Criminal law

Expert explains: What does the proposed legislation to reform the criminal justice system mean? | Illustrated news


There is a disconnect between the way these bills are presented and their actual content. It is far from being a comprehensive reform that would be a panacea for the issues plaguing India’s criminal justice system. Large portions of these three bills simply reproduce existing provisions of the Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act.

This is not to say that there are no changes, but it is hard to see how these changes might have any real impact on the deep crisis within India’s criminal justice system. Moreover, some of the changes contained in these bills raise serious concerns.

During the epidemic in May 2020, an expert committee was set up to conduct public consultations and make recommendations. This consultation process left much to be desired in terms of its composition and the methods of engagement adopted. There were also concerns about the limited perspective from which the issue of criminal law reform was approached.

There was no real information on the methodology adopted by the Committee of Experts to process and analyze the requests received. The Committee’s recommendations to the Government of India are not made public – it is possible, in fact, that there could be a discrepancy between the Committee’s recommendations and the contents of the Bills submitted to Parliament.

It is also not known whether the government has undertaken other consultation mechanisms to determine the contents of these bills.

What are the changes in these bills that significantly affect the Indian criminal law framework?

The important change is the introduction of new offenses that were absent in the IPC such as acts endangering sovereignty, organized crime, terrorism offences, lynching and sexual intercourse by deceptive means/false promise of marriage.

But the way the offenses are framed continues to perpetuate the problem of vague criminal law provisions that exacerbate the risk of arbitrary arrests. Also, some of these crimes borrow heavily from the current legislation related to organized crime and the anti-corruption law, without explaining the reasons for this borrowing or its consequences.

However, it should be noted that some of the problematic IPC provisions do not find a place in the Bharatiya Nyaya Sanhita (BNS) Bill, 2023. There are no provisions similar to s. 377 (unnatural offences) and s. 309 (suicide attempt).

discord Since there is no crime, however, the inclusion of “acts endangering sovereignty” as an offense is perhaps the harshest provision in these bills. Not only is this provision vague, but the manner in which it criminalizes certain acts should give the police unrestricted powers of arrest.

In the Bharatiya Nagarik Suraksha Sanhita Act 2023 (which seeks to replace the Criminal Procedure Code), the period during which an arrested person can be sent to police custody has been extended.

As in the Criminal Procedure Code, an arrested person can be sent to police custody for a maximum period of 15 days after the date of arrest, but in the proposed law, the period of 15 days in police custody could be spread over a period of 60 or 90 days depending on the crime.

However, the Nagarik Suraksha Bill does include significant improvements in terms of victims’ rights – perhaps the most important of which is the provision to allow for the registration of victims. Flight information area At any police station, regardless of where the crime was committed.

The ruling requiring mandatory videotaping of searches and seizures seeks to address the issue of fairness in police investigations. The Nagarik Suraksha Bill also seeks to fill an important gap by making the prison superintendent responsible for ensuring that an application is submitted to the court to release defendants who have completed half or one-third of their maximum possible sentence.

There is also a clear push to greatly expand the use of electronic evidence and forensic evidence. However, critical issues related to the collection and analysis of forensic evidence as well as the manner in which it is used in courts remain unaddressed in the proposed Code of Procedure or Code of Evidence.

Have problems previously identified in the laws been addressed?

Not much attention has been paid to the problems plaguing India’s criminal justice system for a long time.

Prison overcrowding and the large proportion of informal trials is a growing crisis. Bail reforms are a critical component of this, and new bills do very little to resolve the way bail is adjudicated and accessed.

Nor do these bills move toward effective implementation of the obligation that bail should be the default option, with imprisonment the exception.

The prevalence of torture and the back-door entry of torture-based evidence into criminal trials is well known. While confessions to the police are inadmissible in and of themselves, empirical research adequately documents staged recovery processes that in many cases become the sole basis for conviction in the absence of direct evidence.

While Article 118 of the Code of Criminal Procedure 2023, on causing grievous harm to extract a confession, can be read as an attempt to criminalize torture, there are significant limitations to this provision. Without appropriate changes to the evidentiary legislation regarding recovery of evidence based on police statements, the institutional reality of torture will continue.

The disturbing approach to criminalization and punishment and their relationship to social problems continues in these laws. They perpetuate the belief that criminal law is the first and only answer to social problems. There is an urgent need to start recognizing that criminalization is an ineffective response. Solving social problems is a more complex exercise and resorting to criminal law is merely a populist measure.

What role do legislative measures play in bringing about lasting change?

There was no disagreement whatsoever about the need to reform the criminal justice system and criminal law framework. However, legislative change by itself cannot be sufficient.

The bills in their current form do not correct long-identified problems with law and process. But even if they did address these problems, it is doubtful that would be enough.

Institutional reforms remain an area of ​​relative disengagement and apathy. The attractiveness provided by the speed of legislative change has overshadowed the less visible change that accompanies institutional reform, even though it is the most urgent and most useful change to implement.

The barrier to reforms in the police force, prison administration, or even the courts is not just inertia, but also intentions. For example, the informal and problematic incentives and disincentives that are part of organizational culture are rules that actors in those organizations play with because that is the accepted mode of carrying out responsibility—those who play by the rules are often worse off. These informal incentives and disincentives find their way because of widening gaps that are often the result of low wages, harsh service rules, poor working conditions, constant stress, and ultimately a neglected system.

Multiple reports have highlighted problematic practices in the police and prisons, but the solution is often about the individual as at fault, not the institution. Perhaps the inertia in the institutions of the criminal justice system is because the intent to bring about these changes has been dampened by the effort it takes and the delay in any rewards.

Although legislative changes are important, centuries-old culture and institutional realities can override even significant legislative changes.

This is not the first time that changes have been made to criminal laws. Efforts to truly understand and undo the colonial legacy have remained unsatisfactory over the decades. The current attempt does not take the country down this path by simply deleting some references.

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A true retreat from the colonial legacy means a radical change in the concept of the relationship between the state and citizens.

(Anoop Surendranath is Professor of Law at the National University of Law Delhi. The opinions expressed are personal.)

⚖️Want to better understand the Centre’s recent comprehensive reform of criminal laws? We’ve got you covered. Check out some of our special reports:

👉🏼 From Video Trials to Community Service as Punishment: The Center’s Reform of Criminal Laws
👉🏼 The main provisions and processes proposed in the bill to replace the CrPC
👉🏼 Expert explains: What does the proposed legislation to reform the criminal justice system mean?
👉🏼 From Video Trials to Community Service as Punishment: The Center’s Reform of Criminal Laws


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