DC Pathak | 14 May, 2024
The Chief Justice of India, D.Y. Chandrachud, addressing a conference
in New Delhi on "Advance of Criminal Justice System", on April 20,
lauded the new Penal Codes enacted by the Parliament in December last
year, described the development as a "watershed moment" and expressed
satisfaction that India was changing in synchronisation with our times.
He felt that implementation of the new laws would mark a
significant overhaul of the criminal justice system to better protect
the interests of victims and ensure a more efficient conduct of
investigation and prosecution.
He emphasised the urgent need for
capacity building in areas of forensic expertise, reorientation of
investigating officers and investment in our court system.
It may
be mentioned that with the avowed objective of freeing the country of
the colonial hangover on the justice system, the Indian Parliament
re-designated the Indian Penal Code, 1860; Indian Evidence Act, 1872;
and Criminal Procedure Code, 1973, as Bharatiya Nyaya Samhita Act,
Bharatiya Sakshya Act, and Bharatiya Nagarik Suraksha Samhita Act,
respectively.
The Chief Justice declared that the enactment of
these laws by Parliament "underscored India's evolving dynamics and the
pressing need for innovative legal mechanisms to address contemporary
challenges".
In bolstering the concept of punishment acting as a
deterrent against crime, the new law lays down the death penalty for the
rape of a minor and also for "lynching" -- the two black marks of the
contemporary crime scenario in India.
The Act replaced the Indian Penal Code of 1860 repealed 22 old sections, added 8 new ones and amended as many as 175 others.
A
new Section 69 punishes indulgence in sexual intercourse through
deception by way of making promises of marriage while concealing
identity.
"Snatching" has been made a distinct offence and a
severe penalty was prescribed for disseminating false information
through spoken words, signs or electronic means. This latter is also
meant to check criminal misuse of social media.
The new code for
the first time punishes an act of "terrorism" that was likely to
threaten India's unity, integrity, security, sovereignty or economy or
spread terror among the people domestically or abroad.
There has
been some expression of concern by civil society groups -- particularly
those building a narrative of "authoritarianism" against the present
government -- that the definition of terror activity was being stretched
to punish "anti-regime" criticism.
There is no doubt, however, in
the minds of average citizens that in this era of proxy wars, advocacy
of violence against a legitimate democratic government deserved to be
viewed seriously.
In what can be regarded as a progressive move
for dispensing justice, community service has been included as a
punishment for first-time offenders committing a petty crime.
Besides,
a new definition of "organised crime" has been incorporated in the
Bharatiya Nyaya Samhita Act to include among other things, kidnapping,
human trafficking and cyber crimes carried out to secure material
benefit.
The activities of members of an organised crime syndicate
are punishable with imprisonment of a minimum of five years -- going up
to a life sentence if there was no death -- and, including capital
punishment if a death was caused.
The new Bharatiya Nagarik
Suraksha Samhita Act has repealed 9 sections of the old Act, introduced 9
new sections and modified 160 earlier sections. It mandates forensic
investigation for crimes punishable with imprisonment of seven years or
more. It requires forensic experts to visit the scene of crime, gather
clues and document the process.
Electronic mode of giving evidence
is permitted at trials, enquiries and proceedings under Section 173 and
it is laid down under Section 356 that a judgement can be pronounced in
the absence of a proclaimed offender who had avoided the trial.
A
great reform is the introduction of the concept of Zero FIR to be
registered by a police station on receiving a complaint even if it did
not have the jurisdiction, for being forwarded to the right police
station. The new Act establishes deadlines for framing of charges and
prescribes communicating the progress of the investigation to the
victims within 90 days of the complaint.
The Bharatiya Sakshya Act
replaced the Indian Evidence Act of 1872 after introducing one new
section, removing 5 sections and altering a total of 23 other sections.
In a pathbreaking reform, it recognises electronic records as primary
evidence under Section 57 and permits electronic presentation of oral
evidence enabling remote testimony.
It expands the concept of
joint trial under Section 24 of multiple people -- some of whom might
have failed to respond to an arrest warrant. An important advance is the
direction the Act gives for audio-visual recording of search and
seizures to protect civil liberties.
Judicial scrutiny of the same
would safeguard the rights of citizens against procedural improprieties
committed during search and seizure.
Legal minds particularly of
the opposition, have expressed misgivings that many of the new
provisions endangered civil liberties and enhanced the power of the
police over citizens in certain key areas.
Under the Bharatiya
Nagarik Suraksha Samhita Act and the Bharatiya Sakshya Act, police
officers could compel the accused persons to produce their digital
devices for accessing their contents -- the rules about how to handle
these devices were still not laid down -- and the concern was that
police could look into privileged communications of the accused with
their lawyers and their spouses which were otherwise protected.
For
offences with a maximum punishment of three to seven years of
imprisonment, the police are permitted to conduct a preliminary inquiry
within 14 days of the complaint to decide whether an FIR was to be
registered -- this seemed to be against the judicial mandate that FIR
had to be registered on any complaint alleging a cognisable offence.
It is apprehended that this might allow the police to refuse to register an FIR even on a legitimate complaint.
The
provisions made in the new laws can improve the justice system but they
could also be put to misuse by the authorities wielding power.
Supervision of senior officers should be able to check the latter.
With time under judicial scrutiny, hopefully, the pathway to improvement will be opened up.
The
introduction of two new offences in the Bharatiya Nyaya Samhita that
did not exist in the Indian Penal Code, have invited an acrimonious
debate in human rights groups. They relate to a "terrorist act'' and an
act "endangering sovereignty, unity and integrity of India".
It is
said that the definition of a "terrorist" act was the same as provided
in the Unlawful Activities (Prevention) Act which was worded loosely
enough to allow police to book political dissidents. It punishes even
the "advice" and "incitement" to do something that amounted to a threat
to India's unity, integrity, sovereignty, security and economy.
Further,
the inclusion of the offence of publishing "false" or "misleading"
information jeopardising the sovereignty, unity, integrity and security
of India -- it is alleged -- would enable the state to target media
outlets and journalists who revealed information inconvenient to the
government.
In a nutshell, some of the new laws have been run down
by the critics -- mostly the Opposition and civil society groups -- as
an instrument in the hands of the regime for suppressing dissent and
advancing its political interests.
The people of India are
sensitive to issues of governance and human rights but they would
appreciate any genuine reform in the maintenance of law and order and
dispensation of justice of which police is perhaps the most important
systemic component.
Conscientious citizens would appreciate the
deterrent law enacted for offences like the rape of a minor and mob
lynching that had an unsettling impact on society as a whole.
(The writer is a former Director of the Intelligence Bureau. Views are personal)