Our Parliamentary system inherited from the British ensures that legislation is largely government-driven: there is no provision for Opposition parties to introduce Bills and try to get them passed into law. Individual Members of Parliament, however, can do so, using the provision of what’s known as Private Member’s Bills.
Every Friday afternoon is usually reserved for MPs to try and bring forward their own proposals for new laws. Tomorrow, Friday the 18th, I will be using this mechanism to introduce three Bills that, if adopted, could create a more liberal legal framework for India.
Shashi Tharoor’s Legislative Plan
- Redefine the 1870 “sedition” law to include only words and actions that are a direct incitement to violence
- Introduce a refugee and asylum law that will reflect the leading role India has played in sheltering those fleeing persecution
- Amend Section 377 of the Indian Penal Code, which criminalises consensual sexual acts between consenting adults
Protecting the Right to Dissent: Redefining Sedition
The first is to redefine the draconian concept of “sedition” – another pernicious British legacy, enacted as an offence in 1870 to suppress any criticism of British policies.
Under section 124 A of the Indian Penal Code, any person who uses “words, signs or visible representation to excite disaffection against the Government” can be charged with Sedition and potentially sentenced to life.
Sedition became an instrument to terrorise Indian nationalists: Bal Gangadhar Tilak, Annie Besant, Jogendra Chandra Bose, and Mahatma Gandhi were amongst the first prominent figures to be charged with sedition.
Both Gandhiji and Nehruji wanted the law abolished, but though the Founding Fathers did not mention it in the Constitution, they failed to take it off the books. It remains a crime to this day, liable to be misused by an intolerant Government against legitimate dissent.
My Bill would only allow an individual to be charged for sedition when his words or actions directly result in the use of violence or incitement to violence or constitutes an offence which is punishable with imprisonment for life under the Indian Penal Code – like culpable homicide, murder, or rape.
Mere words or signs criticizing the measures or administrative actions of the Government will not constitute sedition.
The amended law will promote the freedom of speech and the right to express dissent against the Government, while ensuring safeguards against the use of words to incite violence. Nehruji had stated of sedition that “the sooner we get rid of it, the better”. The UK has taken his advice but India hasn’t. It’s time we did.
India’s Hospitality to Refugees Reflected in the Law
My second Bill would create – astonishingly for the first time – a Refugee and Asylum Law for India. It’s not that we have failed to protect refugees: India currently hosts more than two hundred thousand refugees and has long been at the centre of refugee movements in the South Asian region, having welcomed millions of people fleeing Bangladesh, Nepal, Pakistan, Sri Lanka and Afghanistan over the years. But bizarrely, India is neither a signatory to the 1951 UN Refugee Convention, nor does it have a domestic asylum framework.
We look bad in the eyes of the world even though we have nothing to be ashamed of in practice. My Bill consolidates the prevalent executive policies, judicial pronouncements, and international norms. It lays down comprehensive criteria for recognizing asylum seekers and refugees and also prescribes specific rights and duties accruing from such status.
The right to seek asylum in India will be available to all foreigners irrespective of their nationality, race, religion or ethnicity, and the Government cannot send anyone back to a country where his or her life would be in danger.
The Bill will constitute a National Commission for Asylum which will receive and decide all applications of asylum. India has been, and continues to be, a generous host to several persecuted communities, doing more than many countries who are signatories to the UN Refugee Convention. The bill, if enacted, will put India at the forefront of asylum management in the world. It will finally recognise India’s long-standing and continuing commitment to humanitarian and democratic values while dealing with refugees and establish a legal framework that codifies, maintains and uplifts standards for treating those who have lost everything, but their human rights in a humane country.
Section 377: An Archaic Provision That Must Go
Finally, my third bill would amend the notorious Section 377 of the Indian Penal Code to decriminalize sex between consenting adults of any gender or orientation. The Delhi High Court had already found this provision unconstitutional in 2009, but the Supreme Court, in its wisdom, struck down this ruling in December 2013, preferring to bounce the ball back to the legislature.
Section 377 of the Indian Penal Code was enacted in 1860, and criminalises ‘carnal intercourse against the order of nature’ – a term so archaic that it would invite derision in most modern societies. Section 377, in so far as it criminalises consensual sexual acts of adults in private, violates the fundamental rights guaranteed under Article 21 (life and liberty, including privacy and dignity), 14 (equality before law) and 15 (prohibition of discrimination) of the Constitution of India. Even Finance Minister Arun Jaitley recently acknowledged that “this provision must go sooner or later”. I prefer sooner to later.
Since some conservatives allege that scrapping Section 377 will open the floodgates to pederasty, homosexual rape and bestiality, my amendments make it clear that only consensual sexual relations between consenting persons over 18 will be decriminalized. Rape and sex with a minor would continue to be crimes, attracting punishment under the laws of the land irrespective of the gender of the victim.
Taken together, these three laws would end some of the colonial-era provisions most liable to abuse, as well as create a liberal legal framework for a 21st century India. I have no illusions that their adoption will prove easy: only 14 private member’s bills have ever been adopted in Indian legislative history, the last in 1970 (though Tiruchi Siva’s Rights of Transgender Persons Bill has been passed by the Rajya Sabha last April and faces no resistance in the Lok Sabha once it is introduced there).
Let us hope these three might be added to the list – or, as often happens, are adopted by the Government as official legislation. Either way, it is time to bring the Indian Penal Code into the 21st century.
(Former UN under-secretary-general, Shashi Tharoor is a Congress MP and author)
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