Draconian laws

There are many reasons why they do not work

It is axiomatic that it will be difficult to curb activities which are considered harmful to society unless there is deterrence in law against them. An element of fear over falling foul of the law should be there. On the other hand, excessively harsh laws that make criminals out of fairly ordinary transgressors run the risk of becoming counterproductive. A sense of unfairness, where there should be remorse, overtakes the wrongdoer. In the case of India, lawmakers have an additional reason why they should think several times before passing legislation with very tough provisions for violation: The Indian system is easily prone to abuse by law enforcers and tough sanctions can provide a handle for harassment and rent-seeking.

These considerations do not seem to have weighed with the Bihar administration of Chief Minister Nitish Kumar as it has gone about enacting a law to enforce prohibition. The law appears to ignore a basic principle that those accused of committing a crime should be assumed innocent until proven guilty. It provides that if liquor is found on premises then it will be assumed that all adults residing there are in the know and the burden of proving otherwise will be on them. According to another provision, if found guilty of facilitating drinking or having liquor stored on premises, a person can be jailed for up to 10 years and have to pay a fine of up to Rs 10 lakh. It needs no imagination to conceive the potentially exploitative power these provisions put in the hands of law enforcers and the kind of harassment this can result in.

Another recent legislation, proposed by the central government, to strengthen the Motor Vehicles Act in order to make Indian roads safer (they are not and action is certainly needed to make them so), suffers from the same excessive use of deterrence. Fines for various offences have been increased by 10 times or more. In case a juvenile is deemed the offender, the guardian or the owner of the vehicle will have to pay a fine of Rs 25,000 plus undergo imprisonment for three years. A habitual drinker or a rash driver cannot change his ways in a day. Fear of severe punishment will certainly make him seek to do so but a long period of counselling and imaginative communication is necessary to bring about a change of behaviour.

These draconian laws indicate that the administrative culture in the country is still driven by the attitude of a thanedar with a danda. Governments, both at the Centre and individual states, seemed to have learnt nothing from the zero effect that a strong Narcotic Drugs and Psychotropic Substances Act, in force since 1985, has had on the level of drug abuse in Punjab. In 2013, Punjab accounted for over a third of the cases booked across the country under the Act and drug addiction has become a key issue in the campaign for the coming state elections. If further proof is needed of how a law needed for good reasons (national security) can end up negating its purpose (alienating sections of the people) is the Armed Forces Special Powers Act in force in Jammu and Kashmir and the north-eastern states. Longstanding resentment against the unthinking manner in which it is used is considered one of the main underlying reasons behind the re-emergence of civil disruption and violence in Kashmir.