Old Wine in New Bottle? Changes to criminal law by Amit shah – part 1

INTRODUCTION:

The entire legal family of India has shaken up since the proposal of some drastic changes in the criminal laws of our country. The Indian Penal Code (IPC) is one such substantive penal law set to be overhauled by the Indian Parliament. It is well known that “change is the law of society“. Fairly speaking, the laws are also not an exception to the rule of change. Before moving onto the material changes in criminal laws, we must have a clear idea of one of the significant laws we are talking about.

OUTLINE OF IPC:

The IPC is colonial general penal legislation that prescribes offences and their respective punishments. It was drafted by the first law commission of India under the chairmanship of Thomas Babington Macaulay in 1860. It received the assent of the Governor-General on October 6, 1860. Finally, came into force on January 1, 1862.

Since then, this 160-year-old enactment has been amended many times to somehow cope with societal changes. Most important among these are the amendments by Information Technology Act, 2000, Information Technology (Amendment) Act, 2008; the Criminal Law (Amendment) Act, 2013 and the Jammu and Kashmir Reorganisation Act, 2019.

This bulk work contains 511 sections in total, which is quite elaborative. Despite being subjected to much criticism, the “draughtsmanship” of this code is worthy of praise for continuing to be relevant for such a long time in history.

MAIN FEATURES OF IPC:

Despite being old, this statute possesses some remarkable features. such as:

• WIDE COVERAGE: As the short title of IPC indicates, it is a code. It covers a wide range of offences and prescribes their punishments. From the smallest crime of misconduct in public by a drunken person to the gravest of crime. for example, offences against state, public tranquility, human body, property and much more. It is the bulkiest penal legislation in the country.

• DEFINITE AND CLEAR PUNISHMENTS: The IPC provides for a clear and unambiguous punishment. It considers that facts and circumstances differs from case to case. Therefore, it leaves ample scope for the judges to exercise their discretion. For example, it provides the minimum and maximum punishment for the offence of rape, but it is up to the court’s discretion whether the case is rare enough to exercise the maximum or the circumstances are best suited for the minimum punishment.

• DEFENCES AND EXCEPTIONS: In IPC, the defences and the exceptions are clubbed in separate chapters. The general exceptions are contained in Chapter IV of IPC. While the general explanations are contained in Chapter II of the code. This is a very smart move to keep the length of the code short by avoiding duplication of the same expression.

• CRYSTAL CLASSIFICATION OF OFFENCES: IPC crystal clear classified the offences into Cognizable offences and Non- Cognizable offences, Bailable offences and Non Bailable offences. There is no need to refer to a separate schedule, a separate chapter, or a separate statute. It provides this information within itself.

• NATURAL LAW PRINCIPLES: IPC is based on the age-old principles of natural justice. Equity, justice, and good conscience are the base of the penal code. Much of its matter is inspired by the common law principles of English jurisprudence. It inculcates principles like “audi alteram partem”, “reformative theory of punishment,” and many more.

ALARMING NEED FOR CHANGE IN CRIMINAL LAW:

Now the question in your mind must be: why do we need to bring a change in criminal laws, if it contains such embarking features. let me draw you a brief sketch of the following reasons:

• SHIFT IN POWER: Since the shift in power from British hands to an democratically elected government of India, some of the other factors have also shifted. for example: the need of society, intention of legislature, historical background. Britishers had enacted this legislation so that it would facilitate their aim of ruling the country through oppression. However, today’s government has taken a diverted path towards justice. In the words of “Bertrand Russell, “law in origin was merely a codification of the power of dominant groups and did not aim at anything that to a modern man would appear to be justice.”

• OBSOLETE PROVISION: The restructuring of IPC is essential because its provisions became obsolete with time and technological developments. One of such example is offences related to counterfeit coins. These provision suffered severe depreciation as the society progress towards economic digitalization.

• NEW BREED OF CRIMES: With the advancement of time, various crimes which were not prevalent earlier have came in existence. For instance, cyber crime, mob lynching, white collar crimes, economic crimes and many other organized crimes. As a result of which the judicial system gets hanged by this glitch in the legislation of the country.

• UNNECESSARY CUMBERSOME LENGTH: The code is well criticised for involving unnecessary and cumbersome processes in the entire statute. Though, it is divided into chapters, within a single chapter there are huge varieties of offences. With slight to no change in the punishment, each forming a separate section in itself. This makes it very complex to remember and often ends up confusing laymen to lawyers.

• DEMAND FOR GENDER NEUTRALITY: Like rape there are many other offences that should not be subjected to gender. But IPC makes a clear exclusion of males from its ambit and scope. The demand for gender neutrality is alarming.

MOVE OF THE GOVERNMENT:

The Union Home Minister, Mr. Amit Shah, introduced the Bharatiya Nyaya Sanhita Bill, 2023, in Lok Sabha on August 11, 2023. This new bill seeks to repeal the age-old Indian Penal Code. The new Bharatiya Nyaya Sanhita Bill will have 356 sections in total. This bill aims at amending a total of 175 sections. It will repeal 22 sections of the IPC. It will add 8 new sections to the new penal law of the country. 

However, the said bill has been referred to a parliamentary standing committee chaired by BJP Rajya Sabha MP Brijlal. This committee will have a deep discussion over the bill clause by clause to come up with comprehensive recommendations for the legislature. After this report, the government will decide whether to incorporate the recommendations or not.

Thereafter the debating and voting procedures will start in Lok Sabha. After securing a simple majority in favour, it will be passed to the Rajya Sabha. There again the upper house will debate and it will be put to vote. If it gets passed by both houses, it will be presented to the president. Upon President’s assent it will become the law of the country.

FEATURES OF THE BHARATIYA NYAYA SAHINTA BILL:

Some of the important upcoming changes in the criminal law that require written attention are as follows:

1. Inclusion of organised crimes: In simple terms, “organised crimes are planned crimes that involve a large number of members acting cooperatively for a long time and is controlled by a structured group”. Cybercrime, money laundering, are some examples of organised crimes. The new bill introduces these crimes in its contents.
2. Made room for terrorism: BNS, 2023 Bill have introduced for the very first time in the history of Indian legal system, a comprehensive definition of terrorism. The definition in itself is very wide. It covers act committed beyond India or abroad to disturb public order or threaten unity and integrity of the nation.
3. Adds Mob Lynching as an offence: Mob lynching is a form of violenceby mob. Here a mob of people assumes the power of a judge over a presumed offender and executes torturous punishment.The words of Martin Luther King, Jr. scream for a mention here, he said: “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important”. After many chilling incidents that created menace in society, it has been made an offence and is now punishable with maximum punishment, i.e., capital punishment.
4. Community service: The bill proposed community service as a form of punishment for various crimes. It will benefit in three ways. First, by bringing effectiveness to the reformation mechanism. Second, by overcoming the congestion of prison. Third, by contribution to the society.
5. Altering Defamation: One of the new changes in criminal law by BNS is the alteration in the punishment of Defamation. Now, it includes community service as part of the punishment It will make it very easy for the judges to provide proportionate punishment.
6. Speedy process: The bill prescribes a maximum time limit of 180 days for filling out the charge sheet. The judge has to pronounce the verdict within 30 days after the conclusion of arguments, extendable by another 30 days. A maximum of two adjournments is fixed. As a result, the problem of vexatious trials will vanish. Justice will be administered speedily to the victims.
7. Repealed sedition: As noticed by the Supreme Court of India, the provision of sedition was being misused a lot in recent years. This new law will repeal Section 124A of the IPC. However, many new offences like separatism, armed rebellion against the government, and offences threatening the sovereignty of the country have been added to the bill.
8. Offences against Women: Section 69 of the BNS bill, 2023, proposes 10 years imprisonment for sexual intercourse with women on false promises of marriage, a job, promotions, or by hiding identity. It showed a strong and strict approach towards ensuring protection for women’s rights.
9. Decriminalisation of Adultery: Obeying the Supreme Court’s ruling, the new law on criminal justice has decriminalised adultery. It omits it’s provision from the statute. This shows a new perspective or a new eye towards individual autonomy.
10. A boon for the LGBTQ+ Community: The BNS bill declared the exclusion of punishment for unnatural sexual offences between two consenting adults. Now, this will not attract punishment if consented. This shows a welcoming approach towards the recognition of the basic rights of the LGBTQ+ community.
11. Murder reformed: Section 302 of the IPC is now covered under Provision 101 of the BNS Bill. The punishment of murder is not changed. A new clause (2) has been inserted, which makes murder by a group of five or more persons acting in concert on grounds of race, caste, community, sex, place of birth, personal belief punishable with minimum of 7 years punishment, which may extend to life imprisonment or death sentence
12. Provision for Snatching: A new change to criminal law is addition of provision for snatching as a offence under section 302 of BNS Bill. Definition follows as, “Theft is ‘snatching’ if in order to commit it, the offender suddenly or quickly or forcibly seizes, grabs or takes away any moveable property from the person’s possession. It lays down as imprisonment of up to three years with the liablilty of fine.
13. Suicide De-sympathised: Section 224 of the BNS bill, 2023 provides for suicide attempt to compel public servant. It says that whoever attempts to commit suicide with intention of compelling the public servant in the due discharge of his duties will be punished with simple imrprisonment of 1 year or with fine or with both and also to the punishment of community service.
14. Stricter towards juvenile protection: Earlier under IPC, gang rape with under 12 already attracted capital punishment. Now, Gang rape with a minor under 18 years of age is made punishable with death by the new bill to criminal reformation.
15. Other change in criminal law: Other than these main changes, it also introduces some other embarking changes in criminal law as well and these are:

• summary trials for petty offences,
• provision of recording a sexual victim’s statement by a woman Magistrate at her house,
• making police accountable for arrest,
• proclaimed offender can be tried in absentia,
• provision for confiscation of properties with court approval,
• videography of search and seizure is an digital change in criminal law
• involvement of the forensic team in offences punishable with 7 years or more,
• strengthening witness protection

ADVANTAGEOUS AMENDMENTS:

BNS Bill,2023 will strike through many targets with a single arrow. It is not the first time that penal law is getting amended. In fact, IPC have been amended for 78 times since its enactment. This not only makes it seem complex but also burden-some for future revisions.

• Amended all at once: The BNS Bill will amend this whole law “in toto,” all at once. That means it will change the criminal law all at once.

• Ensuring speedy disposal: It is also legally forecasted that this Bill will help in achieving the goal of removing dust from the long pending court files. Set time limits will solve the issue of pendency in Indian courts.

• A noble transformation: It is anticipated to transform the foundation of criminal laws from punitive theory to the reformative and rehabilitative theory of punishment. In the words of Mahatma Gandhi, “Hate the sin, not the sinner“. This will be adopted in the criminal justice system.

• Widened reach of justice: It shows an awareness towards the modern principle of justice that “Justice delayed is justice denied”. It streamlined many provision to enable justice hug everyone who is deprived of it.

• Keep with Modern crimes: It could also be said that the new bill is formed after studying very well the criminal behaviour, undetected criminal acts, underworld offences. It will in turn help in combating these crimes at a ground level.

• Inherent Constitutional spirit: The new Bill have contained in itself the pure spirit of our noble constitution in many aspect. From providing special care to women and children to protecting the right to life an human dignity for all section or classes of citizens.

HURDLES AHEAD:

IPC is the basics for every law student, teaching faculty, book author, Legal aspirant, barrister, and judge, as well as an inspiration for the law makers of the country. Therefore, the proposal of change in criminal law didn’t receive as much of a positive response from society as expected. Sadly, it has also become a source of mockery through “memes” prevalent in the legal field. But we should know that, “Criticism in a democracy should take more research than supporting speech”.

A very famous rule of interpretation of statute, is the Mischeif Rule. It states that to understand any law, the intention of legislature behind it, the object it has came for must be seen. These are the some facts which will help us in understanding the legislature intent:

• Laymen are of the opinion that the proposal for change in criminal law is just an electoral agenda of the government. The government stated that these reforms were under preparation for the last 4 years of the government’s tenure.

• The union home minister also stated that the government has received suggestions from the 18 states, six union territories, the Supreme Court of India, 16 High courts, 5 judicial academies, 22 law universities, 142 Members of parliament, 270 members of legislative assemblies, and also the public.

• The BPRD (Bureau of Police Research and Development) received responses from all the IPS officers and state and central forces. So, it has been considered fairly for a long time.

• The home minister said, “The colonial-era laws were meant to protect the state and punish the subjects, while the proposed changes are meant for deterrence and ensuring justice to the victim. Justice delivery will be central to the new legal architecture. SO, we can say that the Union Law Department took it in view that “law should not be a tyrant but a servant, not an obstruction but an aid to justice”.

• Further, he also said that the law’s main objective is not to punish anyone but “Justice“, however whenever required they will also serve as a deterrence for the prevention of crime.

• Other than public criticism, there are many other problematic challenges also ahead. One of it is, proper and accounted execution. It is a worldwide stain on the legal system of our country that,” laws are made but not enforced in India”. For the laws to be effective, the machinery must endeavor towards effective execution with proper revision.

• There is no denial that society is a dynamic element, the laws to bring order cannot be stagnant. Changes in criminal law is essential for preventing society from rotting with crime. Law making is not a one time job, it must be done continuously, amended continuously, backed up with feedback on regular intervals, inculcate major rulings of the courts in itself. It should walk with development not behind development.

As a society with ambitions for growth, we must remember:

"There are not enough jails,
 Not enough police, 
To enforce a law, 
Not supported by the people"