On 19 September, 2019, there was a big strike organised by public transport workers across Delhi and other parts of India, to protest against the amendments recently made to India's Motor Vehicles Act [MV Act]. The main cause for the protests, I am led to understand after speaking to several cab and auto drivers and reading the news, is the enhancement of penalties that the amendments have brought about.
In fact, the outcry over steep fines has been in the news for some weeks now. Many states, including those that have BJP led governments, have also refrained from giving full effect to these provisions of the new law because of the perceived voter-backlash that such a move will generate.
Such protests over changes in laws are rare in India nowadays — the demonetisation of high value bank notes of 2016 met with a whimper of protest — which is why protests over the MV Act, by the people and by state legislatures, demand attention. I think a closer look at this legislative process tells us a lot about legislative processes generally, and specifically about the apathy surrounding criminal law.
The Rationale for Steep Fines in the MV Act Amendments
This is a simple one. The Central Government has consistently maintained that higher fines in the MV Act will serve as a deterrent to bad driving and help increase road safety. Going by the numbers on road safety in India, which confirm that it is as poor as one might suspect, it is difficult to argue that such deterrents are unnecessary. Which is why, perhaps, most states also agreed with the Centre during deliberations that the higher fines are a good idea.
The regular argument against deterrence in the criminal justice system is that it can't be measured and so it doesn't exist. That claim might work for valuing deterrence in specific cases, but most of these accounts also agree that there certainly is a general deterrent effect that penal laws have and this helps to improve obedience to law at a macro level. Higher penalties for breaking road laws, I think, certainly achieve this general deterrence.
Moreover, higher fines will also work better than, say, higher punishments in criminal laws such as enhancing the punishment for rape to a death sentence. The reason here is the immediacy of inflicting punishment. The traffic police can fine you on the spot, immediately after you break the law. Whereas the death sentence is not going to be delivered until the criminal process runs its course lasting years. This is another reason why I think general deterrence might be more probable for traffic norms and increase compliance.
The Argument against Steep Fines in the MV Act Amendments
Considering everyone cares about road safety — well, almost — it is difficult to argue against a law designed to increase this. Which is why the primary argument has not been against high fines, per se, but that high fines alone are not going to do anything.
How do detractors pull the carpet from under the Central Government's justifications? They point to the architecture that governs road traffic. First off, you need decent roads. If you have this, then you also need functioning traffic lights, clearly marked lanes, lower jaywalking, and a higher standard of basic driving sense for getting a license. Unfortunately, for most parts of India, none of the above are true. Rather than continue the slow slog towards improving this architecture, and get ground up to a higher standard of road safety, it is argued that the Government is imposing top-down reform as it is wont to do.
This criticism only travels a certain distance, because why can't the Government also increase fines as it continues the slow slog towards improving road safety from the ground up. Understandably this is not being touted as the main reason behind the protest against the high fines either. That main reason, according to whoever I have spoken to, is distrust of an authority that has historically been known for its corrupt and arbitrary enforcement of traffic laws.
That almost all states in India do not have enough police officers is a known fact, and the same truth applies to numbers of traffic police in the states. These limited traffic cops simply cannot man every traffic light and patrol every road, and the insufficiency in numbers necessarily breeds arbitrariness in how laws are enforced everyday and thus takes away from any general deterrence that might have been possible. Granted, this might change with the increasing use of CCTV cameras to catch cars speeding, but the core arbitrariness of enforcement will remain.
Besides arbitrary enforcement, the other problem is the manner in which the laws are enforced. Many adult Indians have stories about having gotten off easy when caught by traffic police. Higher fines only go towards allowing the police to charge higher rents for a stay on execution, rather than make us more compliant with the law.
What links the MV Act protests to the absence of protest against Regular Criminal Law?
The arguments levelled against high fines can almost entirely be used for the criminal legal process in India at large. The systemic problems faced by road traffic norms are similar to that of the criminal justice system breaking under its own weight because of caseloads that run into crores, making all cases move at a snail's pace. And the problems with traffic police enforcement being arbitrary and corrupt are fully applicable to the criminal law more broadly.
I would argue that what links the protests against MV Act amendments to absence of protest when laws are passed with similar effects — say, passing Section 66-A of the IT Act or diluting criminal procedure guarantees for accused persons — is the idea that the criminal law will not apply to "us" but to "others".
The mere act of driving places people in peril of facing hefty fines, because the regular way of driving is totally removed from how the law might require a person to drive. This makes notions of "us" against "them" disappear without requiring any great mental effort. But the same can't be said for criminal law, where the idea of "othering" is writ large. The idea that Section 66-A would only hit provocateurs and not ordinary people made it easy to ignore the same problems that lay at the heart of that legal zombie and the fact that they could potentially be used to wantonly arrest anyone. The idea that "criminals" should not have a broad right to silence can even make the Supreme Court forget that there is no pre-defined criminal class and that such measures ultimately render everyone more susceptible to abuse of police power. Today, the same notion of othering is perhaps why the UAPA amendments that allow the state to brand anyone a "terrorist" can pass through without any protest.
Until those of us interested in criminal justice reform can make it loud and clear that these notions of "us" and "them", of predefined criminal classes for whom harsh laws are justified, are bogeys, it will be impossible to prevent new variants of the same oppressive, liberty-stifling laws, from being passed no matter how many times a court strikes them down.
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