The Indian Express | Jan Vishwas 2.0 and 3.0 will find the ‘madhyam marg’ between trusting and punishing citizens

The current system also blurs the lines between minor infractions and serious crimes. It can award lesser punishment for serious offences and severe punishment for lesser offences…

Good laws make for good societies. The recently announced Jan Vishwas Bill 2.0 at the Union government level, soon to be followed by Jan Vishwas 3.0 bills by various state governments, is critical to enabling this maxim.

A new database by the Vidhi Centre for Legal Policy shines a bright light on 174 years of legislative enactment across 882 central laws. Of these, 370 have criminal provisions for 7,305 crimes. Of these crimes, 5,333 attract jail terms, 982 attract mandatory minimum jail terms, 433 attract life imprisonment, and 301 attract the death penalty. Criminal justice laws like the Bharatiya Nyaya Sanhita, National Security Act, etc, only account for about 25 per cent of crimes. The rest are laws governing many aspects of ordinary life, such as parent and child care, gathering in assembly and mobility. India has steadily moved up in international rankings in improving the ease of doing business and is working on employer decriminalisation. The next phase of change involves raising the ease of living for our 1.4 billion nagariks by making humane laws that are easy to follow and enforce.

Currently, our plethora of criminal provisions for citizens is undoubtedly excessive; you can be arrested for milking a cow or buffalo on the street, failing to report the death of an animal within three hours, removing corpses by unprescribed routes, neglecting to provide proper exercise to a pet dog, distributing feeding bottles even to a mother who cannot breastfeed, and for simply storing e-cigarettes. These are just some inexplicably harsh punishments for common human failings that do not cause grave public harm. Cases using these provisions are rarely filed, and don’t often reach courts. Yet, having such provisions on the books increases the potential for the arbitrary exercise of power.

The current system also blurs the lines between minor infractions and serious crimes. It can award lesser punishment for serious offences and severe punishment for lesser offences. For example, the Mental Healthcare Act, 2017 prescribes six months of jail for failing to maintain records and fulfil reporting obligations. It also recommends the same jail time for performing brain surgery for mental illness without the consent of the patient and the Board. Similarly, running a red light while driving can incarcerate you for as long as if you forced a person to labour against his will. This disproportionality between crime and punishment can severely distort incentives across society.

Often, citizens simply do not know that these jail provisions and fines even exist across all these laws. That gives corrupt public officials a convenient handle to make them disappear. As the Vishnu Sahasranamam anticipated: Saha-srarchi sapta-jihvah sapta-dha sapta-vahanah, Amoorti ranagho chintyo bhaya-krudbhaya-nashanah (amateur translation: Fear was created so it could be taken away). No wonder citizens fall for digital arrest scams, as we saw recently, where petrified citizens paid up to prevent arrest for crimes they had not committed.

A multi-stakeholder consultation recently organised by Vidhi made it apparent how hard the road to decriminalisation may be. Participants gave examples of how harsh provisions affect poor people the most. Conviction rates are low; the process is the punishment. Courts are hesitant to pass sentences that does not pass a common sense test. Most importantly, it was recognised that the over-reliance on criminalisation in governance reflects the frustrations of trying to impose a modern state on an ancient civilisation. This is only a sarkaar or state-sanctioned system, not a samaaj or society-sanctioned process, and therefore likely to fail.

The proposed Jan Vishwas 2.0 bill can be a powerful gift to the nation. It must go beyond the framework used for version 1.0, where asking civil servants to give up jail provisions led to meagre outcomes. They say nobody surrenders a stick; it must be taken away. If we are serious about writing clear, concise, consistent, comprehensible, and implementable laws, and if we want to decriminalise existing laws with disproportionate punishments, we need a public consensus around an updated framework of values and guardrails.

The Vidhi report proposes four principles, including some that already direct criminal law. First, the protection of value (criminalisation must protect a specific value vital for the existence of society and the larger public interest). Second, protection against clear, identifiable and substantial harm (criminalisation must be justified only by a direct and reasonable apprehension of harm) Third, an effective and efficient solution (criminalisation must be deployed as the sole means to achieve the legitimate purpose of the law). Lastly, proportionate response (criminalisation must be a proportionate response based on the gravity of the harm).

After Jan Vishwas 2.0 adopts these four principles, every criminal provision must also be assessed for its impact on human rights, society, fiscal impact, and justice system capacity. Criminal law has a profound impact on the lives of citizens, whether they recognise it or not. Poor laws affect poor people the most, as they are most vulnerable to the power of the police and small courts. Sure, there will always be crimes that require putting people in jail. Yet a justice system must aim to be restorative and rehabilitative rather than retributive. As Paracelsus, one of the founders of modern medicine, said, “The dose makes the poison.” Anything powerful enough to help has the power to hurt. In India, 75 per cent of prison inmates are undertrials; they have not been convicted of the alleged crime that sent them to jail. We have 3.5 crore pending criminal cases arising from the 5,333 crimes identified in our myriad laws.

Rohini Nilekani is a philanthropist and Manish Sabharwal is an entrepreneur.