Jan Vishvas Act, 2023- An Attempt to Transition from Punitive to Trust- Based Regime
“Frauds, mala fide actions and criminal activities by businesses deserve the strongest measures. However, for legitimate technical or procedural lapses of non-serious nature, civil liability is adequate as a deterrent rather than imprisonment”- The Handbook on Writing Cabinet Notes for the Jan Vishwas Bill, 2023
Creating a conducive business environment requires dynamic reform exercises streamlining the existing regulations, and eliminating cumbersome procedures. It also necessitates modifying criminal provisions and ensuring that citizens, businesses and the government departments operate without fear of imprisonment for minor technical and procedural defaults. The Jan Vishwas Act, 2023 is one such step taken in this direction. Spearheaded by the Department for Promotion of Investment and Internal trade (DPIIT), Ministry of Commerce and Industry, it paves the way for rationalizing laws, eliminating barriers and bolstering growth of businesses. The 108-page act covers plethora of legislations ranging from the Boilers Act, The Aadhar Act, 2016, the Legal Metrology Act, 2009, to the Collection of Statistics Act, and The Food Safety and Standards Act, 2006, among various others.
Though it calls for decriminalising 183 provisions in 42 Central Acts, covering the domains of environment, agriculture, industry, and technology, experts argue that the Bill represents ‘quasi-decriminalisation’. Often seen at odds with the ‘Bhartiya Nyaya Sanhita, 2023’, erstwhile known as the Indian Penal Code, the bill fails to define ‘criminal activities’ or what constitutes ‘non-serious nature’ of crimes, leading to ambiguity and confusion. The impact of these vagaries can be better understood from the following examples:
- Section 27(d) of the Drugs and Cosmetics Act, 1940 criminalises the breach of licence conditionsby proprietors of pharmacies. This includes a failure to both, employ pharmacists to dispense medicines and to store drugs as required. Yet, the Jan Vishwas Act converts Section 27(d) into a compoundable offence, i.e. on paying the fine of Rs. 20,000, first-time offenders can avoid the minimum prison term prescribed in the provision. This has the potential to lead to complacency, prescription errors, and storage of degraded drugs lacking efficacy.
- Section 52 of “Chapter X” of the Indian Post Office Act, 1898, punishes postal officers for “theft, misappropriation, destruction, or throwing away of postal articles” with imprisonment up to seven years and a fine. Similarly, Section 53 punishes postal officers for “opening, detaining or delaying postal articles” with imprisonment of two years or a fine, or both. Under the Jan Vishwas Act, absence of these measures can significantly breed corruption, inefficiency, and dishonesty.
- Section 4 and 5 of the Agricultural Produce (Grading and Marking) Act, 1937 criminalised the unauthorised use of and counterfeiting any “grade designation mark” notified under this law with imprisonment of six months and a fine not exceeding Rs. 5,000. Basmati Rice Grading and Marking Rules, 2013 provide for grading as per industry standards. These certifications are meant to act as a guarantee that a particular agricultural product complies with certain standards under Indian law. The Jan Vishwas Act has decriminalised both the above provisions by doing away with imprisonment as a punishment and increasing the fine to Rs. 15 lakh. This is surprising because the misuse and counterfeiting of grade designation marks is the equivalent of defrauding and cheating consumers of their money by making them pay more for inferior quality goods. This is also at loggerheads with the ‘Consumer Protection Act, 2019’ which upholds the principle of ‘Consumer is the King’
Further, in a country like India, which for the most part is a carceral state, any talk of decriminalisation would usually be a reason to celebrate. Except that the Jan Vishwas Act, 2023 has been hijacked by powerful lobbies for their own interests. For example, the pharmaceutical industry managed to get a key penal provision in the law, that punishes manufacturers of sub-standard drugs, placed in the list of compoundable offences. This indirectly allows manufacturers to indulge in unscrupulous activities and escape imprisonment by paying a paltry fine. Similarly, the bureaucracy in the Ministry of Communications managed to get the whole of “Chapter X” of the Indian Post Office Act, 1898 deleted from the law. The choice of such provisions does not augur well with the government’s claim that they will improve the “ease of doing business” in India. Similarly, the impugned act reduced the punishment provided by the Information Technology Act of 2000, on disclosing private information in violation of a lawful contract. This endangers ‘Right to Privacy’ as enshrined under Article 21 of the Indian Constitution. Further, the act creates an Environmental Protection Fund for education, and research for environment protection, effectively creating an overlap between its purpose and that of existing funds of the Pollution Control Boards. The reason for these measures sailing through our Parliament is a chaotic and opaque parliamentary process which excluded the citizenry and civil society from participating in discussions. Shockingly, it was only the bureaucracy which was included, lacking the requisite technical and judicial skills to decide upon the merits of the bill and what is good for the people. Ultimately, this has the potential to lead to a divergent justice system where conflicting laws are at loggerheads with the parliamentarians’ promises, claims and dreams envisaged for our country. Instead of ridding the system of its evils, the bill may provide them with a new impetus and legal backing.
This far-reaching policy action- Jan Vishwas Act 2023, though passed with the objective of ease of doing business, has unfairly tipped the scales in favour of some business concerns. This kind of decriminalisation will ultimately breed lawbreaking, fudging, and incompetency in the system, already riddled with these ever-present challenges. Tooted as a game-changer for a rising India, its unravelling should be observed with caution, lest it allows lawlessness to prevail, ultimately affecting the citizenry.
*