Sedition, AFSPA, Aadhaar: Congress Manifesto’s Key Legal Promises

Congress manifesto includes proposals to repeal sedition law, reform AFSPA, amend Aadhaar, restructure Supreme Court

Congress President Rahul /gandhi.

(Photo: Kamran Akhter/The Quint)

The Congress released its manifesto for the Lok Sabha elections on Tuesday, 2 April. It includes a number of proposals for legal reform, including protection of civil liberties and changes to the judicial system, as well as some changes to the way laws will be created and assessed.

Here are the headline promises for the 2019 elections, as well as a preliminary assessment of their pros and cons.

Repeal of Sedition Law

• Omit Section 124A of the IPC (sedition) “that has been misused and, in any event, has become redundant because of subsequent laws”.

PROS:

Prevents misuse of sedition law to target critics of government.

Ensures freedom of speech, except in cases of hate crime or actual incitement of violence and waging war against India, which are covered by other criminal law provisions.

CONS:

N/A – the sedition law, a colonial era law enacted to prevent criticism of the British colonial government, has no place in current context.

Repeal of Criminal Defamation

• Omit Section 499 of the Indian Penal Code (criminal defamation), which would mean defamation only remains a civil offence.

PROS:

Prevents misuse of criminal defamation to harass journalists, whistleblowers, activists.

No more punishment without trial (like restrictions on travel) or intimidation where the statement is true (criminal defamation requires the statement to also be for public good).

Civil defamation has a more reasonable standard.

CONS:

N/A, as long as reasonable remedy in civil defamation is retained.

Amendment of Preventive Detention Laws

• Bring laws that allow for detention without trial in accordance with spirit of Constitution and international human rights conventions.

PROS:

Could prevent misuse of laws like UAPA and NSA to intimidate and lock up journalists, activists, academics, lawyers and dissidents without conviction – currently they can languish in jail for years only to be acquitted.

CONS:

No specifics, no promise to repeal the laws.

Ambiguity will allow misuse to continue.

Protection of LGBTQIA+ Community

• Ensure effective implementation of Supreme Court’s Section 377 judgment decriminalising consensual homosexual acts.
• Withdraw Transgender Bill 2018, replace with Bill consistent with NALSA case and in consultation with LGBTQIA+ community.
• Gender sensitivity training in “all government departments and organisations, including the Armed Forces and the Police Forces.”

PROS:

Ensures prevention of discrimination against LGBTQIA+ community and misuse of laws to intimidate and threaten them by police.

CONS:

N/A – these promises are in line with the Supreme Court judgment, including the directions issued by Justice Rohinton Nariman.

Amendment of Armed Forces (Special Powers) Act

• Amend AFSPA 1958 to remove immunity for enforced disappearance, sexual violence and torture.

PROS:

Ensures that AFSPA cannot be used to prevent accountability for illegal acts, and will help calm tensions in Kashmir and other parts of the country where AFSPA is in force.

CONS:

N/A – since the immunity is not being removed for all acts, it is not an overbroad dilution that will affect the military’s ability to function effectively.

Amendment of the Aadhaar Act

• Restrict use of Aadhaar to “subsidies, benefits and services provided by the government”.
• In light of “inherent limitations of biometric identification”, will allow alternative ID to be submitted instead of Aadhaar.

PROS:

Rolls back Aadhaar Amendment Ordinance 2019 and prevents intrusive attempts to link Aadhaar to private services like banks, mobile numbers.

Ensures no exclusion from benefits in case of authentication problems whether because of poor infrastructure or illness, old age, etc.

CONS:

N/A – these amendments would keep Aadhaar in line with the Supreme Court judgment.

Digital Rights

• Uphold net neutrality.
• Regulate power to shut down the internet.
• Pass law to protect personal data and uphold right to privacy.
• Pass law to provide safeguards against “unlawful or excessive surveillance and monitoring”, with independent and Parliamentary oversight.

PROS:

Could ensure privacy as well as effective enjoyment of other fundamental rights, including freedom of speech and right to life and personal liberty.

CONS:

Data protection law needs to be properly drafted as ambiguities could lead to situation worse than status quo, onerous data localisation requirements need to be avoided.

New Laws on Hate Crimes

• Pass a new law to prevent and punish hate crimes “such as mob-engineered stripping, burning and lynching.”
• Will include compensation for victims and accountability of police and district administration for negligence.

PROS:

Curbs on impunity for mob violence and communal violence, accountability for police and district administration will prevent collusion with mobs.

CONS:

N/A – the Law Commission has recommended improved laws on hate crimes, and spate of violence in last few years shows this is needed.

Restructuring of Judicial System

• Make Supreme Court a ‘Constitutional Court’ – will only hear cases on interpretation of Constitution, and cases of legal/national importance.
• Create new Court of Appeal between high courts and Supreme Court to hear appeals against high court decisions.
• Fixed retirement age of 65 for high court judges (instead of 62) and for Commissions or Tribunals.
• National Judicial Commission (NJC) to be set up to select judges for appointment to high courts and Supreme Court, comprised of judges, jurists and parliamentarians.
• Judicial Complaints Commission (JCC) to investigate complaints of misconduct against judges and recommend action to Parliament.

PROS:

Will reduce pendency in Supreme Court, allow it to focus on important cases.

Retirement age changes will ensure there are no post-retirement judicial roles for judges, which will help ensure judgments are not coloured by this.

NJC will bring transparency over opacity of Collegium system.

JCC will be a less cumbersome way to discipline higher judiciary than current impeachment process.

CONS:

Setting up Court of Appeal will take time and significant investment, which might otherwise be spent on improving facilities in existing courts.

NJC will allow executive to interfere more with judicial appointments, could lead to appointment of judges with ties to government. Will have to be significantly different from NDA’s NJAC which was struck down by the SC, or will be unconstitutional.

JCC may make it easier for executive to interfere and threaten judges.

Bail and Undertrial Reform

• Affirm the principle that ‘Bail is the rule and jail is the exception’.
• Release remand and undertrial prisoners who have spent significant time in jail without trial.

PROS:

Will ensure police don’t drag their feet in investigation, use detention to intimidate/torture accused persons.

CONS:

If bail not jail rule is not subject to proper assessment in non-bailable cases, will lead to intimidation of witnesses, additional threats to complainants.

Amendment of Anti-Defection Law

• Provide for instant disqualification of a MLA/MLC or MP for “proven disobedience to the party’s whip or for supporting another party.”
• Disqualified member not eligible to hold public office or be an election candidate.

PROS:

Will help prevent horse-trading, like was attempted in Karnataka.

CONS:

Will further erode possibility of cross-party cooperation and bipartisan legislation.

Scrapping of Electoral Bond Scheme

• Review RTI Act 2005, omit dilutions and add provisions to strengthen the Act.

PROS:

Restores transparency in electoral funding, prevents corporate donors to remain anonymous and hide influence.

CONS:

Will need to ensure full scheme, including disclosure relaxations, are removed, otherwise will be a cosmetic change. Alternative National Election Fund proposed by Congress could fall into same trap of opacity if not properly defined and regulated.

Public Consultation Required for Bills

• Public consultations will be required before a Bill is introduced in Parliament.

PROS:

Ensures that objections and concerns from relevant stakeholders will be taken into account before laws are drafted and passed. For example, this would ensure forest rights are not attacked the way the current government’s proposed new Indian Forests Act would, or the problematic Transgender Bill, which went against the Supreme Court’s 2014 NALSA judgment.

CONS:

From a procedural standpoint, there could be confusion if clear deadlines and points of contact are not specified.

Social Accountability Act

• Government schemes and programmes shall be subjected to social audit under a Social Accountability Act.

PROS:

Will ensure that unforeseen adverse consequences of government schemes and policies are mitigated, and compensation can be provided where schemes have led to unreasonable losses.

Will ensure there is better data for evaluation of future schemes and programmes.

CONS:

If criteria are not clearly established, this could lead to lots of litigation in the courts by government departments challenging the audit results.