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EDITORIAL ANALYSIS : New Bills and a principled course for criminal law reforms

 

 

Source: The Hindu

 

  • Prelims:, IPC, CrPC, Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, Bharatiya Sakshya Bill, Indian Evidence Act, Directive Principles of State Policy etc
  • Mains GS Paper II & IV: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc

 

ARTICLE HIGHLIGHTS

  • The introduction of three Bills:
    • Bharatiya Nyaya Sanhita to replace the Indian Penal Code
    • Bharatiya Nagarik Suraksha Sanhita to replace the Code of Criminal Procedure
    • Bharatiya Sakshya Bill to replace the Indian Evidence Act

 

INSIGHTS ON THE ISSUE

Context

Major provisions of the three new bills:

     

 

Significance:

  • The new laws aim to expedite justice delivery while protecting citizens’ rights and addressing modern challenges.
  • They emphasize accountability, digitization, and justice rather than mere punishment.
  • In May 2020, an Expert Committee led by Ranbir Singh was established to propose reforms in the realm of criminal law.

 

Reformatory measures:

  • The Bills exhibit several moderative modifications, including linguistic adjustments for gender inclusivity and replacement of outdated terms such as ‘insanity’ with ‘mental illness’.
  • There is a measured reconfiguration in the punitive degrees for minor and serious offenses.
  • The integration of ICT applications with the criminal justice process
    • Although the scope is limited, innovations such as trial in absentia and the introduction of community service are commendable.
  • The offense of sedition has been judiciously tempered to prevent misuse, facilitated by introducing a test for criminal intent.
  • Newly created offences such as terrorism, organised crime, mob lynching, and negligent acts adds novel dimensions.

 

Concerns:

  • Ascertaining whether the fundamental tenets of criminal jurisprudence are being upheld throughout this process.
    • The trajectory of these reforms and their operational dynamics remain to be determined.
  • Amended laws must revolve around striking a delicate equilibrium between state security imperatives and individual freedoms.
    • The efficiency of the revised laws hinges on their capacity to curtail any potential misuse by law enforcement agencies effectively.
  • Criminal laws are generally detested as they fail to discharge their public function as a protective tool for its subjects.
    • Reforms in laws typically fail on this count.
  • Criminal laws in India further a class divide as the rich and the resourceful get better access to justice than the marginalized and the vulnerable.
    • The principle of equality and equitability, therefore, becomes an essential check on criminal law reform.
  • The political executive has consistently sought to wield criminal law as a pre-emptive tool.
    • Criminal law remains a strategic power asset for the state.
  • Concepts of risk, endangerment and dangerousness continue to contaminate the criminal law jurisprudence in great measure.
    • The proliferation of preventive approaches to criminal law raises legitimate concerns.

 

Way Forward

  • The Bills hold the potential to shape the future landscape of criminal law, Therefore, the task of testing their sustainability; efficacy; adherence to rule of law; and, justice delivery capacity, becomes paramount.
  • In ‘Crime, Reason and History’, Alan Norrie states: “Far from being free-standing foundations for a rational criminal law, the central principles of the law are a site of struggle and contradiction.”
  • Revision of India’s Macaulay-era criminal law is undeniably complex, as the functionaries and stakeholders of this legal framework have been conditioned by the same for over 162 years.
  • The Indian criminal law is undoubtedly an instrument of social control, molding and guiding us in more ways than one.
  • There is a need to study the principled basis of the harm or the moral/legal offense caused by such criminalized conduct.
  • The Bills face a pivotal challenge in bridging the gap between rhetoric of the law and its reality.
    • The potency of reforms hinges on their alignment with the criminal justice system’s capacity to implement it effectively.
  • Regardless of their textual merit, numerous legal provisions remain infeasible due to systemic shortcomings.
    • The effectiveness of the reforms will also be tested on the basis of its impact upon the status of the vulnerable, the victims and the poor.
  • As the Bills are placed before the select committee for its consideration: It is expected that committee will allow greater engagement to improve the drafts in terms of both language and substance.
  • The space must be utilized to accommodate greater provisions concerning victims’ rights and participation, hate crime, bail, sentencing framework and legal aid in the pending Bills.
  • The envisioned criminal law reforms must be made in a manner that fosters the rule of law and fortifies the pursuit of justice for eons to come.

 

QUESTION FOR PRACTICE

Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)