Rational Expectations: Bad laws will come back to haunt us

Just like the sedition law and that on retrospective tax, the new laws on digital media open up the possibility of abuse

As long as this law remains on the statute, as is evident from arrests made by governments headed by various political parties at the Centre and in the states, politicians will continue to abuse it.
As long as this law remains on the statute, as is evident from arrests made by governments headed by various political parties at the Centre and in the states, politicians will continue to abuse it.

While information and broadcasting minister Prakash Javadekar has tried to reassure digital news publishers of the government’s intentions, he would do well to rescind the new laws. The government, in all likelihood, brought in the new laws to curb the publishing of scurrilous news—indeed, downright fake news in many cases—by organisations of dubious repute, but once the laws are in place, they are prone to abuse.

And even if the present government is careful not to use this to censor genuine news organisations—their digital arms, to be precise—once the statute is in place, it is almost certain to be abused since the last level of the three-ringed grievance redressal mechanism being planned is an inter-departmental government committee and, since digital publishers have been brought under Section 69 of the IT Act, this allows the government to ask for the removal of content even before a judicial process declares it fake or libelous.

Indeed, this the reason why the Modi government has itself scrapped thousands of old laws. In the case of labour laws where sweeping changes have been made over the past few months, for instance, some of the compliances that industry had to deal with included complying with the gap between machines and even the quantity of drinking water in a factory that was specified by the authorities? So, why did Modi scrap them? Because, if they remained on the statute, someone could use them to harass industry. And while there is just so much harassment that such a law could be used for, the sedition law is a classic example of horrific abuse since it involves prison sentences.

There is almost no politician who, while in Opposition, has not railed against the abuse of the sedition law as a relic of a colonial government but, when in power, they have used the same law to lock up people for crimes that cannot possibly be termed seditious. In the case of environmental activist Disha Ravi who was jailed for sedition in the Red Fort case, while granting her bail, the sessions court said, “Citizens are conscience keepers of government in any democratic nation. They cannot be put behind the bars simply because they choose to disagree with the state policies. The offence of sedition cannot be invoked to minister to the wounded vanity of the governments”.

And in the case of a petition seeking action against former J&K chief minister Farooq Abdullah, the Supreme Court recently said, “expression of views which are different from the opinion of the government cannot be termed as seditious. It cannot become sedition only because one has a different view”. As long as this law remains on the statute, as is evident from arrests made by governments headed by various political parties at the Centre and in the states, politicians will continue to abuse it.

The issue of Cairn Energy trying to enforce its arbitration award by filing cases to attach India’s assets in various countries is the result of another pernicious statute that has remained on the books for too long. When the Narendra Modi government first came to power in 2014, it promised to remove the UPA’s retrospective tax; a tax that it had repeatedly categorised as an instrument of tax terrorism. But instead of striking it off the statute, then finance minister Arun Jaitely looked for a kind of half-way house where he promised not to use the statute while accepting whatever court/arbitral rulings there were on existing cases.

As is well known, the government has gone back on this promise in the case of both Vodafone and Cairn; indeed, since the statute remains on the books, finance minister Nirmala Sitharaman has said that she has said it is her duty to appeal the arbitration that went in favour of Cairn. It is clear Jaitley erred in allowing the statute to remain on the books and, in the long run, India will pay the price for this as investors will remain wary of government promises; nor it is ruled out that some future government will not try to use this statute to levy taxes on unsuspecting firms.

The instrumentality-of-state rule that flows from Article 12 of the Constitution is another critical flaw that, because it has not been corrected, continues to cripple the operations of PSUs. Since PSUs are considered an “instrumentality of state”, they have to behave exactly like the government would do in the sense of offering the same opportunity to everyone. So, unlike a private firm that can award an order/contract to anyone, a PSU needs to issue public tenders for most of their procurement. That is the main reason why, while private sector firms tend to be more agile, PSUs tend to be a lot slower to respond to any market situation.

The government—this one as well as those in the past—could easily have approached the Supreme Court to rectify this, by arguing that this definition should not apply, at least in the case of PSUs that are competing in the market. After all, if a PSU is buying something at higher than the market price—that’s how corruption comes in—it will not survive; in which case, the marketplace is what is keeping the PSU honest. But since this was never challenged, PSUs remain hobbled.

There are several other such examples of how bad laws, if not removed quickly, come back to haunt governments and society; in the case of the digital news media rules, however, it is not old bad laws that are not being rescinded, it is new bad laws that are being introduced.

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