- By Sutik Biswas
- India Reporter
Last week, India’s ruling government unveiled three new bills in parliament, saying they would lead to a “major transformation of our criminal justice system”.
Bills have been prepared to repeal and replace three criminal laws. The Indian Penal Code and the Indian Evidence Act are ancient laws dating back to the colonial era, while the Criminal Procedure Code is half a century old. The bills have been referred to a parliamentary committee for further discussion. Home Minister Amit Shah says their aim is “justice, not just punishment”.
India’s criminal justice system needs urgent reform: poor police investigations often lead to catastrophic miscarriages of justice; Prisons are filled with criminal trials, and slow-moving courts are overcrowded with some 50 million cases.
Legal scholars say the bills contain some important changes that cover a wide range of the judicial system.
On the one hand, they make crimes such as terrorism, corruption, lynching and organized crime under penal laws. It allows people to register a police complaint at any police station, regardless of where the crime occurred. They suggest videotaping searches and seizures and increasing the use of electronic and forensic evidence during the investigation. They introduce community service as a new form of punishment. They are calling for speedy justice through video trials, and trials in absentia for the accused.
However, experts are skeptical about how some of these laws work. Anup Surendranath, a law professor at Delhi’s National Law University, says the way the new offenses have been framed – acts endangering sovereignty, organized crime, lynching by mobs, terrorism, rape by false promise of marriage – “does not They are still so opaque that they end up giving the police unreasonably wide powers of arrest.” “These vague provisions perpetuate the exercise of police powers in ways that are not constitutionally acceptable,” he says.
For decades, successive governments have used the colonial era in India Strict sedition law Against students, journalists, intellectuals, social activists and critics of the authority. The government now claims it has taken the “historic” decision to repeal the controversial law.
Not quite, experts say. The sedition law has been replaced by another in the new bill that penalizes “acts endangering the sovereignty, unity and integrity of India”. In other words, experts say, this is in fact an expansive definition of sedition itself. “Fitna should have ended,” says Naveed Mehmood Ahmed, a senior fellow at the Vidhi Center for Legal Policy, a Delhi-based think tank. “It has been preserved, and perhaps even enhanced.”
Experts point out that the bills ignore some crucial aspects. Marital rape has not been criminalized although there are strict laws in India to deter sexual violence against women. (The Supreme Court is also preparing to begin hearing petitions to criminalize it.) Crimes that criminalize speech – including sedition and obscenity – require reconsideration.
Then there are semantics. Mrinal Satish, a professor of criminal law at the National Law School of the University of India, who is based in Bangalore, points out that the terms “shame” used in law refer to a crime. “Affronting a woman’s modesty” Should be taken out. The bills should have also included a “reconsideration of crimes related to Religion and infidelity“Some of which are still too vague and vague to be considered criminal rulings,” according to Mr. Ahmed.
Some proposals seem vague. Mr. Ahmed highlights a provision that provides for a minimum sentence of seven years in prison, life imprisonment, or even the death penalty for every member of a mob – an assembly of five or more people – found guilty of murder on the grounds of race. sect and society.
“I’m not sure what the most appropriate punishment would be in this case, but definitely not the death penalty. Imagine sentencing a crowd of 50 people to death for murder,” Ahmed says.
“Also, the biggest problem in these cases is the investigation, the evidence and the way the trial is conducted. I do not know how useful it is to link this crime to murder when we know that there is Social and political factors that may affect these cases. This may require a completely different approach to determining guilt, collecting evidence, and investigating.
Experts agree that many provisions of India’s 163-year-old Penal Code are embarrassingly outdated. There is a penalty for a slaughtererand the The crime of obscenity It is based on the ideas of Victorian morality. “Except for removing the reference to thugs and punishing them, the new bill retains other outdated parts and definitions,” says Professor Satish. “Seeking to change an existing law on the grounds that it was enacted during the colonial period is not sufficient justification.”
On top of that, there are enormous institutional challenges, experts say. For example, the bills propose that every crime scene should be subject to a forensic investigation. “But is India’s forensic system ready to handle that? Everyone knows it’s not,” says Professor Surendranath.
Most experts say the new bills “more than 80% retention” From the 160-year-old Indian Penal Code, developed by the British historian Thomas Babbington Macaulay. They also say that the 50-year-old Criminal Procedure Code is regularly updated and amended, including in 2018. “This is not a comprehensive reform,” says Professor Surendranath. “The majority of these bills retain exactly the same existing provisions under them New names“.
Experts say that rather than scrapping laws and dealing with the massive administrative challenges that would follow, India could have amended existing laws. Countries such as Singapore, Malaysia, Sri Lanka and Bhutan still use colonial penal code – and Singapore has recently made amendments to modernize it and introduce existing requirements. India too She changed and updated her sexual violence law in 2013. “This could have been the way forward, not what the bills propose to do,” says Professor Satish.
BBC News India is now on YouTube. click here To subscribe and watch our documentaries, annotations and featured films.
Read more India stories from the BBC: