Criminal law

Menaka Guruswamy on Centre’s Criminal Law Bills: Weakening the guardrails of criminal law

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With a vague definition and lack of procedural safeguards, the inclusion of organized crime in general criminal law not only puts ordinary citizens at risk, but also jeopardizes the rule of law and the right to a fair trial.

Centre's Criminal Law Bills, Bharatiya Nyaya Sanhita, Criminal Law, MCOCA, Common Criminal Law, Indian Penal Code, CRPC, Criminal Law Change, Indian Express NewsState law reform efforts run counter to the established legislative practice of having separate and distinct harsh “special laws” with procedural checks and balances. (Illustration by C.R. Sasikumar)

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One general pattern in Indian criminal law is that crimes that are particularly difficult to regulate and articulate internally, although having a wide-ranging impact on society, are dealt with by “special laws”. Although these special laws are harsh in terms of punishment, they are strict in the procedural guarantees they provide to defendants. The focus is on checks and balances in the state’s pursuit of prosecution and the accused’s efforts to defend itself.

Any diminution of the procedural protection provided by general criminal law will be checked in these special laws. There is a deviation from this general pattern with the introduction of three bills on August 11th Lok Sabha by the central government. These bills aim to bring about a radical change in criminal law.

The Bharatiya Nyaya Sanhita, 2023 (replacing the Indian Penal Code, 1860), the Bharatiya Nagarik Suraksha Sanhita, 2023 (replacing the Code of Criminal Procedure, 1973), and the Bharatiya Sakshya Bill, 2023 (replacing the Indian Evidence Act, 1872) were tabled in the House Representatives in Parliament. In my previous article (‘Custody issue’, IE, August 19), I discussed the reforms – positive and negative – of the Bharatiya Nagarik Suraksha Sanhita Party for 2023.

State law reform efforts run counter to the established legislative practice of having separate and distinct harsh “special laws” with procedural checks and balances. Current efforts show that private laws are being absorbed into general criminal law – without any of the necessary procedural safeguards. This will make it impossible for the accused to defend herself, and will bring into the criminal process many innocent people, who will be punished by the process and very few convictions will be returned. This is troubling, because the purpose of criminal law is not to persecute, but to prosecute competently, giving defendants a fair opportunity to prove their innocence.

Let me make my point. Special legislation includes such laws as the Prevention of Money Laundering Act 2002 (PMLA) and the Maharashtra Organized Crime Act 1999 (MCOCA). Both laws are clarifications of special legislation aimed at combating alleged crimes and which are detailed in how they are planned and implemented. While the penalties are harsh, they both try to strike some balance in the form of procedural safeguards.

The Anti-Money Laundering Act Act suffers from many shortcomings – we will discuss efforts to include “money laundering”, a special statutory offense, in the general criminal law through the Criminal Codes in subsequent columns. In this column, I will focus on the ‘organized crime’ provisions that have been introduced in common criminal law code such as the Bharatiya Nayaya Sanhita Act, 2023 (BNS). At present, organized crime is mainly dealt with through the MCOCA Act, which is applicable in both the state of Maharashtra and the National Capital Territory. Delhi. Other countries have their own versions of MCOCA. However, the BNS brings it into the general criminal law by having provisions defining and punishing organized crime within this law.

The BNS lists organized crime under Chapter VI of the law, which relates to “crimes affecting the human body”. In the IPC, the equivalent chapter dealing with “crimes against the body” includes classic criminal offenses such as murder and intentional killing that does not rise to the level of intentional killing. It is within this classic framework that the somewhat complex “organized crime syndicate” crime is presented. According to the BNS, an organized crime syndicate means “a criminal organization or group of three or more persons, acting alone or collectively, as a syndicate, gang, mafia or criminal ring, engaging in the commission of one or more serious crimes”. or are involved in gang crime, extortion and mass organized crime.”

The BNS defines “organized crime” as “any ongoing illegal activity including kidnapping, theft, land grab, murder, economic crime, trafficking in drugs, people, weapons or prostitution whether as a member of or on behalf of an organized crime syndicate”. “Organising using violence, the threat of violence, intimidation, coercion, corruption, related activities, or other illegal means to obtain a direct or indirect material benefit, including a financial benefit.”

This group also includes economic crimes, which include criminal breach of trust, forgery, counterfeiting of currency and valuable securities, financial fraud, running Ponzi schemes, mass marketing fraud or multi-level marketing schemes with the intent of generally defrauding people for fraud. Obtaining financial benefits or organizing large-scale betting in any form, money laundering and hawala transactions. It is as if the drafters of the bill had thought of all the possible offenses that could occur when three or more defendants were involved and put them into one impractical definition and stuck them into the bill. They are vague, poorly worded, impractical – everything that definitions shouldn’t be. The punishment is severe – anyone who “conspires or organizes to commit organized crime” is punished with a minimum sentence of five years to life. However, no guarantees are available at this time.

MCOCA has procedural safeguards against misuse of such a “law of hard and deterrent provisions” according to its statement of objectives. For example, Section 23 currently states that a police officer may not record any information about the commission of an organized crime without the prior consent of an officer below the rank of Assistant Commissioner of Police. Furthermore, no investigation may be conducted by a police officer below the rank of ACP. No “special court” may hear any offense under this Act without the consent of a police officer of the rank of ACP and above.

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MCOCA’s “special courts” are staffed by judges specially appointed by the government with the approval of the Chief Justice. Delhi supreme court. Such a judge should have experience as an Assistant Sessions Judge or former Sessions Court judge. Most importantly, authorization to intercept wire, electronic or oral communications is only permitted after an officer of at least the rank of Deputy Commissioner of Police, who oversees the investigation of organized crime, submits a request to the appropriate authority. A review committee composed of the Secretary General of the Forum DelhiThe Minister of Law and the Minister of the Interior review the orders of the competent authority.

In essence, MCOCA, an example of a special statute aimed at combating complex crime (organized crime), balances the severity of not only the punishment it imposes, but also the violation of privacy by wiretapping to further enhance the investigation, along with safeguards procedural. The legislator has paid great attention to the establishment of “special courts” and the qualifications of judges in terms of previous experience who will hear such cases. All this is absent from the proposed reforms. The principles of criminal law have been weakened, and the general public will suffer due to the lack of procedural protections and checks and balances. The right to a fair trial and the rule of law also become victims in this process.

The writer is a senior lawyer in the Supreme Court of India

© Indian Express (P) Limited

First published on: 02-09-2023 at 07:05 IST


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