He has introduced three bills recently – the Bharatiya Nyaya Sanhita Act to replace the Indian Penal Code; Bharatiya Nagarik Suraksha Sanhita Act to replace Criminal Procedure Code and Bharatiya Sakshya Bill to replace Indian Evidence Act – Transformation of criminal laws has ignited a wide range of reactions, highlighting pivotal aspects of criminal law reforms. Regardless of the initial objections, the nature and extent of the changes required months, if not years, of study, discourse and deliberation. However, in the midst of this unfolding discourse, the overriding challenge in the Indian context is to effectively guide these discussions to generate relevant and substantive contributions. Bills hold the potential to shape the future landscape of criminal law. Therefore, the task of testing its sustainability; effectiveness; Commitment to the rule of law; The ability to achieve justice becomes paramount.
In his seminal work, Crime, Reason, and History, Alain Nouri says, “…far from being stand-alone foundations of rational criminal law, the central principles of law are a site of conflict and contradiction.” Accommodating the collective aspirations of the public within the framework of criminal law reforms is an enormous challenge given the asymmetries between polarized popular opinions that must be balanced against the state’s view. It cannot be denied that the revision of criminal law in the age of Macaulay in India is a complex matter, as the employees and stakeholders of this legal framework have been conditioned to the same for more than 162 years. There is no doubt that Indian criminal law is an instrument of social control, shaping and directing us in more ways than one.
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It is too early to say whether the bills will lead to sweeping and fundamental changes to the legal landscape. The success or failure of criminal law reforms depends largely on their initiation, formulation, and subsequent approach to their continuation and oversight. The alleged 160 amendments pale in comparison to the profound challenges besieging India’s criminal justice system. Apparently, the bills also represent a plethora of missed opportunities.
Some corrective measures
At the same time, the assertion that these bills are harsh compared to their previous versions lacks merit. Instead, the bills offer several mild amendments, including language amendments for gender inclusiveness and the replacement of archaic terms such as “insanity” with “mental illness”. There is also a thoughtful reconfiguration in the penal grades for minor and serious crimes. The integration of ICT applications with the criminal justice process is noteworthy. Although the scope is limited, innovations such as trial in absentia and the introduction of community service are to be commended. The exclusion of attempted suicide and adultery brings the black text of the law into line with the decisions of the Supreme Court of India. It is worth noting that the offense of sedition was prudently mitigated to prevent its misuse, by introducing a test of criminal intent. Newly created crimes such as terrorism, organized crime, lynching and negligent acts add new dimensions.
The debate over bills should not revolve around ascertaining whether the changes will lead to positive or negative results. Rather, the central concern is to ascertain whether basic principles of criminal jurisprudence are upheld throughout the process. Currently, the path and operational dynamics of these reforms remain to be determined. However, we can systematically examine whether reforms adhere to the principled basis of criminal laws. The fundamental principle of such separation remains the extent to which reforms address the needs and concerns of people affected by crime and justice, particularly with regard to the enforcement of fundamental and legal rights. Major criticism of criminal law reforms stems from concerns about the potential significant infringement of individual freedoms. Therefore, the evaluation of the amended laws must revolve around achieving a careful balance between the necessities of state security and individual freedoms. In addition, the effectiveness of the revised laws depends on their ability to effectively limit any potential misuse by law enforcement agencies. Criminal laws are generally disliked because they fail to perform their public function as an instrument of protection for their subjects. Reforms in laws usually fail in this regard.
It is equally important to ask whether well-established principles of criminalization have been followed in the creation of new offences. There is a need to study the principled basis for the moral/legal harm or offense resulting from this criminal conduct. In addition, criminal laws in India increase the caste divide, as the rich and resourceful get better access to justice than the marginalized and powerless. Hence, the principle of equality and fairness becomes an essential check for criminal law reform. It can be said that the world of criminal law is facing a crisis of public confidence, which leads to a lack of legitimacy in this regard.
It is a fallacy to assume, without conclusive evidence to the contrary, that the population opposes crackdowns against terrorists or organized criminals. At the same time, the level of leniency or stringency in laws does not inherently shape public confidence in the criminal justice system. Therefore, future draft laws face a pivotal challenge in bridging the gap between the rhetoric of the law and its reality. The effectiveness of reforms depends on their compatibility with the ability of the criminal justice system to implement them effectively. Regardless of their textual merit, many legal provisions remain unenforceable due to methodological shortcomings. Finally, the effectiveness of the reforms will also be tested based on their impact on the situation of the vulnerable, the victims and the poor.
The origins of state power
Over the years, the essence of criminal law has been changed by the actors and agencies responsible for its enforcement, often rendering it ineffective. The political executive has consistently sought to use criminal law as a preventive tool. Criminal law remains one of the assets of the strategic power of the state. The concepts of risk, threat and seriousness continue to greatly pollute criminal jurisprudence. The prevalence of this preventative approach to criminal law raises legitimate concerns.
Since the draft laws are presented to the selected committee for consideration, it is expected that this committee will allow greater participation to improve the draft laws in terms of language and content. Space should be used to accommodate larger provisions on victims’ rights and participation, hate crimes, bail, the sentencing framework, and legal assistance with pending bills. The envisaged criminal law reforms must be undertaken in a manner that strengthens the rule of law and enhances the pursuit of justice over the coming eons.
JS Bajpai is the Vice Chancellor of the National University of Law, Delhi. The opinions expressed are personal