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The bill was expected to codify much of this new jurisprudence in dealing with death penalty cases, if not to abolish the death penalty itself—which has been a longstanding demand of several sectors of civil society. The new procedural bill gives the Supreme Court only the discretion to order further investigation before confirming the death sentence.
Welcome provisions
Welcome additions to the bills are those relating to automatic bail for first-time offenders who have been held in detention for a third of the maximum applicable sentence (this is currently available when the detention they are subject to is half the prescribed period), and video recording of the statement for victims of rape or those suffering from Mental health impairment at their place of residence in the presence of parents/guardians/local social workers/interpreters, sixty-day period for indictment (extendation in the indictment filing period (which delays possibility of bail) forensic experts to visit serious crime scenes and videotaping.The thirty-day timeframe (with possible extension to sixty days) for sentencing after the closing of the arguments is likely to place undue pressure on the trial judges.While such timeframes could expedite the adjudication of cases, hasty judgments can often damage the larger cause of justice, especially in complex cases involving many witnesses and evidence.
It is interesting to see a provision providing for unilateral trial and conviction of defendants who remain absent after charges have been brought against them. These defendants have been treated as “outlawed criminals” until now. Convictions in such cases will now become very expensive. Prescribing lynching with the possibility of the death penalty is far-reaching in our current social environment. It will be interesting to see this provision applied equally by police and investigative agencies in the future.
It must be remembered that the structure of criminal law in India goes beyond these three pieces of legislation and is now filled with ‘special laws’ such as the Prevention of Money Laundering Act 2002, the Unlawful Activities (Prevention) Act 1967, and the Protection of Children. of the Sexual Offenses Act 2012, the Narcotic Drugs and Psychotropic Substances Act 1985, and many other laws contain key provisions on offenses and burden of proof and procedure. This scene will remain untouched. Most of these laws also provide for the establishment of special courts to expedite trials. Special courts are being set up for offenses against members of the local parliament/army under directives from the Supreme Court, and it was refreshing to see these laws codified in bills.
expected adjustments
The International Penal Code has been amended 78 times, the Code of Criminal Procedure 19 times, and the Law of Evidence 30 times as of 2018. Several amendments have emerged in light of the recommendations of the commissions of Judge Mallimath and Justice Verma, with a focus on the rights of minors, women and children. persecuted accused. The Insolvency and Bankruptcy Act 2016 was an example of “overhaul” but has already seen six amendments. One would expect the same thing to happen with bills once they are passed after being reviewed by the parliamentary committee.
Amendments and more, new laws always bring with them complex questions about their impact on pending cases. The basic rule is that while procedural changes are retroactive, substantive changes can only be prospective (unless otherwise specified). Added to this is the constitutional provision in Article 20 which states that no person may be convicted of a crime that was not a crime at the time the act was committed, or be sentenced to a higher conviction than that applicable under the current law. Although all three bills exclude their application to pending proceedings and trials, courts are likely to be bombarded with interpretation regarding this issue because case law can apply very differently in these circumstances. The end result can be extended delays in the actual trial of the crimes, which can frustrate both the prosecution and the defence, especially when the defendants are in custody. One can also expect petitions under Articles 226 and 32 to question the powers of many of the new provisions and their impact on fundamental rights. Here, the burden will once again shift to the judiciary to balance the firm executive authority and ensure a balance between the rights of victims and defendants alike.
There is also something to be said for the Hindi/Sanskrit naming of these bills. Since the sections themselves are in English, this appears to be just symbolic embellishment. I wonder how these laws will be cited before the judge in Madurai or Meghalaya for example. The constant talk in the legal world is about the move towards simpler statutes and drafts that are more understandable to the average litigant. Here, one will first have to go over the titles.
Article 1 of India’s constitution begins with the words “India, that is Bharat,” and the drafters of the bill are not shy about using the latter word to describe the bills as Bharatiya. However, the laws of “Indianization” would require more than just naming it in Sanskrit or Hindi.
(Aditya Sondhi is a Senior Advocate, Supreme Court of India. Research Acknowledgments: Advs Meghana TM & Navami Krishnamurthy)
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