Sanjeev Ahluwalia | Unshackling or rebranding India's basic criminal laws?

The Union home minister has said he wants to unshackle India from its colonial legacy by proposing to repeal three long-standing laws and to substitute them with three bills that were tabled in Parliament last week. Lest the general public be misled into believing that this is just old wine in new bottles, he hastened to assure Parliament that this is a paradigm shift, which would put citizens at the centre of governance.

The three existing laws are the Indian Penal Code 1860 (IPC), the Criminal Procedure Code 1973 (CrPC) and the Evidence Act 1872 (IEA). One of these, the CrPC, has already acquired an Indian hue, five decades ago in 1973, when it substituted the old CrPC 1898. At the time, the substitution was driven by three factors.

First, to implement a recommendation of the First Law Commission 1959 about separating the judiciary from the executive fully to align with the constitutional framework of the separation of powers. Second, it incorporated a range of procedural changes to enhance speedy justice. Third, it signalled a major shift toward equitable justice by incorporating the provision of legal aid to an indigent person and a shift towards human rights sensitivity, by allowing representation against a proposed punishment before it is imposed. It has since been amended seventeen times -- the most recently in 2018 to enhance its workability and efficiency.

The proposed substitute to the existing CrPC 1973 will be the Bharatiya Nagrik Suraksha Sanhita. The new title in Hindi -- an Indian language -- is welcome but it fails to convey the intent of the bill, which is to codify the procedure to be followed in bringing criminals to book. It is the IPC which provides “suraksha”, or security to citizens, by laying down a series of “deterrent” outcomes (punishments) for criminal behaviour, and thereby theoretically induces socially compliant behaviour. A more appropriate name would have been Bharatiya Dandiniya Nyay Prakriya Sanhita -- loosely translated as “Indian Code of Criminal Law Procedure”.

The Indian Penal Code lists and defines the prohibited actions (offences) which attract penal outcomes like fines, incarceration in prison or execution (death sentence). These are classified under twenty-one heads. The major ones are -- offences against the State; offences against the public tranquillity; contempt of the lawful authority of public servants; offences against public justice like false evidence; offences against the human body; offences against property; offences against religion; criminal breach of contract; relating to marriage; against defamation; criminal intimidation, abetment to commit offences and criminal conspiracy. For each offence a punishment is prescribed.

This exhaustive code has been amended forty times since its inception prior to Independence in 1947 and thirty-five times after Independence, the latest amendment being in 2018. It is now proposed to be renamed as Bharatiya Nyay Sanhita. The renaming in an Indian language is par for the course but the choice of title smacks of ambiguity and imprecision. “Nyay” is possibly used to convey a sense of justice. But isn’t that the generic aim of the entire judicial system, which is why the scales of justice are often associated with it? The IPC is just one part of the justice system and not its entirety. There are three other branches of law which also deliver “nyay” -- civil law, administrative law, and constitutional law. Given this nuance, a better new name for the IPC would have been Bharatiya “Dandaniya” Nyay Sanhita, loosely translated as the Code of Indian Penal Law.

The offence of “sedition”, classified as one of the offences against the State, is now proposed to be deleted to show the law as becoming more citizen friendly. It is unreal that a modern State should not need laws to deal with the very real possibility of forces working to undermine it, possibly in consort with international actors. The good news is that India now has a range of alternative offences, embedded in special acts, which reflect the many manifestations of sedition, such as secession, armed insurgency, subversive activities, separatism, challenging the unity, sovereignty and integrity of India. These will now be incorporated into the new IPC, reducing the shine around rebranding government as being citizen friendly, but also imparting a welcome touch of pragmatism.

The Indian Evidence Act is being renamed as the Bharatiya Saksha Adhiniyam, which is unambiguously correct. This law has been amended eleven times before Independence and eleven times after, the most recent being in 2018. The IEA codifies how facts relevant to any case are to be determined, which facts need to be proven in court, the manner in which oral evidence and documents are to be proved, which party bears the burden of proof, the nature and extent to which admissible witnesses can be used to prove facts and how witnesses may be examined.

A useful new provision expands the definition of documents to include electronic or digital records, emails, server logs, computers, smartphones, laptops, SMS, websites, locational evidence, mails, messages on devices.

Similarly, in the other two laws, new provisions promote positive change -- digitising the process chain from FIR, case diary, chargesheet, through to judgment; making videography compulsory during search and seizure; enhancing forensic analysis capacity and new duties for the police to support communities – the police to personally inform the family of the person they have arrested and give feedback of action taken on a complainant, within ninety days and then every fifteen days.

However, none of these new provisions, including the name change, appear to necessitate new laws. They could all have been accommodated via limited amendments. There is a reason why laws should not be trifled with. Every change in the law imposes significant costs on all those who have to implement it, the Bar and the Bench and finally on complainants and the accused. Apart from the need to read up on the new laws, every new insertion will be dissected and judicially defined over time within case law. Only once this happens and a common understanding matures will the uncertainty and anxiety about the case’s outcomes abate, along with the financial costs thereof.

The laws themselves have rarely been a problem, it is how they are implemented that must change. Adopting a 90 percent conviction rate as a performance metric, unless accompanied by metrics for unbiased investigation, and third-party oversight over the initiation of charges, could generate unwanted perverse effects, like efficiently prosecuting the innocent and the poor. More pertinently, once the CrPC changes, will the existing parallel procedural legislation -- the Civil Procedure Code -- be next?