REVAMPING THE CRIMINAL JUSTICE SYSTEM TO FIT THE BILL

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.

THE CONCLUSION:

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.

REFER TO MAINS FOCUS ARTICLES FOR MORE INFORMATION:

https://blog.lukmaanias.com/2023/11/01/time-and-change-on-the-parliamentary-standing-committee-on-home-affairs-and-new-criminal-laws/

https://blog.lukmaanias.com/2023/10/03/criminal-law-bills-and-a-hollow-decolonisation/

SOURCE: https://www.thehindu.com/opinion/lead/revamping-the-criminal-justice-system-to-fit-the-bill/article67522334.ece



TIME AND CHANGE: ON THE PARLIAMENTARY STANDING COMMITTEE ON HOME AFFAIRS AND NEW CRIMINAL LAWS

THE CONTEXT: The Parliamentary Standing Committee on Home Affairs postponed its adoption of a draft report on three Bills seeking to replace the existing criminal laws, after pressure from the Opposition seeking more time to examine it.

MORE ON THE NEWS

  • The parliamentary committee has held only 12 meetings so far on the three Bills, which opposition members feel is inadequate for scrutiny of the Bills.
  • The Bill is facing dissenting notes, mainly pertaining to the text of the Bharatiya Nyaya Sanhita, which will replace the Indian Penal Code and the Bharatiya Nagarik Suraksha Sanhita, which will come in the place of the Code of Criminal Procedure.
  • However, there appears to be unanimity on the third Bill, the Bharatiya Sakshya Bill, that will replace the Indian Evidence Act.

WHY WERE THE BILLS INTRODUCED?

  • To undo colonial legacy: The existing criminal justice system was designed with the purpose of ruling the nation to serve British powers. The system of criminal justice delivery now has become less effective to serve its desired purpose, based on the current situation.
  • Ineffective criminal justice system: There is increasing pressure on the judiciary with huge pendency which obstructs delivery of justice. Another issue is of huge undertrials as according to National Crime Records Bureau (NCRB)-Prison Statistics India, 67.2% of our total prison population comprises of under trial prisoners. These indicate the inefficiency of our criminal justice system.
  • To increase the confidence of the common public: The existing criminal justice system has become a tool for harassing common people. There is a need to overhaul the current criminal justice system to increase the confidence of the common public in the laws of the country.

ISSUES RAISED BY THE OPPOSITION

  • Inadequate consultation: Opposition members raised issue on the speed at which the committee reviewed the Bills without proper stakeholder consultation. There is no adequate consultation of lawyers activists, and members of the subordinate judiciary who would actually work the law and procedure laid down in the codes.
  • Copy of existing legislation: It is argued that considerable sections of the new laws are mere reproductions of the old Codes. In this case, the government could have sought to amend the laws instead of bringing in new legislation.
  • Hindi nomenclature: Another major criticism of the Bill is use of the Hindi nomenclature, which is said to be exclusionary for a large section of the country.
  • Short-term electoral gains: There are issues of deeper scrutiny to bring reform in the criminal justice system. Opposition is blaming the government for hurrying the Bill without proper scrutiny for short-term electoral gains. It is leading to mocking the process of “legislative scrutiny”.

THE WAY FORWARD

  • Need for wider stakeholder consultation: There should be a wider consultation among all the stakeholders, whether government, activists and all levels of judiciary. It should be done in order to serve the interest of people to deliver effective and quicker justice.
  • Need of more scrutiny: The Parliamentary standing committee should take more time to study the proposed criminal laws. The extended time should be seen as an opportunity for deeper scrutiny of the Bills to tackle all the issues raised to reform the Bills.
  • Need of Structural changes: There is a need for structural changes in the criminal justice system of India. There is a need for comprehensive changes in the criminal laws of the country to provide affordable and speedy justice to all and create a people-centric legal structure.
  • Step towards decolonisation of the Bills: The current Bills is seen as a step towards getting rid of colonial era laws. It is stated that while the aim of the old laws was to protect the British administration, the aim of the new laws is to protect the rights of people. It has potential to enter a new era of criminal justice system to defeat all the forces that prevent people’s rights being taken to them.

THE CONCLUSION:

The whole point of introducing these new criminal codes was to bring about a major overhaul of a body of law deemed to be too colonial in orientation. However, bringing the Bill in a haste without proper consultation is not the solution and there is a need of extensive consultations of all the stakeholders involved for its effective implementation.

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 The law of the land has to be in tune with the demands of the changing times and nature of complexities in offences. How the proposed Criminal law Bills tend to justify this statement by replacing colonial-era laws. Analyse.

Q.2 The existence of an orderly society depends on the efficient functioning of the Criminal Justice System. Analyze the concerns associated with existing criminal justice system in India. Suggest measures to address the concerns.

Note: Please refer to Mains focus article for more information: https://blog.lukmaanias.com/2023/10/03/criminal-law-bills-and-a-hollow-decolonisation/

SOURCE: https://www.thehindu.com/opinion/editorial/time-and-change-the-hindu-editorial-on-the-parliamentary-standing-committee-on-home-affairs-and-new-criminal-laws/article67473537.ece#:~:text=Panel%20should%20be%20given%20more%20time%20to%20study%20new%20criminal%20laws&text=The%20Parliamentary%20Standing%20Committee%20on%20Home%20Affairs%20has%20postponed%20the,more%20time%20to%20study%20it.