A criminal law

A criminal law

By THE SUNDAY GUARDIAN | 11 July, 2015

Prime Minister Narendra Modi needs to ensure that each wing of the government he has been heading since 26 May 2014 functions in sync with his strategy of "Minimum Government, Maximum Governance". Earlier, the Telecom Ministry had tried to ensure the retention of Section 66A of the infamously amended Information Technology Act. Infamously amended (in 2005) because the new provisions made the already dysfunctional legislation of five years previously draconian on a level never before witnessed in a democracy. Small wonder that those whom the authorities sought to punish through the taking away of their personal liberty often were prosecuted under a law which reeks of the colonial past of India, when the colonial masters had the discretion to send any individual they chose to jail. Indeed, because of the manner in which Prime Minister Jawaharlal Nehru retained the entire construct of British-era laws and procedures, sending an individual to jail is easier in India than in any other democracy on the globe. Successive governments have been loath to dilute the anti-democratic provisions of the Indian Penal Code, conscious of the fact that it is such powers that give them the ability to extract huge amounts as bribes from citizens seeking relief from restrictions designed to make it impossible for them to function in an effective manner. Among the laws that are so lovingly preserved in India long after the Union Jack got replaced by the Tricolour is that relating to "criminal defamation". Through the use of the provisions of this statute, any individual deemed to have defamed another faces the prospect of prison for a significant length of time. Freedom of speech is central in a democracy, and the criminal defamation proceedings within the Indian Penal Code (which has celebrated a century and a half of vigorous existence) are designed to smother the free expression of views critical to the maintenance of a healthy democracy.

Fortunately, the Supreme Court correctly concluded that Section 66A of the Information Technology Act was incompatible with the spirit of the Constitution of India. The anomaly of having a penal code nearly 90 years older than the Constitution needs to be rectified by the simple expedient of striking down each law that is incompatible with the Constitution. In the view of this newspaper, the provisions within the IPC relating to criminal defamation ought to be consigned to the dustbin, the way they have been in mature democracies. However, rather than agree with a proposition so obvious, the Law Ministry seems to have developed the same affinity for colonial laws that Nehru had, hence the spectacle of Government of India supporting such provisions rather than seeking their abrogation. Three petitioners have come forward to oppose such provisions. However, it will be asked of Arvind Kejriwal how he is now opposing criminal defamation yet sought to foist the same charges and use the same provisions of the law against individuals less than laudatory in their public references to him. As for Rahul Gandhi, he did not reveal his distaste for such noxious provisions while he was the second-most powerful person within the UPA, after Sonia Gandhi. However, both Kejriwal and Gandhi seem to have understood their earlier folly and are now making amends through their plaint in the Supreme Court opposing the provisions for criminal defamation within the IPC. Hopefully, Prime Minister Modi will be able to prevail upon his colleagues and ensure that the government join with significant elements of civil society in opposing such British-era provisions, statutes designed to stifle free discussion and criticism of the government and its agents. If India is to finally free itself of its colonial hangover and become a country which respects freedom of expression, laws prescribing criminal sanctions for alleged acts of defamation need to go, and hopefully they soon will.

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