By DM Deshpande
Recently, three different laws have been passed. One common string in them is the tough penalties prescribed for those who violate them. The Companies (Amendment) Bill 2019 has now made executives of companies directly responsible for defaulting on mandatory CSR. Not just stiff financial penalties but not undertaking social projects will now be treated as a criminal offence.
The second one is the Protection of Children from Sexual Offences (Amendment) Bill 2019 which seeks to increase the severity of punishment for sexual offences against children. The third one is the Code on Wages Bill which actually is an integrated law that combines four existing regulatory acts on wages of workmen. Covering over 500 million workers, the Act aims to establish floor wages besides deciding on overtime payments. Besides stiff penalties, again, criminal punishment is prescribed for violators.
All these enactments are, without doubt, well intended. They are also based on the premise that tough laws would act as a deterrent. There is also a view that such laws will come handy once the state improves it’s enforcement capacity. On the other hand, however, there are problems in plenty with laws that government cannot enforce. Perhaps the main problem is one of under enforcement simply because the state does not possess the requisite capacity.
Selective enforcement is not even random. It is arbitrary and almost invariably, the rich and the ‘connected’ get away while the poor and more vulnerable are targeted. There are number of instances where the political scores are settled, opposition parties and selective groups or individuals are targeted.
As the state’s weak capacity stands exposed, prospective defaulters evaluate cost-benefit of violation. Other things being equal, the probability of getting caught is a function of total offences committed in a given period. One of the surest ways of increasing the ‘crimes’ in a society is by way of bringing more and more activities under the ambit of criminal offences! As crimes increase, criminal justice system comes under greater pressure. It results in police force over working, shoddy investigations and courts trying to catch up with pending cases. As a result, fewer culprits are apprehended and even lesser are actually handed down punishment. One major unintended consequence of such ‘swamping of enforcement’ is how the pre-existing laws suffer. Even the efficiently and wisely crafted earlier laws may be under enforced simply because of the whole legal, police and enforcement infrastructure is over trained. On balance, the way out is to desist from passing laws that cannot be reasonably enforced. More importantly, pro-active steps should be taken to enhance states’ capacity which is extremely poor.
Number of judges on an average per million in India is under 15; the comparable number for US is 110. Not surprisingly, numbers of cases pending in all courts is on the rise. India has 129 police personnel per lakh population; only Uganda fares worse. Over 25 per cent of the allotted police positions remain vacant. As newer laws come in to force, there is no proportionate increase in the state capacity. India has the dubious distinction of having one of the highest numbers of laws in the world. This has hardly resulted in better governance. On the contrary, the clutter of acts and legislation have created confusion and even chaos. So much so that one judicial reform that has near unanimity is repealing outdated laws at the rate of one act per day. In fact, this was the commitment made by the NDA government.
Repealing outdated laws would free up the state capacity. Just to give one example, there is a Bombay Prohibition Act in Maharashtra which dates back to pre-independence days. It is one piece of legislation that is more observed in breach rather than compliance. The state, too, does not possess the capacity to enforce it in full; yet, it is selectively targeted against one or the other person. Tough laws are not a substitute for state capacity and adequate legal infrastructure. Nor is just the severity of punishment a proper deterrent.
The author has four decades of experience in higher education-teaching, research and administration. He is the former first vice chancellor of ISBM University, Chhattisgarh.