Why in news?

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

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• Updation- Since, Indian penal code was launched in 1860 during British colonial rule, it is outdated to the present context.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.

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 1/3^rd 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.

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