The death penalty ordinance is yet another example of ‘lawlipop politics’

Prime Minister Narendra Modi and BJP President Amit Shah | PTI Photo by Vijay Verma

The new political formula is, if you can’t redress a grievance, feed the popular blood-thirst. If you can’t solve a problem, fool the people with yet another law.

The BJP government has promulgated a hurried ordinance to grant the death penalty to rapists of children.

This won’t solve the problem, or reduce the incidence of that ghastly crime. Just as the much tougher rape law passed (almost) on the streets, without due debate in Parliament or scrutiny by any of its committees, didn’t discourage rapists, going by the rise in reported numbers.

What it does, though, is help calm immediate citizen anger. The new political formula is, if you can’t redress a grievance, feed the popular blood-thirst. If you can’t solve a problem, fool the people with yet another law. This is what we call ‘Lawlipop politics’.

We had taken note of this when the UPA, greatly weakened by 2013, was flailing over the Criminal Law (Amendment) Bill in the wake of the Nirbhaya case. Ever since the rise of Anna Hazare, the UPA had embraced the idea of drafting serious laws at gunpoint.

Sometimes it was given deadlines by others, notably Hazare, while on Nirbhaya it set a deadline for itself. Shocked, awed, and, most importantly, embarrassed over its own incompetence in dealing with the aftermath of the Delhi gang rape, it first set up a committee under retired Justice J.S. Verma to suggest a new draft law in 30 days. And when he did submit that draft, in fact, a day short of the deadline, the government promulgated an ordinance after making some arbitrary, hurried changes.

Litany of unresolved issues

We know human beings can do the most incredibly stupid things in panic. But you would have expected that a government consisting of so many thick-skinned political veterans would have at least used the submission of that report to buy some time, to circulate it for wider discussion — a bit wider than in that weekend’s TV talk shows — and waited for the Parliament session less than a month away. With the ordinance, it set a deadline for itself: It either passes the law in Parliament now, or the ordinance lapses, bringing back the combined wrath of news TV and activists.

This is precisely what Narendra Modi’s BJP-led NDA government has done now. More remarkably, it’s been done in response to popular outrage over a crime that attracts the death sentence even under current laws, as the child was allegedly murdered after rape.

Now, with an ordinance issued, there is no choice but to pass this law within a deadline, however imperfect, hasty and un-debated. What’s the hurry, nobody asked. Who promulgates overnight ordinances on what is, after all, a new criminal law? It is not as if a war was on and you needed to amend the Defence of India Rules to plug some dangerous loophole. In any case, a new law would not apply to a crime that has already taken place. And while we know it is risky to raise such questions in these times, do you really think the horrible men who brutalised that child would have had second thoughts if such a law had existed?

In the case of the UPA, you could at least say it was a weak government taken by surprise. It railroaded that ordinance in panic. But why did a strong NDA government have to do it? Only because it is the public-opinion template right now. If people have a grievance, give them another law.

This is a very serious law. And it is littered with issues that still remain gravely contentious: Most of all, how many death penalties should India be handing out now? And whether the death sentence gives rapists a motive to kill the child victim. These issues should have been debated over time, rather than be legislated on at gunpoint and left for future generations to cleanse.

A law for every ill

It is widely acknowledged that hard cases make bad law, which is exactly what is happening now. This law is several issues, laws, laments and, frankly, prejudices and ideologies, rolled into one. This is now going to be passed with a deadline imposed by that panicky ordinance.

Offering legislation in place of a political response to a crisis is the classic symptom of weak governance. Why is Narendra Modi’s full-majority government succumbing to it? We are expected to buy the argument that just the passing of this complex and hasty law will make India a better place for the female child, while it will still be implemented by a system of governance so lousy it could not even prevent one of the key accused in a case that had the world riveted (Nirbhaya), and which was the raison d’être of the 2013 rape law, from committing suicide in jail.

In the absence of police and judicial reform, this new law will have the effect of setting up thousands of ATMs across the country: At least one in each police station. It may or may not protect vulnerable children, but it will surely empower corrupt policemen.

The political class around the world knows the art of throwing lollipops to fools and calming down people angry with their inability to govern. In the UPA years, we said you should now spell lollipop as ‘lawlipop’. The government could not address rural distress, so it gave you a law for employment guarantee. It could not provide food for the hungry while the granaries were full, so it gave us a right to food law.

The message was: Go eat that law if a corrupt political-bureaucratic-contractor nexus steals your grain. If you look at the record of our Parliament in general, all ridiculous, unimplementable or bad laws pass without debate. Nobody wants to be on the “other” side of a populist bad law. As will happen with this death penalty ordinance.

A lesson from history

Civilised, mature democracies demand, and deserve, better governance. They do not enact bad laws in a hurry. It is easy to enact them, but it takes generations to rectify them. Remember, some of our most abysmal economic laws, which still bedevil our reform process, from killer amendments to labour laws to urban land ceiling, were enacted by Indira Gandhi’s illegal and unconstitutional Emergency Parliament in its sixth year (a six-year Parliament, the only time such a monstrosity has been inflicted on this republic). It has taken three willing Parliaments to repeal the urban land ceiling, but several states still hang on to it.

Politicians love bad laws that bring discretion and rent. And only bad Parliaments pass laws in a hurry. Note one fact: The record for the largest number of laws passed in a year, 118, is with the same six-year banana-republic Parliament of 1976, when the Opposition was in jail. Even the words ‘secular’ and ‘socialist’ were inserted in the preamble of our Constitution by the same illegitimate Parliament.

It is a digression, but maybe it isn’t, to recall the Constituent Assembly debates on precisely this issue. And Ambedkar’s brilliant explanation for dismissing such demands. The economic and social policies of the state, he said, “must be decided by people themselves according to time and circumstances”. He added: “It cannot be laid down in the Constitution itself, because that is destroying democracy altogether… you are (then) taking away the liberty of the people (in future) to decide what should be the social organisation in which they wish to live.”

He said, though the majority believed in socialism at the time, in times to come, “it is perfectly possible” that they might “devise a (better system) than the socialist organisation of today or tomorrow”.

This reading will tell you how brilliantly liberal and politically prescient the founders of our republic were. They established and gifted us a tradition of patient and thoughtful law-making. We have reduced it to a cynical, save-my-skin joke on our future generations.

A final question as I rest my case. How will the government respond if another such crime rocks India in spite of this law? A new law for public hanging? And next, mob-lynching as IS/Taliban do for adultery? Lawlipop politics is a slippery slope backwards.