a cartoonist, of sedition because he substituted three wolves for three lions and the legend ‘satyameva jayate’ for‘bhrashtameva jayate’ in a symbol which was an obvious caricature. For material which is libelous, or is otherwise defamatory we have Chapter XXI of IPC to provide legal remedies. Certainly a charge under section 124-A IPC is not justified. In fact I am now of the confirmed view that taking into account the constitutional right to criticise government, the duty of the citizens, the Legislature, the courts and the other constitutional authorities to call government to account and the freedom of speech that we all enjoy, there is no justification for the existence of section 124-A IPC which defines sedition and provides drastic penalty against it. The offence of sedition as defined by section 124-A IPC is similar to laws of blasphemy as operated in the medieval Europe and even today in some countries such as Pakistan which claims to be Islamic theocracies. Allah, Jehovah, God, Parmatma, call Him what you will, is too powerful to be threatened by a puny mortal who blasphemes. The Indian State is too powerful to be threatened by a seditious individual because normal law can effectively neutralise active sedition. Therefore, Section 124-A IPC needs to be immediately repealed.

The State of Law and Order

Dr. M.N. Buch

Visiting Fellow, VIF

Recently in Guwahati, the capital of Assam, a seventeen-year old girl accompanied by a male friend was accosted by a mob and for almost half an hour subjected to molestation, including physical assault, sexual molestation, disrobing and worse. There were a number of people on the street, not one of whom intervened. A television crew which filmed the incident did not try to stop the violence. Only four persons out of a mob of over forty have so far been arrested and there is no account of their being roughly handled by the police at the time of arrest. I am not for a minute suggesting that the police should take the law into its own hands, but when people who behave like barbarians are apprehended I am sure they would not come along quietly like lambs to the slaughter and, therefore, the police would be justified in using force when arresting such people. However, I suppose that is reserved for peaceful people indulging in a nonviolent public agitation against some unpopular administrative action. Earlier two persons who went to the rescue of a girl in Mumbai who was being molested by some goondas were murdered. Apparently more than two hundred people were present but no one came to the rescue of the victims.

Increasingly one finds that resort to violence by the strong against the weak is being witnessed throughout India and this is equally true of rural areas as it is of urban areas. This violence takes many forms. For example, attacks on dalits are a frequent feature in States such as Uttar Pradesh and Bihar, with Madhya Pradesh and Maharashtra not lagging far behind. In Narsimhapur District of Madhya Pradesh and Sangrur District of Punjab there is a systematic boycott of scheduled castes by intermediate and upper castes in which there is insistence that the scheduled castes work for the other castes as farm labourers or in traditional occupations such as flaying of dead animals or working as a cobbler at a wage to be dictated by the upper castes. We have on the statute book the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, just as we have the Civil Rights Act, the Indian Penal Code and the Constitution itself which debars any form of discrimination. These laws are meant to protect those who are too weak to help themselves and if the authorities were to use these laws a great deal of the social injustice now meted out to the weak could be prevented and the perpetrators could be punished. In Narsimhapur the district administration has been lethargic and in Sangrur the Deputy Commissioner has said that he has worked out a compromise formula which both parties have accepted. The dalits deny this and state that they were forced by the police to give affidavits to the effect that they now have no complaints. When Parliament enacted the protective laws it mandated enforcement of the laws and did not speak about any questionable compromise. An offence has been committed and it must be investigated and the criminals prosecuted. Why has it not been done?

In Haryana and Western U.P. various communities, but in particular the Jats, hold community council meetings called Khap Panchayats. In one such panchayat the community decided that no females below the age of forty may visit the market to make purchases; women, in particular young girls, may not possess or use a mobile telephone and no love marriages will take place within the community because that pollutes the culture of the community. Many Khap Panchayat has converted themselves into courts, even sentenced to death and executed couples whose marriage the panchayat did not accept and has forced people to go into exile. These are acts of murder, criminal intimidation and worse. The law does not state that if these acts are done by a Khap Panchayat they will be deemed to be legal. The police should have registered cases, vigourously pursued them and brought the criminals to justice. The police response has been extremely weak because government, in conspiracy with the Khap Panchayats, does not want enforcement of laws. Can twenty-first century India live with this situation in which a group of people illegally takes on the mantle of both judge and executioner and then proceeds to give a decision which results in murder? Can we expect such people to have any respect for law?

There is a superb piece of legislation called The Bonded Labour (Abolition) Act which is extremely well drafted, has clear definitions of what constitutes bondage in labour, provides for the freeing of bonded labour and empowers the executive magistracy to summarily try cases of persons holding bonded labour and handing down sentences upto three years of rigorous imprisonment and fine. My own experience was that when Arjun Singh was Chief Minister of Madhya Pradesh in 1984 I was summoned to the cabinet and asked whether in Bilaspur Division I had posted Inspectors for enforcement of the Act. Sixteen young officers had been posted by me and because they had not yet been exposed to the temptation of bribery or the pressure of political intervention these officers were active in their duty. I was told by the Chief Minister that the officers were harassing the cultivators. I pointed to five of his ministers from Bilaspur Division who were present in the cabinet and had been booked for keeping bonded labour. The Chief Minister wanted me to informally instruct the Inspectors to go slow in their work, which was tantamount to saying that they should ignore cases of bonded labour. I refused to do this because both the Chief Minister and I had sworn an oath to uphold the law and, therefore, I could not ask my officers to ignore it. My other argument was that in one case out of ten the officers would follow my instructions and in the other nine cases they would take a bribe to overlook wrongdoing. I was not prepared to accept such a situation. The Chief Minister said that my obstinacy would result in agriculture being adversely affected. I volunteered to prepare a draft letter from the Chief Minister to the Prime Minister giving the view of the State Government that the Act was not in the interest of agriculturists at large and, therefore, it should be repealed. A horrified Arjun Singh told me that this must not be done because after all the Bonded Labour (Abolition) Act was a fine piece of social legislation. On this I really blew my top and told the Chief Minister that he had opened the way for a complete contempt for law in Madhya Pradesh. A person who could keep bonded labour with impunity could then ask the worker to send him his wife for a night of pleasure and if the worker refused he could assault or even kill him knowing that nothing would happen to him. My view is that either we should not have a law on the statute book or, if it is there, then not give any officer at any level the discretion to enforce it or not. Law making is the prerogative of Parliament and the State Legislature, but in its enforcement the Executive must strictly follow the mandate of the Legislature and not discriminate in the matter of implementation. Unfortunately law enforcement is very sketchy in India and this, in turn, has greatly encouraged corruption.

When I joined the Service in 1957 we were told never to pass a prohibitory order under section 144 Cr.P.C unless the situation becomes uncontrollable without such an order. If, however, an order had been given under section 144 Cr.P.C it must be enforced rigidly, with no exception so that people knew that the magistracy meant business. I followed this advice up to the last day of my service. We were also told that when there is an emerging law and order situation Minor Acts must be enforced rigidly so that an environment could be built up in which people realise that violation of law would invite penalty. In January, 1960 I was posted as SDO and SDM, Waraseoni in Balaghat District. That was the time when communal violence on a large scale erupted in Jabalpur in what is known as the Usha Bhargava case. At that time the strength of the police in a normal rural police station was one Sub Inspector, two Head Constables and six Constables and the jurisdiction covered more than a hundred villages. Waraseoni, the sub divisional headquarter was a town of about thirty thousand people and the police station had a strength of one Sub Inspector, one Assistant Sub Inspector, three Head Constables and twenty-four Constables. It also had fifty or sixty villages under its jurisdiction. The senior most police officer was a Circle Inspector, because there was no Sub Divisional Officer, Police and the district itself had, apart from the Superintendent of Police, only one Deputy Superintendent of Police. With such a small Force and a volatile situation I had only a few options available to me. I ordered the CI to post two Constables at the bus stand and let no one from Jabalpur alight in Waraseoni as I did not want trouble makers from that city to enter my sub-division. I commandeered four or five vehicles, ordered their flaps to be lowered and secured and in each one of them I put one armed constable in the driver’s cab. These vehicles were then asked to patrol the town continuously. There were never more than five policemen on such patrol duty but the impression given was that five vehicle loads of policemen were on the prowl. I also told the police to rigidly enforce section 34 of the Indian Police Act whereby every act of nuisance, including public urination, throwing of a banana peel in the street, even spitting led to immediate arrest. The arrested persons were brought to the police station and made to squat there for three or four hours. Towards the end of the day a Magistrate visited the police station, fined each person a couple of rupees and released them. However, throughout the town the word spread that if you as much as spat in public you would be arrested. Imagine what would happen if someone indulged in an act of violence, arson or looting. The administration would come down heavily on such people like a ton of coals. In such an environment people were scared of violating the law and we were able to maintain complete peace in a time of trouble.

Today who enforces the law? Traffic lights are run with impunity; two-wheeler drivers refuse to wear the mandatory helmet, people park at will and do not use a seat belt when driving a motor vehicle. Shopkeepers intrude on public space without fear. The strong dominate the weak. On St. Valentine’s Day goons from the Bajrang Dal go around beating up young couples and vandalising restaurants and shops. Extortion rules the market and criminals with political patronage overawe the police. Let alone the Minor Acts, even the Indian Penal Code is not enforced as a hapless police, emasculated by political intervention, stands by as an onlooker only. The general climate is one of total contempt for law and, therefore, a seventeen-year old female child could be molested in public in Guwahati with no one lifting a finger to save her. It is like being in the court of the Kauravas with no Krishna to help Draupadi when she was being forcefully disrobed. One of the consequences of the increasing contempt for law is organised crime on an unprecedented scale. I absolutely refuse to believe that people such as Dawood Ibrahim could not only prosper but become one of the biggest gang lords in the world without the active connivance of the Maharashtra Police in the city of Mumbai, or the growing disillusionment with law keeping in that city which makes the citizens indifferent to the crimes that they were witnessing daily. How could they not be indifferent when every day they see the lawlessness of the Shiv Sena which tries to violently impose its agenda of narrow mindedness on the basically cosmopolitan city of Mumbai? If the Police could stand by doing nothing when the Shiv Sena was riding high, why should it not stand by as a spectator when Dawood Ibrahim was riding high? In fact Davood Ibrahim was prepared to bribe the police which the Shiv Sena would not do and, therefore, why should the police fight the source of profit? The breakdown of order has resulted in corrupting even such a fine Police Force as that which has been the pride of Mumbai.

The weakness of the State in law enforcement has given birth to widespread insurgency in the North-East, in the Punjab, in Jammu & Kashmir and now in what is called the Red Corridor consisting of about 160 districts which have passed into the control of extreme Left Wing Naxalites. Even today the government’s response is extremely weak partially because it does not have will to restore order, partially because extremists are able to mobilise fringe neo-liberal elements to attack the police and the administration and project that the present government is an oppressor and partially because our elected representatives have turned away from law making and overseeing law enforcement and have become both the agents and the beneficiaries of corruption. In such a situation let us try and understand what is happening to the police. In 1861 through a very fine piece of legislation, the Indian Police Act, the British organised a disciplined, unified, trained Police Force whose job is to maintain order, enforce the law, prevent crime, investigate offences and bring the criminals to justice, to collect intelligence which could help in the maintenance of public order and take measures to ensure that public streets and public places are kept free of obstruction and are available to citizens going about their lawful business. Superintendence over the Force vests in the government but administration of the Force vests in the Inspector General of Police. The law does not permit anyone to interfere with the administration of the police or the performance of its lawful functions. Unfortunately by purely illegal means government has increasingly interfered in the administration of the Force and politicians, criminal elements and others have daily tried to make the police deviate from performing its duty of maintaining order and preventing and detecting crime. Every time the Police fails to act against an infraction of law or it acts in a biased manner under pressure the law is weakened, respect for law decreases and law-abiding citizens are put to risk by the activities of law breakers. Cumulatively it leads to break down of law and order and renders government itself ineffective.

Is the situation lost for ever? On the night of June 25th-26th ,1975, when the Emergency was declared, orders went out to the police to take into custody persons or members of organisations designated in the order. The same Police Force which was considered ineffective, when given clear-cut directives, completed its task in just four hours. The Emergency was a horrible episode in our history but it did prove that if the administration had a clear-cut direction it could enforce order and the people would obey. Surprisingly during the period of Emergency there were very few riots and very few cases of police firing. Criminals and law breakers were afraid of law, a situation which had not prevailed since 1947. What the Emergency proved was not that the Executive Magistracy and the police have become permanently ineffective but rather it is lack of direction which has caused these agencies to deviate. In order to make the law enforcement agencies effective we do not need an Emergency. What we need is a political leadership which is committed to providing good government to India. For this purpose the leadership should be prepared to empower the Police and the Executive Magistracy and to stand by them when they take action. Government must at the same time build up an accountability machinery which ensures that wayward acts of the police are immediately reacted to and public confidence in the good behaviour of the Police is restored without delay. An empowered, accountable Police Force is the best shield against violence and law breaking and, therefore, without going into the merits of what the Supreme Court has said from time to time on Prakash Singh’s writ petition, the Police is permitted to perform its law enforcement functions, is protected against malicious complaints and is brought to account both for non-performance and mal-performance. If that happens and the Police becomes both active and proactive in a people friendly manner, within one year we can restore law and order to this country. That also requires that the citizens begin to respect the law, not only out of fear of punishment but because a society bound by laws benefits all, especially those who are too weak to look after themselves. Government must show a political will to lead the country to an environment in which the law counts.