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Criminal law reforms

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August 18, 2023

Why in news?

Recently, the government unveiled three new bills that will have significant transformation in the criminal justice system.

New bills

What is the need for reforms?

  • Updation- Since, Indian penal code was launched in 1860 during British colonial rule, it is outdated to the present context.
  • Technology usage- Code of criminal procedure launched in 1861 didn’t have much emphasis for technology usage.
  • Address the delays- Indian Evidence Act, 1872 also needs reforms to the present day requirements, as it hampers speedy justice.
  • Slow police investigations often result in catastrophic miscarriages of justice.
    • According to Supreme Court, “Speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 of the Constitution.
  • Promote transparency - The rich and the resourceful get better access to justice than the marginalised and the vulnerable.
  • Speedy justice- Jails overflow with under trials and the slow moving courts are clogged with some 50 million cases.
    • According to a 2017 survey, nearly 60,000 cases are pending in the Supreme Court.
    • Equity deferred is denied equity.

criminal-justice

What are the advantages of the bills?

  • Expansion- It bring offences like terrorism, corruption, mob lynching and organised crime under penal laws.
  • Zero FIR- It allows people to register a police complaint in any police station, regardless of the location where the crime took place.
  • ICT applications- They propose video recording of search and seizure operations and increased the use of electronic evidence and forensics during investigation.
  • Community service- It is introduced as a new form of punishment.
  • Sedition- The offence has been judiciously tempered to prevent misuse, facilitated by introducing a test for criminal intent.
  • Speedy justice- They advocate video trials, and holding trials in absence of the accused.
  • In line with Supreme Court ruling- It has excluded attempted suicide and adultery in the bills which aligns with the Supreme Court rulings.
  • Undertrials - The Police Superintendent has to ensure that an application is made to the court to release under trials who have completed 1/2 or 1/3rd of their maximum possible sentence.

What are the challenges associated with the bill?

  • New definition of sedition- The new bill punishes acts endangering sovereignty, unity and integrity of India.
  • It gives the police unchecked powers of arrest.
  • Vague- The manner in which the offences are drafted continue to perpetuate the problem of vague criminal law provisions that worsen the risk of arbitrary arrests.
  • The bills should have revisited the offences relating to religion and blasphemy.
  • Borrowed legislations- Some of the new offences are borrowed from existing legislations on organised crime and the UAPA without clarifying the reasons for such borrowing.
  • Criminalise speech- Offences including sedition and obscenity require reconsideration.
  • Marital rape - It has not been criminalised despite India having tough laws to prevent sexual violence against women.
  • Modesty- The terminology of "modesty" employed in the code for the offence of "outraging the modesty of a woman" should be taken out.
  • Bail adjudication- The new Bills do very little to resolve the manner in which bail is adjudicated and accessed.
  • Torture in investigation- Without appropriate changes in the evidence legislation on recovery evidence based on statements to the police, the institutional reality of torture will continue.
  • Death penalty to mob lynching- Sentencing a mob to death doesn’t seem like appropriate punishment.
  • Retains outdated laws- The bills removed the reference to thugs and punishment for it as it is based on the Victorian morality, but have retained more than 80% of 160 year old IPC.
  • Institutional challenge- The bills propose that every crime scene must undergo forensic investigation.
  • Collection and analysis of forensic evidence along with the manner in which they are used in courts remain unaddressed.
  • Issue with the committee – A committee was constituted in 2020 to undertake public consultations and recommendations.
    • It was a male dominated committee with lack of adequate representation.
    • The real information on the methodology adopted to process and analyse the submissions that were received is unavailable.
    • The Committee’s recommendations are not in the public domain.
  • Strategic power asset- The political executive has consistently sought to wield criminal law as a pre-emptive tool. The proliferation of this approach to criminal law raises legitimate concerns.
  • Police custody- The period during which an arrested person can be sent to police custody has been expanded from 15 days to over 60 or 90 day period depending on the offence.
  • International practices- Countries like Singapore, Malaysia, Sri Lanka and Bhutan are still using the colonial penal code.
  • Singapore recently made amendments to update it and introduce present-day requirements.

What lies ahead?

  • The criminal reform change must strike a delicate equilibrium between state security imperatives and individual freedom.
  • The principle of equality and equitability is essential to check on criminal law reform and to ensure public trust.
  • The effectiveness of the reforms will be tested on the basis of its impact on the vulnerable, the victims and the poor.

Committees for reform of criminal laws

  • Malimath committee- It was formed in 2003 to bring reforms in the criminal justice system.
  • The Committee recommended that the victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation.
  • Justice Verma panel- It was formed to ensure quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. It submitted its report in 2013.
  • Ranbir Singh committee- It was formed in 2020 to review three codes of criminal law
    • Indian Penal Code (IPC), 1860
    • Code of Criminal Procedure (CrPC), 1973 and
    • Indian Evidence Act, 1872.

 

References

  1. Indian Express-  The bills in perspective
  2. The Hindu- Principled course for criminal law reforms
  3. BBC- India’s planned criminal law reform a game changer
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