On skimming the three new Bills dealing with the substantive offences—Bharatiya Nyaya (Second) Sanhita Bill; Bharatiya Nagarik Suraksha (Second) Sanhita Bill, and Bharatiya Sakshya (Second) Bill—is it only in the name or something more?
Incidentally, the Sakshya Bill (evidence) applies to both civil and criminal cases and has the least departure from the Indian Evidence Act of 1872. There are marked improvements over the earlier avatars of these Bills, for which we must thank the committee that reviewed these laws.
Now that Parliament has passed these Bills, once enacted, they will soon be in the hands of academics, lawyers, and judges to mull over and analyse. Apart from a new revenue stream for law publishers, for students of the law beyond coming to terms with renumbered provisions—it includes some substantial changes as well.
The need to amend and upgrade the criminal law with societal and technological changes is important to any nation that functions on the rule of law. However, we must be clear about the social purpose and philosophical moorings behind such changes and whether the amended law aligns with both the text and spirit of the Constitution.
We are a constitutional democracy. Life and liberty, presumption of innocence and the adversarial form of litigation (as opposed to the European prosecutorial form) are the cornerstones of our criminal justice system. With these latest three laws, it is time for us to introspect on the purpose of criminal law, as laws of 150 years vintage are being overhauled.
Also read: India’s proposed criminal law codes can modernise justice – if they begin with police first
No big changes
The fact is that while there have been some additions in the old laws to form new legislation, modifications and upgradations—barring the change in numbers, nomenclature and reorganisation—there are no earthshaking changes.
My late father used to say that the practice of criminal law is the study of human nature. And with the increased penalisation of various aspects of human conduct, it touches our lives in more ways than desirable.
The Bharatiya Nyaya (Second) Sanhita Bill has added offences (addition of terrorism, organised crime, mob lynching), and enhanced penalties. For example, rash and negligent driving causing death attracts 10 years in jail. Medical negligence causing death is awarded with five years of jail time. Should doctors and other medical professionals operate under the threat of five years imprisonment? And if so, is there a rationale behind the enhancement of this punishment? The drafters in the government should have taken time to examine the decision in Jacob Mathew v. State of Punjab (2005) 6 SCC 1, which seems to have escaped their scrutiny.
By using nebulous words such as ‘notorious receivers’ of stolen property and retaining provisions for women’s and others right to claim maintenance under the CrPC, are we not burdening the system more? The new avatar of Section 125 CrPC providing for maintenance to women and others who face deprivation has no place in the criminal courts at all. Why not amend the Domestic Violence Act?
UAPA and organised crimes
Organised crimes and terrorism have been added to the law, but they do not come with either the safeguards for the accused or the stringent procedural and evidentiary components of the Unlawful Activities (Prevention) Act or state laws on organised crime. So, what will an investigator in a State under Maharashtra Control of Organised Crime Act (MCOCA) or Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act or similar laws invoke? The National Investigation Agency (NIA) will have to be empowered to investigate these added offences, which is yet to be done.
Keeping in view our liberty-oriented Constitution, is it possible that the Centre has proposed to dilute UAPA or state organised crime laws—a much-awaited exercise?
The old Section 303 of the Indian Penal Code for a life convict was struck down for its mandatory death penalty (Mithu v State of Punjab 1983) and has now rightly been reenacted with an option of two sentences.
Electoral offences, which are better placed in the Representation of People Act 1951, have been retained. So are the offences related to adulteration of drugs, covered under the Drugs and Cosmetics Act 1945. If coherence in the criminal law is one of the stated purposes of this exercise, why retain these provisions here?
In procedural law, the opportunity to enhance the range of plea-bargaining types, the failure to provide sentence guidelines or bail guidelines, and the failure to increase compoundable offences (which could reduce the burden on High courts) stand out. The government could have expanded the range of compoundable offences that can be settled and introduced offence bargaining (instead of limiting itself to sentence bargaining) if the goal was to rationalise and decongest the criminal justice system.
Yet, by enhancing police custody during an investigation to 40 and 60 days, the view that bail will not be constricted is a myth.
There are some positive changes such as electronic FIR’s, trial in absentia, speedy trials, use of technology, focus on video conference hearings, witness protection, and for accused who are said to be of unsound mind.
All of these will need immediate upgrade of human resources and infrastructure to make the law effectively work.
Also read: Courts still use ‘jamadar’ as post, need to shed colonial mindset, says SC report
Empower the justice system
The three latest laws are a reincarnation of what was not achieved by successive amendments to the CrPC 1973, the IPC 1860, and the Evidence Act 1872.
Directing trials and investigations to be completed for sexual offences in 60 days, and limiting adjournments are salutary provisions. Our justice system must be empowered to deliver what these laws promise. Otherwise, they would be reduced to mere words on paper for those whose lives get intertwined in the criminal justice system.
In the Evidence law, there are additions in the context of electronic evidence, but oral admissions, seemingly proposed by the investigating agencies, along with the use of accomplice confessions, and greater reliance on experts, are not liberty-oriented.
Technology has indeed added credence to investigations but these three laws don’t guarantee scientific investigations or rule out the fear of planting incriminating material. Can we wholeheartedly accept expert testimony as the unvarnished truth?
The Union government had a great opportunity to upgrade the existing laws, but what has been attempted could have been achieved with select amendments, without ostensibly overhauling the law. As the changes to the existing laws are limited, it would be appropriate to say that what was proposed by the Executive is not really a break from the colonial past.
The author is Sidharth Luthra Senior Advocate & former Additional Solicitor General. He tweets @Luthra_Sidharth. Views are personal.
(Edited by Ratan Priya)