Reforming Criminal Justice system
2023 NOV 16
Polity > Executive > Criminal justice system
- The Government has introduced three Bills to replace the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act (IEA), 1872, which form the basis of the criminal justice system.
- These Bills are being examined by the Parliamentary Standing Committee on Home Affairs. As these Bills replace the entire Acts, they provide an opportunity for an overhaul of the laws underlying the criminal justice system.
EVOLUTION OF CRIMINAL JUSTICE SYSTEM IN INDIA:
- The codification of criminal laws in India was done during British rule.
- Based on the 1833 charter act, the first Law Commission under the Chairmanship of Lord Macaulay prepared the Indian Penal code.
- 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
NEED FOR REFORMS:
- Shed the colonial legacy:
- The present 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 to changing times:
- Owing to changes in the society, perspectives of people, and the nature of crimes, many of the existing provisions have become insufficient or obsolete.
- For example: IPC was enacted in 1860, but crimes like mob lynching, financial crimes, white-collar crimes, economic crimes, etc., have not found proper recognition in the IPC.
- Pendency of cases:
- Between 2010 and 2020, pendency across all courts grew by 2.8% annually. As of September 15, 2021, over 4.5 crore cases were pending across all courts in India, which leads to actualisation of the maxim “justice delayed is justice denied.”
- Reduce the number of under-trials:
- In India, three out of four, or about 77% of the total prison population in 2021, were undertrials. This number can be attributed to the complex legal system and pendency of cases in courts.
- Remove inequalities:
- The purpose of the criminal justice system is to protect the rights of the innocents and punish the guilty, but nowadays the system has become a tool for harassment. For instance, among those awaiting trial, a disproportionate share come from marginalised communities.
- Improve policing and crime investigation:
- Corruption, huge workload and lack of accountability of police is a major hurdle >> which need to be reformed.
- Ensure individual liberty against state arbitrariness:
- 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. For this, the justice system needs to be simple and ensure timely delivery of justice.
- 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.
KEY HIGHLIGHTS OF THE BILLS
1. The Bharatiya Nyaya Sanhita Bill, 2023
- This Bill 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.
- 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 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.
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.
- 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.
- 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):
- Reclassify Offences into 5 categories: Economic Code, Criminal Code, Correctional Code, Social Welfare Code and Other Offences Code
- A schedule to the Code be brought out in all regional languages so that the accused knows their rights
- Separating the investigation wing of the police from its Law & Order Wing.
- Creating a Police Establishment Board for matters related to postings and transfers, etc.
- Increase in strength of judges and courts and reducing the vacations of court on account of long pendency of cases.
- 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.
- Witness Protection: It suggested separate witness protection law.
- 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 punished if he/she is found to be providing false information so as to influence the natural course of the case.
- Madhav Menon Committee, 2007 recommendations
- Empowering the victims and compensate the injury.
- Re-classification of crimes and streamlining the procedure through rational classification of offences.
- 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, where Supreme Court struck down Section 377 of the IPC.
- Joseph Shine v/s Union of India, 2018, where the Supreme Court struck down Section 497 of IPC which criminalised adultery.
- Committee on Prison Reforms, chaired by former apex court judge, Justice Amitava Roy, to examine the various problems plaguing prisons in the country.
- Anuradha Bhasin v/s Union of India (2020), where Supreme Court held that Section 144 CrPC cannot be used as a tool to prevent legitimate expression of opinion.
- Amish Devgan v/s Union of India (2020):
Supreme Court held that it is important to make a difference between free speech and hate speech.
- 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:111 popularly but inaccurately known as the “rarest of rare” framework.
- 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.
- Other initiatives:
- Tele law scheme, by Ministry of Law and NALSA
- Pro-bono legal services
- Nyaya Mitra, with special focus on cases pending for more than 10 years.
- Victim Protection:
- 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 not relevant in the present times should be identified and empirical research should be done for the same.
- Construction of New Offences. For example: Criminal liability could be graded better to assign the degree of punishments.
- New forms of punishment, like community service orders, restitution orders, and other aspects of restorative and reformative justice.
- Criminalization of Marital rape has been demanded by various commission and sections of society
- Curbing unprincipled criminalisation: Guiding principles need to be developed after sufficient debate before criminalising an act as a crime.
Q. Criminal justice system in India is in dire need of a major overhaul. Discuss. (15 marks, 250 words)