Criminal Law Bills
Rameshwar Singh Jamwal
In an event of far reaching consequences for the Criminal Justice System of India, and those who are part of it or those vouching for reform for the last several decades, the Union Home Minister Amit Shah on Friday introduced three Bills in the Lok Sabha to repeal the Indian Penal Code, the Indian Evidence Act and the Code of Criminal Procedure, laws governing the criminal side of Justice delivery system from British era of nineteenth century. The Home Minster announced that the Indianised or rechristened Bharatiya Nyaya Sanhita Bill, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Sakshya Bill, 2023 will be sent to a parliamentary panel for further scrutiny which means that there will be further discussions on the proposed bills, before they become law. However some of the major changes these bills aim to bring will have major impact on the life of the citizens of the country, facing the onslaught of the ever increasing criminality and having no forum to air their grievances. Though in the present case also, there is minimum participation of the populace of the country in the inputs but it appears that there have been some discussions in the top echelons of power with few in the Justice delivery system and some of the top criminal lawyers of the country. The need for the new legislation arose as it has been a practice that whenever the people of a nation feel that the existing laws are not in a position to deter the criminals from committing the crime, these existing laws are amended or altered and new criminal laws and procedures governing them are enacted from time to time by the legislature in democratic countries, as the legislature is expected to represent the will of the people through the laws.
Some of the major changes these bills pertain to the sedition law, the problem of mob lynching and sexual offences against women. The new bills prioritise laws that protect women and children, punish serious offenders with stricter punishments and aim to deter those who intend to or actually harm the country. The proposed laws have also made offences gender-neutral in order to ensure that everyone is protected from crime, regardless of their gender but we must ensure that in the name of protecting the women, we do not create problems for the other sex as in large number of cases, the women protection legislations have been misused to the hilt. In order to deal effectively with terrorism and organised crime, new well defined offences have been created with severe penalties. There have been massive changes in the numbering of the sections and the penalties provided for some of the heinous offences but under which Criminological school or which Crime theory or whether these are based on old Indian treatise, as the names suggest, these proposed changes have been brought is still not clear. The policies and laws relating to crime control are basically made on the basis of existing knowledge of causation of criminal behaviour but we are lagging behind in this critical field and have no scientific data.
The new bill, replacing the Indian Penal Code, has also taken cue from the Restorative Justice system and introduced Community service for petty offences, which is a new non-custodial punishment that will be of interest to large sections of the society and can lessen the burden on the overcrowded Prisons of the country. It is a notion of repairing the harm done by crime and restoring the parties to a state of wellness or wholeness which was disturbed by the Criminal act and a systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders and communities caused or revealed by the criminal behaviour.
Since the proposed laws aim to reform the Criminal Justice system, how far the framers of the bills have gone into the major reasons of the crime and whether there is any scope for reformatory aspects of the Criminal Justice System by reforming Prison systems is unclear at the moment but today when there has been a phenomenal growth in scientific criminology, it is expected that the framers of the bills must have known that the word criminal justice encompasses all agencies which are engaged in crime prevention and control. So, to have a conclusion or a finding regarding the fiasco of our criminal justice administration system or the archaic laws governing it, we will have to study our experiences in crime prevention and control, criminal justice, offender treatment and criminal policy of the state and from those experiences we can offer some solutions which can be helpful in control of crime and for restoration of the potency of the criminal justice and administration system through the proposed laws. The emphasis on scientific investigation and aim to increase the conviction rate to about 90% is laudable but this requires massive investments and raising of infrastructure, creating massive number of posts of Forensic scientists, equipping Forensic labs with latest gadgets, raising their numbers and orientation courses for the investigating agencies.
Every nation or state frames its criminal policy keeping in view its social and religious structure and Laws are made by the legislature with the objective of creating peaceful societies and the administrative machinery of the state is used to implement those laws. These laws are enforced to achieve the twin objectives of crime control and punishments for law violaters. For stringent violations of law stringent punishments are provided to deter the future criminals. The Justice has to be swift, certain and severe if it is intended to bring Rule of Law in the country but the framers should have also given equal importance to concept of Culture of Lawfulness which is supplementary to ROL for bringing better results. In such societies those who transgress the rules are targeted not only by the Law enforcement machineries but also by many other sectors of society. Community support and involvement can focus on Preventing and rooting out criminal practices without involving much expenditure for a massive law enforcement and Punitive Establishment. This community involvement reduces the risk and expanse of intrusive surveillance and regulatory services which are sometimes accused of as harmful to individual liberties and creative economic, social and political initiatives. The new laws are silent on this aspect.
In India the criminal policy of the state was laid by the British and that reflected the requirement of that period. Though it was not laid on the basis of any survey or analysis of the social fabric and the structure of the country, yet it was based on Deterrent theory, to deter those who intended to harm British interests at that point of time, Sedition provision was a prime example. After independence we made minor deviation from the policy but now in recent years with the coming into centre stage of the theory of Human Rights and its maximum utilization by the extremist and forces inimical to the country, the thrust seemed to be rapidly changing. There were many opposing anything which aimed to protect the integrity of the country, in the name of freedom of expression and many laws intended to curb such practices had to be repealed as they were misused as well, but we needed change and how far the proposed Bills and present dispensation succeeds in doing so will be watched in the coming years.
(The author is a practising Advocate of J&K High Court and President of Criminologists Society.)
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