Table of Contents
THE CONTEXT: The Government has introduced three Bills to replace the core laws, i.e., 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.
MORE ON THE NEWS:
- The Bharatiya Nyaya Sanhita Bill will replace the IPC; the Bharatiya Nagarik Suraksha Sanhita Bill will be in place of the CrPC, and the Bharatiya Sakshya Bill will replace the IEA.
- These Bills aim to replace the entire Acts and are not merely Amendment Bills. They provide an opportunity for an overhaul of the laws underlying the criminal justice system.
ISSUES IN THE BILL
Issues related to modernising jurisprudence:
- Inclusion of civil provisions: Usually, criminal law deals with issues that are seen as an offence against the broader society or state, while civil law deals with loss to a person. However, the CrPC includes provisions for maintenance of wife and children after divorce. The issue arise here is whether such matters should be dealt with under the civil code. The new Bills retain these provisions.
- Reformative or punitive: Another issue is whether these Bills create a reformative system rather than a punitive system. Several minor offences (such as keeping an unauthorised lottery office, which carries a maximum penalty of six months imprisonment) are not compoundable, which means they will go through the process of trial and conviction.
- Maintenance of public order: Third issue is related to maintenance of public order and the process of criminal prosecution that whether both should be in the same law. The CrPC has provisions charting out the process of arrest and trial as well as items such as Section 144 that empower the district magistrate to impose various restrictions. The new Bill retains this structure.
- Codification: There are various directions of the Supreme Court of India that have been codified in these proposed laws. The Bill codifies the procedure for mercy petitions. However, there is no codification of various directions related to arrests and bail.
- Implementation: Another issue is whether these Bills try to ensure consistency of implementation. Typically, penalties for offences specify a range, with the judge expected to specify the sentence within the range based on the circumstances of each case. However, for some offences, the range may be very wide. The new Bill retains such wide ranges.
- Age provisions: Another challenge is related to the updation of age provisions according to modern norms. The IPC specifies that a child below the age of seven years cannot be accused of an offence. It provides such exemption until 12 years of age if the child is found not to have attained the ability to understand the nature and consequences of his conduct. The question is whether these age thresholds should be raised.
- Gender provisions: Another issue is related to updation of gender related offences. The Bill is in line with the Supreme Court judgment, which struck down the offence of adultery. Section 377 of the IPC, which was read down by the Court to decriminalise same sex intercourse between consenting adults has been dropped. The Justice Verma Committee, in 2013, had recommended making marital rape an offence but this has not been done.
Issues relating to overlap with special laws:
- The IPC was enacted in 1860 as the principal law specifying offences and penalties. Since then, several laws have been enacted to deal with specific offences.
- This leads to duplication as well as inconsistency across these laws. In some cases, the penalties are different and also a person may face prosecution under different laws for the same action. For example, the Bill (like the IPC) overlaps with several other Acts such as those related to food adulteration, sale of adulterated drugs, bonded labour, and rash driving.
Ambiguities in definitions and drafting:
- There are ambiguities in definition of some terms in the Bill. For example, the definition of mental illness is the same as in the Mental Healthcare Act, 2017. This allows full exemption to offenders but not to a person who is unable to understand the consequences of their actions due to mental retardation.
THE WAY FORWARD:
- Simplify and modernise the laws: The reforms aim at modernizing and simplifying the criminal laws, which are outdated and complex. Laws need to be in tune with the Indian spirit and ethos, and reflect the changing nature of crime, society, and technology.
- Awareness in citizen: There is a need to empower the citizens by making them aware to access justice system. This is for effective protection of the constitutional rights of citizens, such as right to life, liberty, dignity, privacy, and fair trial.
- Capacity Building: There is a need to invest in training and infrastructure to enhance the capacity of law enforcement agencies, judiciary, and legal aid services. Adequate resources will lead to more efficient and fair administration of justice.
As these Bills will become the basis of the criminal justice system. There needs to be proper parliamentary scrutiny of the new Bills replacing the IPC, the CrPC and the IEA to ensure a fair, just and efficient criminal justice system.
PREVIOUS YEAR QUESTIONS
Q.1) We are witnessing increasing instances of sexual violence against women in the country. Despite existing legal provisions against it, the number of such incidences is on the rise. Suggest some innovative measures to tackle this menace. (2014)
Q.2) Mob violence is emerging as a serious law and order problem in India. By giving suitable examples, analyze the causes and consequences of such violence. (2015)
MAINS PRACTICE QUESTIONS
Q.1 An effective criminal justice system upholds the rule of law, protects human rights, and effectively serves the needs of its diverse population. Comment in the context of the new Criminal Laws Bills being formulated by the government.
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