Context: Committee on Criminal Law Reform:
Recently, the Ministry of Home Affairs (MHA) has constituted a national level committee for reform in criminal law.
There have been several attempts in recent decades to overhaul the body of criminal law, comprising the Indian Penal Code of 1860 vintage, the Code of Criminal Procedure that was rewritten in 1973, and the Indian Evidence Act that dates back to 1872.
However, comprehensive legal reform is something that requires careful consideration and a good deal of deliberation.
Background of Criminal Justice System:
The criminal justice system is a replica of the British colonial jurisprudence, which was designed with the purpose of ruling the nation and not serving the citizens.
The codification of criminal laws in India was done during the British rule, which more or less remains the same even in the 21st century.
Lord Thomas Babington Macaulay is said to be the chief architect of codifications of criminal laws in India.
Criminal law in India is governed by Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Indian Evidence Act, 1872, etc.
The purpose of the criminal justice system was to protect the rights of the innocents and punish the guilty, but nowadays the system has become a tool of harassment of common people.
According to Economic Survey 2018-19, there are about 3.5 crore cases pending in the judicial system, especially in district and subordinate courts, which leads to actualisation of the maxim “Justice delayed is justice denied.”
Criminal justice system: need of both substantive and procedural:
- The criminal justice system- both substantive and procedural- are replica of the British colonial jurisprudence, which were designed with the purpose of ruling the nation. Therefore, the relevance of these 19th century laws is debatable in the 21st century.
- The construction of new offences and reworking of the existing classification of offences must be guided by the principles of criminal jurisprudence which have substantially altered in the past four decades.
- The discretion of judges in deciding the quantum and nature of sentence differently for crimes of the same nature should be based on principles of judicial precedence.
- Criminal law is considered to be the most apparent expression of the relationship between a state and its citizens. Therefore, any revision to the CJSI needs to be done while keeping several principles in mind.
- Criminal justice is in a state of policy ambiguity. India needs to draft a clear policy that should inform the changes to be envisaged in the IPC or CrPC.
- All reforms will be in vain unless simultaneous improvements are made in the police, prosecution, judiciary and in prisons.
- Our policy makers need to focus on reformative justice in order to bring all around peace in the society.
Concerns by Jurists, legal experts and activists:
- The formation of a ‘Committee for the Reform of Criminal Laws’ by the Union Home Ministry with an apparently short time frame and limited scope for public consultation has caused considerable disquiet among jurists, lawyers and those concerned with the state of criminal justice in the country.
- Few would disagree with the idea that the current laws governing crime, investigation and trial require meaningful reform.
- One criticism against the latest Committee is that it has begun its work in the midst of a pandemic. This may not be the ideal time for wide consultations.
- Activists and lawyers functioning in the hinterland may be at a particular disadvantage in formulating their opinions.
- The panel’s mandate appears quite broad: “to recommend reforms in the criminal laws of the country in a principled, effective, and efficient manner which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual.”
- This is vague and open to multiple interpretations. It is also not clear why the Law Commission has not been vested with this task.
- The lack of diversity in what is an all-male, Delhi-based committee has also been adversely commented upon.
- In 2003, the Justice V.S. Malimath Committee on reforms in the criminal justice system had come up with some far-reaching suggestions, some of which became part of changes in criminal law.
- However, it also attracted criticism over the suggestion that the standard of evidence be reduced from “beyond reasonable doubt” to “clear and convincing”.
- The Justice Verma panel came up with a comprehensive and progressive report on reforms needed in laws concerning crimes against women in 2013 in barely one month, but its speed was probably due to the limited mandate it had.
Reforms that need to be included are:
- The committee must cover a large and diverse landscape of ‘offences’ and criminal procedure to craft a criminal law system that is truly in tune with the times. For example, Contempt of Court, marital rape, acid attacks, hate crimes etc
- Government should not give in to populist demands and run the risk of excessive policing and over-criminalising
- Death Penalty needs a legislative approach and not just passing the buck to the judiciary.
- On procedural aspects of criminal law, there is a need to harmonise the statute books with court rulings
- Victim who are often on the margins of the justice process should not be burdened with institutional delays
- Accountability, above all, must guide the balance between the rights of the citizen and imperatives of state.
Criminal justice is directionless and in a state of policy ambiguity. India needs to draft a clear policy that should inform the changes to be envisaged in the IPC or CrPC.
Another systemic error is that of non-adherence to a particular theory of punishment. The criminal justice system often swings between the three theories of deterrence, retribution and reformation depending on its convenience.
If at all criminal law is to be reformed, there should be a genuine attempt to reach a wide consensus on ways to speed up trials, protect witnesses, address the travails of victims, improve investigative mechanisms and, most importantly, eliminate torture.
An impression should not gain ground that wide-ranging changes are sought to be made within a short time frame and based on limited inputs from the public. Reform is best achieved through a cautious and inclusive approach.