In Defence of ‘His Majesty’s Opposition’

It was Lord Thomas Babington Macaulay, the British jurist, who had codified the Indian Penal Code way back in 1860. Macaulay’s code was subsequently approved by the Legislative Council. He once thoughtfully observed about man’s character. The measure of a man’s real character is what he would do if he knew he would never be found out. Macaulay’s name has come to the limelight again as the Parliament has recently passed the Indian Justice Code with the short title ‘Bharatiya Nyaya Sanhita, 2023’ intended to replace the 163-year-old Indian Penal Code mooted and crafted by Macaulay. Surprisingly, the Bill was passed by both Houses of Parliament amid the suspension of 143 opposition MPs, perhaps the highest in parliamentary history. The Code has since been accorded assent by the President and is awaiting to be notified by the Centre.

Shunting out the Opposition

Walter Lippmann, the American writer remarks that in a democracy, the opposition is not only tolerated as constitutional but must be maintained as indispensable. Democracy is a government by discussion. Discussion pre-supposes arguments and counterarguments. This implies that in parliamentary democracy, the legislature, which makes laws for the country, must itself provide an opportunity for various views to be heard throughout the term. If the lawfully elected representatives of the people are not able to present and discuss alternative options even if they are not part of the government and do not have an immediate way of making their plans succeed, then it is oppressive to democracy.

Opposition is a political grouping within a legislature and it commonly refers to all those political parties that do not constitute the government. It is the constitutional expectation that the opposition must act constructively without transgressing the constitutional limits. It may resort to political actions in the form of legitimate and permissible forms of protest. But it shall always remain loyal to the nation and obedient to its Constitution. Such was the solemn functioning of ‘His Majesty’s Opposition’, a term first used by the English Reformist MP, John Cam Hobhouse, in the early 19th Century. The ‘Loyal Opposition’ as referred to in many Commonwealth legislatures today also follows the same path.

In democracy, voters expect that their representatives will play a significant role in Parliament whether as a ruling party MP or as an opposition MP. The acceptance by society of a valid role for the Opposition is in itself an important underpinning for the work of the legislature. It is also important that the government accepts a formidable role for the Opposition, however small it may be, in relation to the government. It shall not be forgotten that even a numerically small Opposition may well represent a very large proportion of voters and may influence the parliamentary processes. Therefore, the Opposition has a seminal role to play in a democratically elected legislature as an initiator, scrutinizer or supporter or critic of legislative proposals that are laid before the House. The opposition has a duty to themselves and to the voters to play the role of an alternative government and the role of a government in waiting. This credible role is often ignored by the Opposition itself.

In a democracy, the majority always has its way. But the minority has also its say. This is true of the legislative framework as well. All points of view about the law in the making must be expressed and discussed. For that, the institution of Opposition should not merely act as a faction but must have a policy of its own. It shall not merely oppose destructively to ruin the game for the sake of power. It has to be borne in mind that the opposition implies resistance to the power of the State when that power is exerted oppressively. As a system of constitutional checks and balances guarding against abuse of power, Parliament provides a good forum for an effective opposition and the Opposition must use it while remaining responsible, respected, united and committed to the lives of the people.

A government is elected to rule and that the opposition’s role is constructive criticism by raising questions and suggesting methodologies that are well-researched. It is the duty of the Opposition to make known in Parliament the feelings of those sections of society whose views may otherwise be ignored or unknown to the government. Thus, they present a second side to the governing process and a crucial role in the passage of legislation. So much so, that the government must co-operate with the opposition when the opposition chooses to exercise its right of scrutiny. Side-lining or keeping out the opposition under the guise of parliamentary practice and discipline, is not in the best interest of parliamentary democracy. Opposition should participate and facilitate the legislative process without causing obstruction to the proceedings of the House.

Maintaining the dignity of the House is important as part of the legislative procedure. It has to be maintained both individually and collectively. At the same time, it is equally important that a fair opportunity must be given to the Opposition to scrutinise the legislative process. The House becomes a dignified legislative forum also with the presence of the Opposition and not by their absence. The dignity of the House has to be preserved by providing an active role for the Opposition as well. In the absence of the opposition, it becomes a secret business of the treasury benches. A fair and critical legislative scrutiny of the bill will be lost therefrom. It was Harold Laski, the British political scientist who said, “Men who are to live together peacefully must be able to argue together peacefully”.

Sanctity of law-making

The legislative process is a sanctified affair and a serious constitutional function. It is subject to constitutional limitations as well. Bills passed by the voice vote of the treasury benches without effective discussion do not always augur well. No law should be passed in a clandestine manner as observed by the Supreme Court in Anuradha Bhasin v. Union of India (2020). The legislative process should also satisfy the requirements of ‘due procedure’ established by law. This is not only a normative expectation under the Constitution, but also a requirement under natural law. Lon L. Fuller, the American legal philosopher suggests in his celebrated article that there can be no greater legal monstrosity than a secret statute.

Article 107 of the Constitution speaks about the journey of a Bill and the protocols that have to be followed in the matter. It regulates the introduction and passing of Bills in the Parliament. Article 107(2) prescribes that a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses. It thus uses the expression ‘agreed to’ in contra-distinction to the term ‘passed’ by both Houses of Parliament. Framers of the Constitution could have used the word ‘passed’ instead of ‘agreed to’. The word ‘agreed to’ was deliberately chosen to ensure that Bills are subjected to detailed discussion and scrutiny in both Houses before agreeing to them. In real-life situations also, it is the nuts and bolts of discussions between the parties that blossom into an agreement with a good outcome. It may involve positive and critical conversations as well. A law enacted without effective discussion and scrutiny always ends up as a bad law. It is the element of discussion and scrutiny that rules out negligence and lack of oversight and makes the law people-friendly.

Parliamentary rules governing the passing of Bills mandate a three-stage procedure. In the first stage, the general principles of the Bill are discussed. The second stage is meant for close scrutiny and consideration of each clause and amendment. It is in the third stage that the final round of observations are made. The Opposition has a role to play in each of these stages. They may choose to perform their role or at times be led by other priorities or considerations. It is a different thing altogether. But nothing can be done in parliamentary democracy to frustrate or prevent the constitutional role of the Opposition, a role crucial and assigned at every stage of law-making.

Parliament is an expression of people’s faith in principles of democracy such as participation by people in the decision-making process and government by consent. Parliament has immense powers to control, guide and inform the government. While in session, the question hour is used as an important mechanism through which MPs can elicit information about the workings of the government. By the opposition asking questions, the government gets valuable feedback and is alerted to its shortcomings. The British parliamentarian, Angela Rayner, rightly said: In a parliamentary democracy, it is the job of parliament to decide the law, not the government. In the course of discussion in the Constituent Assembly on Article 107(Draft Article 87), one Member even proposed to provide Parliament with a task to receive petitions and representations directly from the people in relation to the Bills being considered by the Houses. But that proposal was not considered evidently as the existing provision envisages thorough parliamentary scrutiny as against people’s scrutiny.

New code retaining the old

Modern criminal law is based on the fundamental belief that humans are morally responsible, and not harm-causing agents. A penal law has to embody rule articulation, liability assignment and grading functions in a balanced manner. A bare scanning of the Nyaya Sanhita shows that all are not new. The new Code envisages 358 sections as against 511 sections found in Macaulay’s Penal Code. Out of 358 sections in the Code, 175 are amended sections and 8 are new additions. The new enactment on analysis would show that major provisions contained in Macaulay’s Penal Code have been retained. Therefore, it is not a new law, but old wine in a new bottle with certain modifications expected to suit the perceived needs of the time.

Placing women and children at the centre

Under the British-drafted, crafted and voted penal law, offences against women and children were viewed lightly and were not treated as heinous crimes. At the same time, offences like treason, robbery and attack on government officials were reckoned as serious in nature and attracted stringent punitive measures. Some of the offences were prescribed only to meet the colonial requirements and to suppress the legitimate expressions of the ‘sons of the soil’. This archaic and colonial approach is said to be changed through the new code. The new law is catalogued in such a manner that it gives precedence to crimes against women and children which are placed even before offences against the State. This line of legislative thinking is perhaps in tune with the constitutional dream of envisaging special accommodation and treatment for women and children in law-making.

In the new code, a distinct offence has been defined in Section 69 that deals with sex with a woman by deceitful means or on the pretext of false promise of marriage, employment, promotion, inducement or marriage after suppressing identity. It is made punishable with imprisonment of up to 10 years. In all cases of gang rape, 20 years of imprisonment or life imprisonment has been prescribed. For mob lynching and offences against girls below 18 years, the death penalty has also been added. Snatching of movable property by force is made a distinct offence under section 304 of the new code. Punishment has been increased from 7 to 10 years of imprisonment for a person committing the crime on children, with an increase in the fine amount also.

The much-proclaimed merit of the new law is stated to be the removal of the offence of sedition. However, it has reappeared in another form under Section 152 of the new code which envisages stringent provisions for acts like secession, armed rebellion, separatism, subversive activity, and activity endangering the sovereignty, unity and integrity of India. Such type of conduct is punishable with imprisonment for life or imprisonment up to 7 years and a fine.

Financial transactions and electronic communication connected to such misdemeanours have also been brought within the ambit of the new offence and can be viewed as subversive activity or activity endangering the sovereignty, unity and integrity of the country. But it should be ensured that this provision is not invoked for political ends. The guarantee now available against its misuse is that the provision uses the words ‘purposely or knowingly’ thereby requiring criminal intent for holding a person guilty of the offence.

Community service

The new Code has prescribed community service as a form of punishment under Section 4(f) for petty offences. However, what it means by community service has not been explained. Hence the type of community service has to be determined in the wisdom and discretion of a court. The categories of offence to which this form of punishment would apply range from criminal defamation, attempt to suicide, restraining the exercise of lawful power, misconduct in public in a drunken condition, etc.

Community service or community restitution is a form of punishment intended to benefit the community that has been harmed by the acts of an offender. Therefore, the kind of community service must reasonably protect the public interest. At the same time, it shall not be unduly harsh also. It should be for the benefit of the community and must serve as a deterrent to other potential offenders thereby providing a symbolic and practical form of restitution for the harm caused. The kind of community service can be like requiring the offender to undertake community work such as cleaning up the roadside, charitable activities for a specified period, making charitable donations, undertaking physical labour, etc. The punishment of community restitution is not available for serious crimes. It cannot operate beyond the maximum sentence for the crime. In appropriate circumstances, it may be imposed as an additional form of punishment.

Missing areas

Changes in penal and sentencing policy with the object of improving law and order, simplifying the criminal justice process, and achieving speedy justice and ease of life are desirable. But in the quest for hurried justice, real justice cannot be buried. Search for the integrity of evidence for higher conviction and speedy disposal shall not deny justice to the accused.

One cannot just issue a judgement at this time that the colonial penal code is completely outdated and unsuited, after being its beneficiaries over decades. It must not be forgotten that it is still part of history, a relic of the past and has stayed with us successfully modulating human behaviour for 163 years, with certain modifications brought through amendments to meet the growing needs and changing perceptions of criminality. It has lived for a long because it is a robust law. For that matter, Edward Livingston’s Louisiana Code and the Napoleonic Code are still relevant today, despite their age.

The new code does not sufficiently address crimes in the virtual arena, new fraud offences, obtaining services fraudulently, fraud relating to e-business and e-commerce, malpractices of Dotcom companies or Internet-based businesses and so on. The approach that the new code adopts for preventing white-collar and transnational crimes is not entirely satisfactory. Even while the new law places women at the centre, marital rape is not termed as an offence against women. It punishes marital rape with a minor wife when the wife is less than 18 years. This approach is in tune with the 2017 Supreme Court ruling in Independent Thought v. Union of India.

Why new code, why not Amendments?

This may appear to be purely a legislative question. It is the look-out of the Government and the Parliament to decide whether changes should be introduced through a new law or Amendments. Even courts cannot tread into this arena as it is viewed as part of the essential legislative function. But when changes brought in through the new code are not massive in nature and when it retains about 80% of the existing provisions, is there any genuine need for new legislation, instead of amending the existing law? Changing the name of an existing code to embrace the Indian soul may be a justifiable legislative goal. The name, Justice Code, is always more appealing and humane than the Penal Code. However, it should not be forgotten that the title of the Code remained intact for the last 163 years. Modification of title could have been brought in through an Amendment as well.

Law-making is a delicate constitutional activity and guided exercise of power performed by the sovereign Parliament with constitutional responsibility and accountability to the people. Every law must be people-friendly and people-oriented, attempting to wipe tears from every eye. Changes are necessary, but, they should be justified on principles of legislative necessity, expediency, propriety and democratic due process. It is true that the legislature is the best judge to determine the exigencies of the time and the needs of the country and its people.

Law-making cannot be exercised in accordance with mob-wishes. Victorian morality cannot fix the standards for reprehensible criminal conduct. If the object of the new code is to replace the old British law which was full of signs of slavery and exploitation, why was it adopted and allowed to prevail for such a long time even after coming into force of our Constitution?

The Constitution of India expressly abolishes untouchability and its practice in any form through Article 17. Exploitation of human beings is also forbidden through Articles 23 and 24 and other cognate provisions. A law in existence in a country shadowed by signs of exploitation is definitely not in consonance with constitutional values. It is our determination that slavery should disappear like an unpleasant night dream and that trafficking and exploitation of human beings is put to an end. When the State owes the primary responsibility to end slavery and exploitation, the Parliament and the Government as organs and surrogates of the State should be roped in to set right the wrong.

Connecting to the New Era

Rapid advancements in technology have generated new dimensions to crime, evidence and investigation. In the new era of digital revolution, laws must envisage state-of-the-art technologies. It is almost true that people are losing faith in the criminal justice system and are even afraid of setting the criminal law in motion. Hence, changes are necessary to simplify the criminal justice process and to achieve ease of life. But, it should be brought in a principled, harmonious and balanced manner inspiring the faith and trust of the people and winning their hearts.

The new Code has defined acts of terrorism in Section 113. It has also dealt with organised crimes, crime syndicates, continuing unlawful activity, corruption, trafficking of persons, breach of contract to attend to and supply the needs of helpless persons, etc. within the spectrum of the Justice Code. Section 106(1) of the Code enhances the punishment for causing death by negligence from 2 to 5 years, while in relation to negligence by doctors resulting in death, the punishment prescribed is up to 2 years and a fine. As far as medical negligence is concerned, negligence should be gross, of a significantly high degree as pointed out by the Supreme Court in Jacob Mathew v. State of Punjab,(2005) for it to be culpable.

Building Great India

The Indian Penal Code, a colonial law, survived and stood d the test of time only on account of its fair accuracy. Sir James Stephen mentions the qualities of a strong law. He remarks: “It is not enough to attain a degree of precision which a person reading in good faith can understand. It is necessary to attain a degree of precision which a person reading in bad faith cannot misunderstand”.

The archaic language and concepts found in British laws, not in tune with current social norms and values and which are the vestiges of colonialism have to be erased. The emergence of new forms of wrongs in cyber space warrants refinement of the existing law by properly defining such wrongs. Economic success is crucial for inclusive growth and national development. This makes us have a relook at economic offences by meticulously defining and cataloguing them in the penal law.

As a civilised society upholding democracy, the rule of law and human rights, the State owes a duty to protect life and property; and provide security to its citizens. This is achieved through the instrumentality of criminal law. The mandate of the criminal law is thus to punish the wrongdoers and prevent the recurrence of crime.

Fruitful mirror

Criminal law has to be sensitive to changes in social structure and social philosophy. It has to be a reflection of contemporary social consciousness and a fruitful mirror of a civilisation underlining the fundamental values on which it rests. At the same time, it has to promote public interest and the greatest happiness of the greatest number.

Independence was a battle for the soul of the nation suppressed for long and with Independence it found ‘utterance’. As warned by Mahatma Gandhi, reliance on retributive justice centred on the “eye for an eye” principle may sometimes make the whole world blind. Thus, there is also a need to treat wrongdoers falling into certain exceptional categories as patients whose criminality or delinquency could be healed through therapeutic and reformative approaches. Equally, penology must embrace the saga of victimology providing just measures to compensate and rehabilitate the victims of crime, particularly with respect to offences against women and children. That must also be ensured by the Nyaya Sanhita.

(Dr. Pauly Mathew Muricken is a lawyer, writer and academic based in Kochi)