Swarajya, August 21, 1965
Years ago when public men whom we revered and admired were being prosecuted for sedition, we used to condemn and ridicule the Government for the new Section 124-A which was introduced into Macaulay’s Penal Code. The old code laid down punishment for waging war or making preparations for waging war against the Government, but want of affection for the British Government was not made an offence. ‘Disaffection’ was the new basic element introduced in Section 124-A, and it was a great joke at the time in political circles that disaffection was authoritatively defined and accepted by the British Indian courts as “want of affection”. We used to ridicule the idea that normal Indian citizens were expected to show affection for an alien government, instead of recognizing the fact that affection for foreign rule would be unreal and abnormal.
Now under Swaraj the Government of India has asked the Law Commission to report on a proposal to include a new group of offences called “Economic Offences” within the purview of the Indian Penal Code, such offences to include anything “calculated to prevent or obstruct the economic development of the country and endanger its economic health”.
The “economic development of the country and its economic health” as conceived by a political party in power are sought, for the first time, to be made the test to decide whether a man is a good citizen and may remain out of jail, or should be imprisoned as an enemy of the State.
This notion is of course taken from Soviet law and practice. Want of affection for the Plans is practically to be treated as sedition. What is now sought to be made criminal in this proposal is something that is not an infringement of any existing law but an adverse attitude towards the economic policy adopted by the Government in power in the notion that it is good for the nation and its economic health. So what is criminal under one government may cease to be criminal if the government changes and another policy is adopted. The law of crimes will have to run, as it were, after electoral success. The inclusion of such a section in the Indian Penal Code, as has been proposed to the Law Commission, would be wholly contrary to the parliamentary system of democracy, which contemplates possible changes of economic policies as a result of each general election. It is a fallacy to hold that the ruling party’s economic policy is the permanent law of the land.
Years ago when public men whom we revered and admired were being prosecuted for sedition, we used to condemn and ridicule the Government for the new Section 124-A which was introduced into Macaulay’s Penal Code. The old code laid down punishment for waging war or making preparations for waging war against the Government, but want of affection for the British Government was not made an offence. ‘Disaffection’ was the new basic element introduced in Section 124-A, and it was a great joke at the time in political circles that disaffection was authoritatively defined and accepted by the British Indian courts as “want of affection”. We used to ridicule the idea that normal Indian citizens were expected to show affection for an alien government, instead of recognizing the fact that affection for foreign rule would be unreal and abnormal.
Now under Swaraj the Government of India has asked the Law Commission to report on a proposal to include a new group of offences called “Economic Offences” within the purview of the Indian Penal Code, such offences to include anything “calculated to prevent or obstruct the economic development of the country and endanger its economic health”. In particular, one of the proposals is to include not only evasion but also avoidance of taxes in the group of offences referred to. Avoidance is not the same as evasion. Evasion is a positive act contravening the tax law. But avoidance is to so arrange one’s affairs as legally to free a particular case from taxation and has not been treated as a crime anywhere in the British Dominions. The Government of India seeks now to make such arrangements a crime, by adding to the Penal Code new sections suitably worded so as to include them, and by placing the onus on the accused person to prove that they were not done to deprive the Government of tax revenue but for an object genuinely conceived for other reasons. In effect the Congress Government seeks to make it criminal for a man to dislike being taxed.
The “economic development of the country and its economic health” as conceived by a political party in power are sought, for the first time, to be made the test to decide whether a man is a good citizen and may remain out of jail, or should be imprisoned as an enemy of the State.
This notion is of course taken from Soviet law and practice. Want of affection for the Plans is practically to be treated as sedition. What is now sought to be made criminal in this proposal is something that is not an infringement of any existing law but an adverse attitude towards the economic policy adopted by the Government in power in the notion that it is good for the nation and its economic health. So what is criminal under one government may cease to be criminal if the government changes and another policy is adopted. The law of crimes will have to run, as it were, after electoral success. Such a law may be suitable in a government that has come into being as the result of a revolution and intends to continue in power even if shooting people down be necessary for the purpose. But it cannot be legitimate, or even consistent with parliamentary government, wherein changes of government and of economic policies are contemplated by the Constitution itself. The inclusion of such a section in the Indian Penal Code, as has been proposed to the Law Commission, would be wholly contrary to the parliamentary system of democracy, which contemplates possible changes of economic policies as a result of each general election. It is a fallacy to hold that the ruling party’s economic policy is the permanent law of the land. It can be questioned and made an issue at every general or bye-election. The Indian Penal Code cannot be enlarged to cover it.
