The Jan Vishwas bill was recently passed and made into Law. It claimed to promote trust-based governance, ease of living and business, and enhancement of individual liberty. It attempts to do so by decriminalization of various offenses, periodic increase in penalties, and creation of new adjudicating officers overseeing penalties.
As the Bill has recently been passed, we do not have empirical evidence of the policies. While the bill claim to achieve a lot, it isn’t entirely clear whether it is up to the challenge. There are also certain interesting changes made by the Jan Vishwas Bill, which may not entirely come under the ethos of the Bill. A critical analysis of the Bill, with arguments and evidence from various sources will helps us understand it better, and point out any possible concerns and flaws in the Bill.
Jan Vishwas simply translates to “a belief in people”. It seeks to promote trust-based governance for ease of living and ease of business. The Bill was introduced against the backdrop of various factors. Reports by the Company Law Committee (2019 and 2021) and the Standing Committee on Commerce (2015) advocated increasing ease of business. They recommended a “re-categorization of certain compoundable offences to civil wrongs carrying civil liabilities and certain other changes to facilitate and promote ease of doing business and ease of living”. The Company Law Committee included representatives from across the industry who contributed their insights.
Hence, On December 22, 2022, The Jan Vishwas (Amendment of Provisions) Bill, 2022, was introduced in Lok Sabha. It amends 42 Acts, and, decriminalizes some offences and reduces the compliance burden on individuals and businesses. The Joint Parliamentary Committee chaired by Mr P.P. Chaudhary, submitted its report on the Jan Vishwas Bill on March 17, 2023. The Bill was recently passed in Lok Sabha on July 27, 2023.
The various sectors affected by the amendments include media, publication, environment, agriculture, banking, etc. Certain notable acts to which amendments are recommended include, The Motor Vehicles Act, 1988, The Railways Act, 1989, The Environment (Protection) Act, 1986, The Air (Prevention and Control of Pollution) Act, 1981, The Press and Registration of Books Act, 1867, Indian Post Office Act, 1898, etc.
Decriminalization of offences
Certain offences, which earlier resulted in imprisonment or a fine, now only incur a penalty for the offenders. This decriminalization has occurred across various bills such as the Patents Act, 1970, High Denomination Bank Notes (Demonetization) Act, 1978, The Copyright Act, 1957, etc. This decriminalization is undertaken to ensure ease of living and business, as a fine or imprisonment incurs court proceedings and limits the freedom of the offender. Whereas, a penalty may only result in a monetary payment to the concerned authorities, thus decreasing other legal and administrative hassles that the offenders may have to deal with.
One example is the Decriminalization of Section 72A of the Information Technology Act, 2000. This replaces a provision to imprison the offender for three years, or a fine which may extend to five lakh rupees, or both, with a penalty that can extend to twenty-five lakh rupees.
Periodic increase in fines and penalties
As per the bill, “the fines and penalties provided under the various provisions of the enactment”, “shall be increased by ten per cent of the minimum amount of fine or penalty”, after every three years of the commencement of this act.
Appointment of Adjudicating Officers to decide penalties
It empowers The Central Government to appoint an adjudicating officer, to hold inquiries into the offences and, prescribe and impose the appropriate penalty. The adjudicating officer is allowed to “summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document” which may be relevant to, the subject matter of the inquiry”.
The adjudicating officers can be appointed under several Acts, including The Agricultural Produce (Grading and Marking) Act, 1937, The Air (Prevention and Control of Pollution) Act, 1981, and the Public Liability Insurance Act, 1991.
There is also an option in certain Acts to appeal against the decisions made by these officers. For example, in the Agricultural Produce (Grading and Marking) Act, 1937, any aggrieved person may appeal “to the Agricultural Marketing Adviser, Government of India within thirty days from the date on which the copy of the order made by the adjudicating officer is received by the aggrieved person.
The potential impact of this policy is manifold.
- It can allow firms and citizens to navigate business and everyday concerns without the threat of excessive punishment or imprisonment. This ease of mind will – theoretically – allow them to work efficiently.
- Furthermore, the trust that the government puts in the citizens can have several positive aspects. The costs of legal and administrative issues may potentially decrease. This is a much-needed solution, especially considering the burden of cases on our legal system.
- Imprisonment also leads to higher costs in the prison system. Considering the state of our prison system and the overflowing cells, reducing unnecessary imprisonments will ease the pressure on it. Thus, decluttering and destressing the system will only improve the efficiency of our government processes.
- The increased regulations and policing of the State and its machinery may often lead to a chasm between it and its citizens. Increased trust and power with the citizens allow them greater self-determination and liberty in their everyday lives, which may also improve the relations between the citizens and the State.
- Certain elements of the bill are unusually productive and creative. For example, an Environmental Protection Fund was created to keep all the penalties collected under the Environment (Protection) Act, 1986 and Air (Prevention and Control of Pollution) Act, 1981. The funds shall be used to promote awareness and research for the protection of the environment and to fund the finances involved in enforcing the two bills.
The Bill aims and promises a lot. Its goal towards ease of business is well-intentioned, especially considering the excessive regulations and hindrances to industry and trade in various parts of the nation. Similarly, the Government may often engage in excessive use of power which may be detrimental to the well-being of society. Putting the trust in the citizens while simultaneously taking excessive regulatory power away from the government. Nevertheless, it doesn’t mean that the bill is without its flaws. Examining various issues and aspects of the bill critically may allow us to understand the situation better.
The ambiguous description of the term “minor offences”
Inexact descriptions of terms used in bills and laws may allow the executors of aforementioned bills to have larger leeway on the interpretations of the bill. The term ‘minor’ may be one such concern. Defining minor offences becomes an important task as certain acts which have been decriminalized under the condition of them being minor, may not fall under the category of a “minor offence”. An offence can be considered to be minor when there is no excessive harm to society, or, the social danger is negligible.
One such example may be, the omission of section 68 of The Copyright Act, 1957. It penalizes the act of “making false statements for the purpose of deceiving or influencing any authority or officer.” Similarly, Section 121 of the Patents Act, 1970 which penalizes the usage of the words ‘patent office,’ was omitted. Hence, any criminal who wishes to imitate the patent office can do so without sufficient legal repercussions.
A similar effect is also seen in the omission of Section 108 of the Trade Marks Act, 1999, with respect to the ‘Trade Market Office’.
These are by no means, non-serious crimes. They may pose more than negligible danger to society, and can’t be reasonably considered a minor offence.
While, I do not aim to make a prescriptive claim on what will be the correct punishment for these crimes, categorizing them as minor crimes may not be appropriate.
Irrelevant changes and omissions
Along with the examples above, several changes in the bill may not be relevant to its stated intent. One such example is the omission of Chapter X of the Indian Post Office Act, 1898. This omission effectively removes penalties on – theft, dishonest misappropriation of postal articles; opening, detaining or delaying postal articles; fraudulently preparing, altering, secreting, or destroying the Post office documents; and much more.
These changes do not improve or ease business. On the contrary, it will quite possibly obstruct it, and increase crime in these specific areas. This gets us to two larger issues regarding the Bill.
Increased chances of crime and inefficiency
The aforementioned changes effectively make it legal to commit all sorts of crimes which are detrimental to the social fabric and obstruct ease of living and business. While decriminalization may be well-intentioned, it may inadvertently give rise to more crime, with a lesser focus on them. The priorities of the police and administrative system may steer away from these crimes, hence, reducing response capacity.
Disproportionate advantage of the economically well-off and the cost of business
This is arguably one of the largest disadvantages of all. A lot of rationalization and decriminalization have occurred in various industries, which has converted imprisonment and fines into penalties. As this legal threat has vanished, companies may be emboldened to cut corners. Proponents of the Bill may point towards the hefty penalties being charged against various crimes as a counter. This is short-sighted, considering there are several corporations and individuals in this nation for which penalties of a few lakhs are negligible.
The gains to be made by cutting corners in the long term may far outstrip their penalties. Thus, the penalties may end up being considered as a “cost of business”, which has to be paid to ensure business as usual is ensured. This gives an extra edge to the economically stronger parties to extract more profit and increase margins in the long term when compared to their poorer counterparts.
The problem further worsens considering laws like the Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 are being impacted. While some useful changes have been made, the omission of imprisonment as a punishment under certain sections may reduce the necessary deterrence effect of the law. Considering the worsening of climate and the onset of Global warming, the danger is existential and the value of the environment can’t be merely captured and compensated through monetary compensation. The deterrence effect of the threat of imprisonment is much needed in such cases.
Privacy Issues due to the changes to the Indian Post Office Act, 1898
As mentioned before, the omissions of the Indian Post Office Act, 1898 are a cause for worry, and, arguably irrelevant when compared with the legislative intent of the Bill. A larger issue is the privacy of postal deliveries and their contents. Under this Bill, the penalties imposed upon individuals other than postal officials, who may access, steal, or damage the contents, are removed. While the Indian Penal Code may cover some of these violations, it only does so in the case of theft or misappropriation. Deletions of these sections of the law may be considered an infringement of the citizen’s right to privacy.
Necessity and competence of Adjudicating officers
The adjudicating officers appointed in various departments often carry out a role which may often mirror that of their judicial counterparts. Thus, the adjudicating officers, who may be a Joint Secretary to the central government or Secretary to the state government, may not be considered fit for the role. Furthermore, the technical aspect of assessing environmental damage may be another complication. The role of the pollution control boards in assessing environmental damage remains ambiguous under this Bill.
Excessive influence of the executive and the political class
The Bill outlines certain measures and penalties to be taken in case the offender is a Government entity. The Adjudicating officers are also Government officers, hence, their capability to be independent and fair must be considered and questioned. Despite the excessive burden on the judicial system, its relative independence from the executive makes it a more reliable, impartial adjudicator for such matters. There’s a possibility of conflict of interest in the current system, which must be avoided.
The concerns at the heart of this bill are very much important to the nation. Nevertheless, this doesn’t mean that the Bill can meet those concerns. Theoretically, it can be argued that rationalization and decriminalization should allow ease of business and other advantages. But this requires further analysis to ensure that the offences that are being rationalized and decriminalized are the ones that need it.
Rationalization and Decriminalization are good steps to decrease the burden on the legal system and allow ease of living. But, an excess or improper application of these measures may backfire on the Government. As it was pointed out in the critical analysis of the Bill, the Bill often decriminalizes and rationalizes certain offences that may be unnecessary to its legislative intent. The potential harms of this bill are numerous, including breach of privacy, fraud, crime, incompetence, etc. The cascading effects of these harms may often erode any ease of living that the positive aspects of this bill might bring.
A lack of threat of appropriate punishment in specific offences may worsen the situation. The asymmetric power wielded by larger firms and individuals in the form of money and political influence may incentivize them sufficiently to break the trust bestowed upon them by the government. Thus, trust-based governance may often have limits in terms of the capacity of the government to ensure that the citizens abide by the law. These limits can be easily exploited by strong entities. Hence, one must be careful in establishing such trust-based relations in highly asymmetric conditions.
Certain reforms in the economy may lead to the appropriate changes we need as a nation. This can include the empowerment of SMEs, a crackdown on corruption, a reduction of the bureaucratic and excessively regulatory nature of the system, etc. Progress towards ease of living and business will require us to move beyond the punitive nature of our bureaucracy into a better trust-based governance system. Some steps like the digitization of Government services, tax reforms, and improvement in FDI-related policies have already been taken across the nation.
While it is necessary to reduce the burden on the legal system to allow it to function better, but to shift specifically judicial roles and functions to the executive is a cause for concern. The efficiency and effectiveness of the executive in carrying out such tasks is doubtful.
Moreover, this shift of responsibility from the judiciary to the executive comes in the backdrop of an increasingly centralized Government which has been attempting to influence the judicial system over the last decade. This was seen in the various tussles between the courts and the Government, in the short-lived amendment to the Constitution to establish a National Judicial Appointments Commission, which would allow the executive to play a strong role in judicial appointments.
The Government has also been similarly delaying appointments and promotions in the courts, thus, delaying judicial processes in the face of an increasing burden on the system. The solution arises in the form of an increase in the power and resources of the courts to better serve the nation and its interests.
Similarly, going further back in the causal chain of crime and punishment, social welfare programs, and rehabilitation schemes may often significantly reduce the future burden on the prison and legal system. This perspective fulfils the goals of the bill in a more humane, sensible manner, albeit at a potentially higher economic cost in the short run. Providing citizens with the means to survive and prosper increases their individual liberty and self-determination in a more meaningful manner when compared to this Bill.
Furthermore, Jan Vishwas can only exist when the public itself is allowed higher access to the Government’s decision-making and policy issues. The Joint Parliamentary Commission established to review the Bill itself didn’t invite any public comments. Across nine sittings, it primarily heard from the representatives of the ministries and departments.
The problems that this bill tries to address are a symptom of larger pervasive systemic issues which must be confronted alongside other policy options to best solve them.
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Garvit Gupta is an intern at IMPRI. He is a second year student at Ashoka University pursuing Economics Honours. He is deeply interested in philosophy, political theory, sociology, political economy, etc.
Acknowledgement: Author would like to extend my heartfelt thanks to Swetha, srinitya, chaitanya and bhanvi for their tips and edits. I would also like to thank Dr Arjun Kumar for his caring guidance and support.
Disclaimer: All views expressed in the article belong solely to the author and not necessarily to the organization.
This article was posted by Mansi Garg, a research intern at IMPRI.
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