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  • Paridhi Jain

​Sarkar vs Statute: Analyzing Legal Implications of Policy Changes Ahead of the 2024 General Elections

By: Paridhi Jain

 

In the dynamic tapestry of the Indian democracy, general elections stand as a pivotal point where the people come together to collectively exercise their sovereign right to choose its leaders. However, beneath the fervour of electoral politics lies a perpetual duel between the political and legal landscapes which is marked by conflict, confusion, and challenges. In pursuit of a majority, politicians engage in policy reforms that induce seismic shifts in the legal landscape, leading to instability and impediments. This article outlines some of the recent political mandates and policy changes and their subsequent impact on Indian jurisprudence. To do so, this piece focuses on 3 key policy changes amidst the General elections for the Lok Sabha in 2024, namely The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service And Term of Office) Bill, 2023, The Telecommunications Act, 2023, and the Bharatiya Nyaya Sanhita, 2023 and discuss their benefits and potential risks they pose.

 

1) The Election Commission Bill of 2023


The Union Ministry of Law and Justice headed by Arjun Ram Meghwal introduced the Chief Election Commissioner and Other Election Commissioner (Appointment, Conditions of Service and Term of Office) Bill in Rajya Sabha in August 2023. This bill now stands cleared as it was passed by the Lok Sabha in December 2023. This bill entails procedures for appointing election commissioners and stands in stark contrast with the judgment of the Constitutional Bench of the Supreme Court in the case of Anoop Baranwal vs Union of India and Ors which said that such appointments are to be made by the president with recommendations by a committee consisting of the Prime Minister, Leader of opposition and the Chief Justice of India. According to the court, this order would hold good until the parliament officially passes legislation on the same. The parliament did pass legislation, however, the legislation was a complete overhaul of what the court envisioned. The bill, while upholding the appointment of election commissioners by the President and a committee, made drastic and allegedly ‘authoritarian’ changes to the composition of the recommendation committee and said that the committee would be chaired by the Prime minister with the leader of the opposition as a member and another cabinet minister as a member instead of the Chief Justice of India. This move by the incumbent government is being viewed with utter scepticism and is being claimed as an attempt by the government to control the election body. This bill essentially nullifies the impartiality of the due process of appointment of election commissioners and gives the reign to the BJP. Furthermore, the election commission is a constitutional body that is in charge of one of the most crucial aspects of a democracy. Interference into this body by way of bills by the executive can have drastic results for the future of democracy in India because this bill ‘makes the umpire subordinate to the team captain’ which means that the election commission which is supposed to be an impartial body governing the elections, will be made to serve the ruling government which does away with the whole idea of impartially and democratic electoral process. Further, it also conflates the executive and the electoral body by blurring their boundaries because the creation of the electoral body itself will be done by members of the executive which calls into question the unbiased nature of the committee.

 

2) The Telecommunication Bill of 2023


Another major policy change that ensued from the aforementioned Election Commission bill, is The Telecommunication Bill of 2023 which was introduced in the parliament on December 18th  by the IT minister of the cabinet Ashwini Vaishnaw and is being claimed as an extremely draconian and despotic, just like its 2022 counterpart. Earlier envisioned to overhaul archaic colonial laws such as The Indian Telegraph Act 1885 and Indian Wireless Telegraphy Act 1933, the act of 2023 is claimed to be more colonial than ever, providing a wider net of control over digital services in India. The provisions of the bill allow the government hyper surveillance citizens’ devices and give the government the authority to monitor and/or intercept devices of people. While this can prove to be instrumental in monitoring national threats and protecting the security interests of the nation, it poses an equally detrimental probability of gross privacy infringement and misuse of power by the government by way of using ‘public interest’ as a shield. Further, Clause 2(p) read with Clause 2(t) creates ambiguity around the definition and scope of telecommunication and telecommunication services. This ambiguity allows the bill to pervade the realm of internet services, allowing the government to suspend, intercept and surveil the net and all services attached to it. Again, this creates an ambivalent situation where on one hand surveillance of the net can be used judiciously to tackle illegal activities on the internet and provide speedy redressal to aggrieved parties, it can simultaneously be used as a tool to censor and control information in the public domain. Further, this bill deteriorates user rights on multiple grounds, the most prominent one being the blatant invasion of privacy because this bill requires biometric-based verification of the users who are using any telecom service in India. This type of verification puts the user in a double jeopardy where not only is their privacy being infringed, but their anonymity on the internet is also being forcefully taken away. Interestingly this also resembles a modern type of panopticon prison, first envisioned by Bentham and then by Foucault to illustrate how disciplinary regimes subjugate its citizens by way of asymmetric surveillance. The concept consists of a prison which surrounds a central tower. The inmates are in the cells and the watchmen in the central tower from which they keep an eye on the prisoners. There is a glaring parallel between this panopticon and this bill which will essentially allow the government to monitor citizen’s actions while there is no way for reciprocal oversight by the citizens.   

 

3) The Bhartiya Nyaya Sanhita of 2023

To complete the trifecta, it is important to discuss The Bhartiya Nyaya (2) Sanhita of 2023, Bhartiya Nagrik Suraksha (2) Sanhita of 2023, and Bhartiya Saksha (2) Bill of 2023 that replaced three of the major criminal law acts namely- The Indian Penal Code (IPC) of 1860, The Indian Evidence Act of 1872 and The Code of Criminal Procedure (CrPC) of 1973, respectively. These bills were passed unanimously in the parliament. However, it is to be borne in mind that the unanimous majority occurred at a time when approximately 147 members of parliament from opposition parties were suspended. This implies that the government unilaterally introduced and passed the legislature in the absence of consent from the opposition.


Nonetheless, as far as the bills themselves are concerned, the nomenclature of these bills is a strategic move by the central government to reject and replace colonial names given by the British. However, apart from the names, what has led to mass protests are the provisions of the bill. Home Minister Amit Shas claims that the approach contained in these three new code bills is one that ‘promotes justice, rather than punishment’ and thus this new approach will deliver criminal justice. However, some of the provisions that have been reproduced verbatim from the old laws are being contested. For instance, laws relating to abortion and miscarriage contained across sections 86 to 90 still criminalize abortion unless done to safeguard the life of the mother. The sections even go on to penalize abortions done in later stages of pregnancy even with the consent of the mother. In the present context, these provisions not only stand at odds with a woman’s right to bodily autonomy as part of her right to privacy (as recognized by the SC in K.S Puttuswamy vs Union of India and Ors  in 2017) but prove to be an anti-thesis of bodily autonomy. Further, the new BNS act does not acknowledge or indicate to withstand the provisions of the Medical Termination of Pregnancy Act 1971, which legalizes abortion in certain cases, and which liberalized, to an extent, the legal regime governing abortions in India. It is important to note, such legal provisions are crucial in cases of rape victims who have conceived and help the victim in getting a safe and legal abortion, without any delay. Furthermore, in the context of the 21st century, the act fails to adopt a gender-neutral approach to widen the ambit of offences, more particularly sexual offences. For instance, the new bill has not retained section 377, a section which essentially criminalized forced intercourse against the order of nature against any man, woman or animal. In the absence of this section, there will be no legal protection extended to adult males and transgender persons who are victims of rape and/or sexual assault. The act primarily focuses on culpability and punishment for rape against a woman while turning a blind eye to the same offences committed against a man or any other human with a different gender identity which indirectly points out to the states’ hesitation in looking beyond the heteronormative society. Thus, there is a dire need for a law that extends its protection to any person whose bodily integrity is violated non-consensually by another person. Lastly, the Indian Penal Code was formulated in 1860 and has been the law of the land ever since, to suddenly overhaul such a code that is considered the bible of criminal litigation in India will create instability in terms of its adoption and practical application.

 

Conclusion

The above referred policies showcase how political mandates are achieved under the façade of legal reform ahead of the General Elections for the Lok Sabha in 2024. The previously discussed legislative amendments have reverberated through the legal landscape, prompting apprehensions regarding democratic principles and individual rights. This necessitates a scholarly examination of checks and balances to be instituted, particularly in anticipation of upcoming elections, to safeguard the integrity of the democratic and legal frameworks.

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