Criminal Law Reforms
2023 AUG 15
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Polity > Executive > Criminal justice system
IN NEWS:
- The Central government introduced three new Bills in the Lok Sabha that propose a complete overhaul of the country’s criminal justice system.
- The three Bills are set to replace the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872:
- The IPC, which was introduced by the British in the year 1860, is set to be replaced by the Bharatiya Nyaya Sanhita, 2023.
- The CrPC of 1973 will be replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023.
- The Indian Evidence Act of 1872 will be replaced by the Bharatiya Sakshya Bill, 2023.
- The Bills have been referred to a Parliamentary Standing Committee for reveiw and recommendations.
EVOLUTION OF CRIMINAL JUSTICE SYSTEM IN INDIA:
- Kautalya’s ‘Arthashastra’ and Manu’s code are earliest examples of law and regulations in the country. Here the ruler/king is identified as the source of law.
- In the medieval ages, Muslim Sharia laws prevailed in the country, with Quran as the source of law. Qazis were appointed to deliver justice.
- In British India, the Charter Act of 1661 granted by Charles II (1630-1685) made provision for the use of English criminal law in India.
- The codification of criminal laws in India was done during British rule, which more or less remains the same even in the 21st century
- Based on the 1833 charter act, the first Law Commission under the Chairmanship of Lord Macaulay prepared the Indian Penal code
- Lord Macaulay is said to be the chief architect of codifications of criminal laws in India.
- The Government of India Act, 1935 laid the foundation for the modern-day judicial system in India
- Criminal law in India is governed by:
- Indian Penal Code, 1860
- Code of Criminal Procedure, 1973 and
- Indian Evidence Act, 1872
- Criminal law is considered to be the most apparent expression of the relationship between a state and its citizens.
- Criminal law and criminal procedure fall under the Concurrent List while matters relating to Police and Prisons fall under the State List.
NEED FOR REFORMS:
- Colonial legacy:
- The criminal justice system is a replica of the British colonial jurisprudence, which was designed with the purpose of ruling the nation and not serving the citizens.
- Accommodate the evolving society:
- With the changes in the society, perspectives of people, and the nature of crimes, the laws need to evolve in accordance with the contemporary needs and aspirations of people.
- For example: IPC was enacted in 1860 >> not kept pace with the progressive times.
- Recognise new crimes:
- With changing economic developments and technological advances, many of the existing provisions have become obsolete and new crimes have emerged.
- For example, crimes like mob lynching, financial crimes, white-collar crimes, economic crimes, etc., have not found proper recognition in the IPC.
- Ineffectiveness:
- The purpose of the criminal justice system was to protect the rights of the innocents and punish the guilty, but nowadays the system has become a tool of harassment of common people.
- Pendency of cases:
- According to Economic Survey 2018-19, there are about 3.5 crore cases pending in the judicial system, especially in district and subordinate courts, which leads to actualisation of the maxim “justice delayed is justice denied.”
- Huge under-trials:
- India has one of the world’s largest number of undertrial prisoners.
- According to National Crime Records Bureau (NCRB)-Prison Statistics India (2015), 67.2% of our total prison population comprises undertrial prisoners.
- Simplification of the legal process and strengthen democracy:
- Reforms in criminal law are required to fulfil the democratic aspirations of the people and ensure speedy justice and simplify legal procedures.
- Remove ambiguity and vagueness:
- For instance, the distinction between ‘culpable homicide’ and ‘murder’ is criticized for their obscure definitions.
- ‘Culpable homicide’ is defined, but ‘homicide’ is not defined at all.
- Poor policing and crime investigation:
- Corruption, huge workload and lack of accountability of police is a major hurdle >> which need to be reformed.
- To ensure individual liberty against state arbitrariness:
- In a criminal justice system, since an accused as an individual is pitted against the might of the state, criminal law must ensure that the state does not take undue advantage of its position as a prosecutor.
KEY HIGHLIGHTS OF THE BILLS
1. The Bharatiya Nyaya Sanhita Bill, 2023
- This Bill, which seeks to replace the IPC by repealing 22 of its provisions, proposes changes to 175 existing provisions and introduces eight new sections. It contains a total of 356 provisions.
- The new provisions include:
- Section 109: Organised crime
- Section 110: Petty organised crime or organised crime in general
- Section 111: Offence if terrorist act
- Section 150: Acts endangering sovereignty, unity and integrity of India
- Various offences have been made gender neutral.
- The punishment for all types of gang rape will now include 20 years of imprisonment or life imprisonment. The punishment for the rape of a minor will include the imposition of the death penalty.
- Capital punishment has been introduced for the offence of mob lynching apart from the offence being made punishable with 7 years of imprisonment or life imprisonment.
- The Bill criminalises sexual intercourse under the false pretext of marriage or by deceitful means. A maximum of 10-year imprisonment has been proposed for the offence.
- The provision legalising marital rape has been retained. However, the provision for the offence of adultery has been omitted. This is in line with the Supreme Court’s ruling in 2018 in the case of Joseph Shine v. Union of India, where Section 497 of the IPC, which criminalized adultery, was held to be unconstitutional.
- Similarly, in line with the Supreme Court’s unanimous reading down of Section 377 in Navtej Singh Johar v. Union of India (2018), the proposed legislation does not include any punishment for ‘unnatural sexual offences against men.’
- It repeals the offence of sedition —which is reflected in Section 124A of the IPC. However, upon closer inspection, it can be seen that the provision has been introduced under a new name and with a more expansive definition for the offence.
2. Bharatiya Nagarik Suraksha Sanhita Bill, 2023
- The Bill will replace the CrPC by repealing nine of its provisions. It proposes changes to 160 provisions and introduces nine new provisions. It contains a total of 533 sections.
- A formal provision (Section 230) has been introduced to ensure that a copy of the FIR is made available to the accused and the victim free of cost and within fourteen days from the date of production or appearance of the accused.
- The Bill also permits the filing of a zero FIR from any part of the country:
- When a police station receives a complaint regarding an alleged offence committed in the jurisdiction of another police station, it registers an FIR and then transfers it to the relevant police station for further investigation; this is called a zero FIR.
- Other changes to expedite the procedure include the facility for an accused person to be examined through electronic means, like video conferencing.
3. Bharatiya Sakshya Bill, 2023
- The Indian Evidence Act will be replaced by Bill which proposes changes to 23 provisions and introduces one new provision. It contains 170 sections in total.
- The Bill permits the admissibility of an electronic or digital record as evidence and will have legal validity as documentary evidence.
WHAT IS CRIMINAL JUSTICE?
- Society considers some behaviours as dangerous and destructive that it either strictly controls their occurrence or outlaws them outright.
- Criminal Justice system refers to the agencies of government charged with enforcing law, adjudicating crime, and correcting criminal conduct.
- It is the job of the agencies of justice to prevent these behaviours by apprehending and punishing transgressors or deterring their future occurrence.
OTHER EFFORTS AT REFORMING CRIMINAL LAWS:
- The Criminal Procedure (Identification) Act, 2022
- The Act replaces the Identification of Prisoners Act, 1920.
- The Act empowers police officers or prison officers to collect certain identifiable information from convicts or those who have been arrested for an offence. This information could include finger-prints, photographs, iris and retina scan, biological samples and their analysis, and behavioural attributes.
- The Act empowers the National Crime Records Bureau (NCRB) to collect (from state governments, union territory (UT) administrations, or other law enforcement agencies), store, process, share, disseminate and destroy records of measurements, as may be prescribed by rules.
- Criminal Law (Amendment) Act, 2018
- It amended the IPC, 1860 to increase the minimum punishment for rape of women from seven years to ten years.
- Rape and gang rape of girls below the age of 12 years will carry minimum imprisonment of twenty years and is extendable to life imprisonment or death.
- Criminal Law (Amendment) Act, 2013:
- The Act was introduced to make the rape laws in India more stringent. It widened the definition of rape
- Malimath Committee (2000) on reforms in the Criminal Justice System of India (CJS):
- The Committee had opined that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”
- Some of its major recommendations were:
- Reclassify Offences:
- Instead of the current system of categorising into cognisable and non-cognisable offences, the committee recommended 5 categories:
- (i) Economic Code
- (ii) Criminal Code
- (iii) Correctional Code
- (iv) Social Welfare Code
- (v) Other Offences Code
- Rights of the Accused:
- A schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.
- Justice to the victims:
- The victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation.
- Police:
- Separating the investigation wing of the police from its Law & Order Wing.
- Creation of National Security Commission, and State Security Commissions.
- For maintenance of crime data, appointing additional SP in each district was suggested.
- Organise Specialised Squads for dealing with organised crimes.
- Creating a Police Establishment Board for matters related to postings and transfers, etc.
- For probing inter-State or transnational crimes, a special team of officers must be constituted.
- Increasing the police custody period from current 15 days to 30 days and an additional period of 9 days for filing of charge sheet in cases of serious crimes.
- Public Prosecution:
- The creation of a new post of Director of Prosecution in each state who will ensure effective coordination between the prosecution wing and the investigation wing of the police, using the guidance of the Advocate General of that state.
- It is also recommended to appoint the public prosecutors and assistant public prosecutors by means of a competitive exam instead of departmental promotions. These appointees shouldn’t be posted in their home districts or where they are already practising.
- Court and Judges:
- Investigative Practices:
- The judicial magistrate should be responsible to supervise the whole investigation and the courts should be granted the powers to summon anyone for examination if required, even if he/she is not listed in the witness list.
- Right to Silence:
- The Article 20 (3) of the Indian Constitution should be amended in such a way as to allow the courts to infringe on this right of the accused and make him/her provide information which could go against himself/herself.
- Innocence Until Proven Guilty:
- The practice of presuming the accused to be innocent and unreasonably burdening the prosecution to prove otherwise should be done away with.
- Instead, a fact should be considered as proven if the court is so convinced subject to its complete evaluation of all the matters in front of it.
- Witness Protection:
- It suggested separate witness protection law so that safety and security of witness can be ensured and they can be treated with dignity.
- Dying Declarations:
- It suggested the law to authorise the audio/video recorded statements, confessions, and dying declarations.
- Periodic review:
- A Presidential Commission was recommended for a periodical review of the functioning of the Criminal Justice System
- Substitution of death sentence:
- Substitute with imprisonment for life without commutation or remission.
- Victim Compensation Fund:
- A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated from organised crimes can be made part of the fund.
- Perjury:
- The witness must be fined and/or imprisoned and be tried if he/she is found to be providing false information so as to influence the natural course of the case.
- Madhav Menon Committee:
- It submitted its report in 2007, suggesting various recommendations on reforms in the Criminal Justice System of India (CJSI).
- Major recommendations
- Empowering the victims and compensate the injury.
- Sentencing guidelines for purposive punishments.
- Re-classification of crimes and streamlining the procedure through rational classification of offences.
- Setting up of a Bureau of Criminal Justice Statistics, Research & Development.
- Setting up of a Board of Criminal Justice in the Union &
- States.
- Setting up of a National Authority to deal with crimes affecting National Security.
- A national strategy to reduce crime and finance infrastructure development.
- Criminal Justice Reforms in relation to advancements in science and technology.
- Affirmative action to safeguard interests of the weaker sections
- Parliamentary Standing Committee reports:
- 111th, 128th & 146th Parliamentary Standing Committee report had recommended that there is a need for a comprehensive review of the criminal justice system of the country.
- Major efforts by Judiciary:
- Navtej Singh Johar v/s Union of India 2018:
- Supreme Court struck down Section 377 of the Indian Penal Code (IPC), which criminalised consensual sexual intercourse between persons of the same sex for being “against the order of nature”.
- By this judgment Court upheld the right to equal citizenship of all members of the LGBTQI community in India.
- Joseph Shine v/s Union of India, 2018:
- The Supreme Court struck down Section 497 of IPC which criminalised adultery while treating = a married woman as the commodity of her husband.
- The court held that the provision was based on gender stereotypes and hence violated Article 14 (equal protection of laws) and Article 15 (non-discrimination on grounds of sex) of the Indian Constitution.
- Committee on Prison Reforms:
- The Supreme Court recently formed a Committee on Prison Reforms chaired by former apex court judge, Justice Amitava Roy, to examine the various problems plaguing prisons in the country, from overcrowding to lack of legal advice to convicts to issues of remission and parole.
- Anuradha Bhasin v/s Union of India (2020):
- One of the issues in the case was regarding the excessive imposition of Section 144 of the Code of Criminal Procedure, 1973.
- Supreme Court held that Section 144 CrPC cannot be used as a tool to prevent legitimate expression of opinion.
- The court further held that Section 144 CrPC is not only remedial but also preventive and shall be exercised only in cases where there is danger or apprehension of danger.
- Amish Devgan v/s Union of India (2020):
- In this case of hurting religious sentiments of community, sections concerned included Section 153B and Section 295A of the Indian Penal Code, 1860.
- Supreme Court held that it is important to make a difference between free speech and hate speech.
- While free speech does comprise the right to criticize government policies, hate speech refers to the spreading of hatred against a group or community
- Framework for death sentencing
- When the Supreme Court upheld the constitutional validity of the death penalty in Bachan Singh’s case (1980), a framework was developed for future judges to follow when they had to choose between life imprisonment and the death penalty.
- At the heart of that framework was the recognition that the legislature in the Criminal Procedure Code had made it clear that life imprisonment would be the default punishment and judges would need to give “special reasons” if they wanted to impose the death sentence.
- Through the 1980 framework — popularly but inaccurately known as the “rarest of rare” framework — the Supreme Court said that judges must consider both aggravating and mitigating factors concerning the crime and the accused when deciding if the death penalty is to be imposed.
- Witness Protection Scheme, 2018:
- It provides for protection of witnesses based on the threat assessment and provides for a State Witness Protection Fund for meeting the expenses of the scheme.
- This fund shall be operated by the Department/Ministry of Home under State/UT Government
- Other initiatives:
- Tele law scheme:
- By Ministry of Law and NALSA, aimed at providing legal aid services to marginalized communities and citizens living in rural areas through digital technology.
- Pro-bono legal services:
- It is a web-based platform through which the interested lawyers can register themselves to volunteer services for litigants who are unable to afford it.
- Nyaya Mitra
- It is aimed at reducing pendency of cases across selected districts, with special focus on those pending for more than 10 years. A retired judicial officer, or an executive officer with judicial experience, will be put in charge of assisting those suffering due to judicial delays.
SUGGESTIONS:
- Victim Protection:
- The reason for victimisation ought to be given a major thrust in reforming laws to identify the rights of crime victims.
- For example: Launch of victim and witness protection schemes, use of victim impact statements, increased victim participation in criminal trials, enhanced access of victims to compensation and restitution.
- Checking Law’s relevance and enforceability:
- The laws which are outdated and not relevant in the present times should be identified and empirical research should be done for the same.
- The problems with the enforceability of the provisions should also be checked.
- Construction of New Offences:
- The construction of new offences and reworking of the existing classification of offences must be guided by the principles of criminal jurisprudence which have substantially altered in the past four decades.
- For example: Criminal liability could be graded better to assign the degree of punishments.
- New forms of punishment:
- New types of punishments like community service orders, restitution orders, and other aspects of restorative and reformative justice could be brought into its fold.
- Criminalization of Marital rape:
- Criminalization of marital rape has been a long-standing recommendation of the law commission, various committees and the criminalization of marital rape has been demanded by many sections of society
- Curbing unprincipled criminalisation:
- Guiding principles need to be developed after sufficient debate before criminalising an act as a crime.
- Unprincipled criminalisation not only leads to the creation of new offences on unscientific grounds, but also arbitrariness in the criminal justice system.
PRACTICE QUESTION:
Q. Criminal laws of India needs a major overhaul to ensure affordable and speedy justice to all. Discuss.
