The rather exhaustive changes the Union government proposes in the country’s criminal laws is a major initiative to Indianise, contemporise, and humanise them. They have largely remained untouched since their promulgation during the British Raj.
After a thorough exercise spread over several years, Home Minister Amit Shah came up with three bills—Bharatiya Nyaya Sanhita (Indian Penal Code), Bharatiya Nagarik Suraksha Sanhita (Criminal Procedure Code) and the Bharatiya Sakshya Adhiniyam (Indian Evidence Act). They seek to overhaul the criminal laws in the country comprehensively.
While the Indian Penal Code is from 1860, the Criminal Procedure Code has been in vogue since 1882, and the Indian Evidence Act has been in force since 1872. As Amit Shah said, the British made these laws to suit the colonial rulers, not the people of the land, and these laws were symbols of slavery. Punishment rather than justice was central to these laws. Therefore, there was a need to look at them comprehensively and draft new legislation attuned to the Indian situation and context.
This exercise is also in tune with the desire of PM Narendra Modi to review British laws and repeal the ones which have no relevance. Why have so many outdated laws remained in the statute book till now? As the prime minister said, this is the result of ‘Kalpana Daaridriya’ (poverty of imagination) that has bogged this country for decades after Independence. Also, sheer laziness among those who governed the country.
While it is true that these laws underwent some changes since Independence, it must be said that particular exigencies necessitated most amendments. For example, following the tragic rape and murder of Nirbhaya in 2012, in which one of the accused was a juvenile just under 18, lawmakers relooked at the definition of a “juvenile”, subsequently allowing, under the Juvenile Justice Act of 2015, for juveniles between age 16–18 to be tried as adults if they are accused of heinous crimes. Similarly, following a considerable number of dowry deaths in North India in the 1970s and 1980s, the criminal law was amended to incorporate provisions specific to “dowry death” and to prescribe strict punishments. An amendment also put the onus of proving innocence on the husband and his relatives in cases where a woman died in unnatural circumstances with evidence of cruelty and dowry demands within seven years of marriage—304B (IPC) as well as 113A and 113B (Indian Evidence Act).
However, no government ever considered having a 360-degree view of the criminal laws and criminal justice system to Indianise these and discard the vestiges of British rule.
Another significant aspect of the proposed changes is the attempt to contemporise the law. The proposed changes make it mandatory for police to electronically record the proceedings during search and seizure operations. They also enable courts to record testimonies via video conferences and collect evidence stored on mobile phones, computers or pen drives. The new Evidence Act has declared: “Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall have the same legal effect, validity and enforceability as paper records.” Thus, technological advances were factored in. Similarly, the amended laws promote the use of forensic science in gathering evidence.
Apart from modernisation, the new bills seek to humanise criminal laws because the electronic recording of search and seizure and testimonies will ensure a fair deal for the accused and hasten trials. All these measures relate to the human rights of persons charged with crimes. Another significant attempt to humanise the law is evident in the provision in the new CrPC which directs jail superintendents to notify undertrials completing one-third of the maximum sentence and release them, pending completion of the trial. The deletion of sodomy from the penal code is yet another example of the attempt to humanise the law.
Finally, a word about scrapping the law on sedition. While the government gave in to the demand to remove “sedition” from the list of offences, it chose not to close its eyes to activities that disturb the unity and integrity of India or imperil its sovereignty. In other words, while ‘Raj Droha’ (activities perceived as anti-government) is no longer an offence, ‘Rashtra Droha’ (anti-national actions) deserves the severest punishment. The sedition provision (Section 124A) in the IPC awarded severe punishment to a person who, through words, signs, or visual representations, “brings or attempts to bring into hatred or contempt or excite disaffection towards the government established by law in India”. This was the core of the sedition provision. It stands excluded. It has been replaced by Section 150, which says, “whoever … excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India” shall be punished with imprisonment for life or with imprisonment up to seven years. But this excludes the disapprobation of the government’s measures to seek their alteration by lawful means.
Section 150 is a must to preserve the nation’s unity and integrity, but the exclusion of Raj Droha ensures against curtailing freedom of expression. It seems the government has drawn a fine distinction between activities against the government and activities against the nation.
The new law pays special attention to offences against women and children and brings them all under one separate chapter—Chapter V—and under sections 63 to 97. The law pertaining to gangrape has been made more stringent and persons indulging in gangrape of a woman below 18 years of age can be awarded the death sentence. Earlier, the death sentence was prescribed only if the girl was below 12 years.
On a lighter note, one must say that since the overhaul of the Indian Penal Code, citizens familiar with some of its provisions which have entered the popular domain, like Section 302 for murder and the even more popular Section 420 for cheating, will have to familiarise themselves with the new numbers in the revised IPC. It will now be Section 99 for murder and Section 316 for cheating.
A Surya Prakash
Vice-Chairman, Executive Council, Prime Ministers Museum & Library, New Delhi