Overhaul criminal justice but not at democracy’s cost

If the intent is to efface the colonial criminal laws, the starting point should have been to put in place a system where the investigating authorities go about their tasks independently.
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)
Image used for illustrative purposes only. (Express illustration | Soumyadip Sinha)

While the desire to overhaul the criminal justice system of the country is welcome, it is somewhat intriguing that the government has chosen a path which is secretive and non-transparent.

It is now understood that a five-member panel was set up by the Ministry of Home Affairs in May 2020 to suggest an overhaul of our criminal justice system. Apparently, that panel put up a detailed analysis on various aspects with the intent to give the colonial-era criminal laws a domestic flavour. It is surprising that both the public and political parties, other than the BJP, are not aware of such an exercise. Nor was the legal fraternity, perhaps the most significant stakeholder, heard in the process. So, we are clueless about the nature of recommendations made by the said committee, and which of them were accepted by the government, as these are still not in the public domain.

This clandestine way of introducing bills is anathema to the democratic values and ill behoves of a government representing 1.4 billion people. If the intent is to efface the colonial-era criminal laws, then the starting point should have been to put in place a system where the investigating authorities go about their tasks independently rather than working in tandem with the political establishment.

That was the central feature of the colonial-era criminal justice system. The provisions under the Code of Criminal Procedure, which allow a police officer to arrest on the basis of suspicion, were central to the colonial-era mindset. Rampant arrests were made without proof, merely upon suspicion, to quell the brewing opposition of the people of India to British occupation. The power of arrest is an extreme power which should be exercised with abundant caution and only when the officer in charge of a police station has some prima facie proof of culpability.

In other democratic jurisdictions of the world, a person is deprived of his or her liberty only when there is prima facie proof available with the police officer. When an individual is arrested, the police officer is required to produce the person in custody before a jurisdictional magistrate within 24 hours, excluding the required transit time. It is during this process that the magistrate is informed of the need for police custody. Mechanically, the magistrate would allow the police officer custody for a certain number of days.

If the government wished to overhaul the law, the starting point should have been to include the provision in the reformed law that gave the police officer the power to arrest not on suspicion alone but on the basis of prima facie proof of culpability. What we see now is that not just the police officer but enforcement officers, too, are exercising power to arrest without proof and even without suspicion. This is far beyond the colonial mindset and unknown to the criminal justice system.

It is a matter of even greater concern when the higher courts of the land uphold such arrests, even though they have the solemn obligation to protect the liberty of citizens.

Bharatiya Nyaya Sanhita, 2023 (BNS), chooses to ignore these overarching issues, which are the after-affects of colonialism.

The most regressive provisions of BNS relate to offences by public servants. Under Section 254 of the BNS, if a public servant prepares a record which he knows to be incorrect and therefore causes loss or any injury to the public, or through such records intends to save a property from forfeiture or other charge to which it is liable by law, the public servant may be punished for three years.

What is even more serious is Section 255, which applies to judges being public servants. So, if a judge pronounces, at any stage of judicial proceedings, any report, order, or verdict which he knows to be contrary to law, he is liable to be punished for up to seven years of imprisonment. I believe every judgment that is rendered by a judge is on the assumption that it is consistent with the law. I guess now the executive will decide whether such an order or judgment is contrary to the law and may attribute a corrupt or malicious motive to the judge. Which judge in these circumstances, especially in the lower judiciary, will render a judgment against the government? Those in the higher judiciary will also be reluctant since such motives can be attributed to any judge.

The message to the judiciary is that it is time to conform. Even police officers who confine people are liable to be prosecuted if such confinement is contrary to the law. This will ensure that the police officer acts at the behest of those in power. These provisions, if brought into force, will render our criminal justice system subservient to the political class.

The claim that this government wanted to get rid of the criminal justice system of the colonial era is not just to obfuscate the truth but to give greater powers to the police officer in implementing the laws of this country.

Though the home minister said sedition as an offence has been removed from the Penal Code (1860), it is far more dangerous in its new avatar. The new provisions seek to expand the definition of waging a war against the Government of India.

Section 150 stipulates that whoever, by words spoken or written or by signs or in any other fashion as set out in the said section, indulges in any subversive activity or endangers the sovereignty, unity and integrity of India, may be sentenced for life. There are also provisions which will prevent protests in public places and make those harbouring protesters liable to be prosecuted.

Such laws, instead of reforming Macaulay’s Penal Code, are more regressive than the Code. In fact, these laws suggest that the present establishment considers itself as the new breed of rulers in India, who hope to stay here forever. I hope the country stands up to ensure that we remain a democratic nation.

(Views are personal)

Kapil Sibal

Senior lawyer and member of Rajya Sabha

(Tweets @KapilSibal)

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