Saturday 13 February 2010

Why colonial law for “free” citizens? (PO)

M D Nalapat

 Until General Zia-ul-Haq sought to align Pakistan culturally with Saudi Arabia in the 1970s by changing the laws of the land in a way that became closer to that country, Pakistan too had the same system of British colonial law as India. In the satisfaction at the “European” standard of such laws, what is forgotten is that the laws passed by the British in their Indian colony were not the same as those that were enacted for citizens of the UK. Instead the laws passed in India were designed for colonial subjects, and hence gave disproportionate power to the state authorities and very little rights to the citizen. Because of the potential for generating bribes and patronage that such British-era laws bring, political leaders in India have thus far refused to liberalise the laws in a manner that ensures that citizens of India cannot get persecuted by the state,the way they were under the British Raj.

In India, an Income-tax officer has the power to take away property and even liberty on the basis of a subjective decision, as was the case when the British were masters of the subcontinent. Several of the actions of the Income-tax department have been kept outside the purview of the court system, so that the citizen needs to appeal only to other officials to get redress. Thanks to such vast powers, it is easy for the government of the day to intimidate people, especially those with High Net Worth. Of course,even relatively poor and honest taxpayers can get harassed by the Income-tax department, especially if the order to do so has come - orally of course - from powerful politicians and the officials who toady to them. In India, there are many former Chief Ministers (of Indian states) who are in politics. Almost all of them have become super-rich, but only those who fall foul of the present governmnent have been subjected to searches and seizure of wealth. The others remain protected by their connections. Recently,there were raids on the residence of the former Chief Minister of Jharkhand state,Madhu Koda, an individual who has no contacts with India’s influential media fraternity. According to the authorities,about $1 billion was recovered, in the form of foreign bank accounts. While the figure may look large,the reality is that Madhu Koda is a poor man when compared to the immense wealth acquired by some other former Chief Ministers,several of whom are in office under the very dispensation that arrested Koda (because he was a political inconvenience to the government). Had every former Chief Minister been raided and investigated, it would have been a matter for congratulation. However, what the nation saw was a few being punished, while the many escaped.

The colonial laws still in force mean that the political leaders who took over from the British retain the vast powers that the aliens had. The Indian Police Act,for example,dates from 1863, and gives total control to the executive over the police. As a result,there are frequent transfers of police persons, a District Superintendent of Police serving an average of about six months before being shifted, usually because he or she annoyed a local politician. Because of excessive political control over the police force, efficiency suffers.It is a tribute to the resilience of the people of the Indian subcontinent that despite such drawbacks, most policepersons in India cheerfully work long hours, and with dedication. In most parts of the country, law and order is reasonably satisfactory, in large part because of the hard work put in by the police, whose personnel often work for 12-hour days with only a brief 20-minute break in between. If India is doing well despite its corrupt politicians the reason is the hundreds of millions of decent people in the country. Efforts have been made in the past to reform the legal system,so that it ceases to have the odour of colonialism. During 1998, a top lawyewr,Ram Jethmalani,was made Law Minister of India by Prime Minister A B Vajpayee. He quickly got to work fashioning changes in the legal case that would majke justice in India a paradise for the citizen rather than (as at present) for the lawyer. However, Jethmalani’s ewfforts at reforming the legal system led to his ouster from the Union Cabinet. There were too many powerful people who wanted the present legal system - with its delays and its multiple procedures - to continue. Today also,India has an efficient Law Minister, the writer and thinker M Veerappa Moily, but his efforts at reform too are meeting strong resistance from vested interests.

Unfortunately, rather than get simplified, laws in India are getting more complex and more restrictive. The Congress-led government that took office in 2004 and was surprisingly re-elected in 2009 has gone back to the period of the Nehru family rule, when there was a host of laws that controlled almost every aspect of a citizen’s life. Nehru regarded Indians as children needing firm parental control and he and his daughter Indira Gandhi presided happily over the colonial system of laws that places discretion in the hands of the state rather than the people. When the soft-spoken Narasimha Rao became Prime Minister in 1992,he tried to liberalism the system and take away powers from officials and politicians. Such efforts led to anger against him by the privileged with the result that - alone among Indian Prime Ministers - Rao was hounded when out of office and almost sent to jail on the basis of frivolous charges. Today, the Nehru era is back in fashion and since 2004,there has been a ceaseless expansion of the powers of the government.

Since 2004,the Income-tax department has been given back the draconian powers that it lost in the intervening 15 years. Other agencies of government have been strengthened. Efforts are obn to tighten state control of the internet, following the example of China. Movies and books are getting banned, or are prevented from completion, an example being a film that shows the romance between Edwina Mountbatten and Jawaharelal Nehru. The power of the state is reaching levels not seen since the 1970s,so it is small wonder that almost the entire media are singing hosannas to the present government. However, there has been a silent transformation of India. The new generation is aware of the rights of citizens in a democracy and is making its voice heard. Every available forum is being used to question the rulers as to their inefficiency in crucial issues such as a check on inflation. The Indian Middle Class has crossed 300 million and will soon reach 500 million. At that stage, colonial law will have to give way to democratic law, seven decades after India became a free country.

The people of the subcontinent are wise. They need not the dead hand of repression but the cool breeze of understanding. They need freedom in their lives and in their pursuits. Only then will Indians and Pakistanis be at home the super-productive people they are in countries such as the US.

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