The Ministry of Home Affairs (MHA) has constituted a national level Committee for suggesting reforms in the criminal law. The Committee has been seeking online opinions and suggestions from the Bar Associations and academicians.
The history of India’s codification of laws dates back to the Charter Act, 1833 by virtue of which the First Law Commission was established in 1834 headed by Thomas Macaulay.
It was followed by the Second Law Commission of 1853, to examine the recommendations made by the First Law Commission.
But, due to the Sepoy Uprising of 1857, it got stalled.
It was only since 1860 that the real codification started. The enactment of the Criminal Law was thus deeply influenced by the intervening Uprising of 1857.
The colonial laws, especially the IPC and Police Act, 1861 were selectively designed with the motive of ‘ruling the natives’, rather than serving them. Many of the colonial provisions in the criminal law have still been in existence in the statute books which are open to blatant abuse by the powers-that-be.
After the independence in 1947, and the adoption of the Constitution w.e.f. 26.1.1950, all the colonial laws were saved and retained by Article 372 of the Constitution, subject to the provisions and mandate of the Constitution.
However, in the year 1955, the first Law Commission of independent India (and the 5th in the sequence) was constituted which consisted of 11 eminent jurists, lawyers and judges hailing from all parts of the country.
The main function of a Law Commission is to give recommendations on the Terms of Reference assigned to it.
Till date, 21 Law Commissions have submitted their reports on a wide range of subjects.
Their reports (total 277), consists of recommendations for requisite reforms and amendments in the existing laws.
Many a times, even the Supreme Court has referred to these Reports in its Orders, but most of the Reports and its recommendations have fallen on deaf ears, as the Legislature has conveniently ignored their recommendations.
As a result, there has been a huge backlog in implementation of these recommendations to reform the system.
Now, a 5-member Committee has been constituted by the MHA which consists of a Vice-Chancellor of Delhi National Law University, two University Registrars, a Supreme Court Counsel and a retired District Judge of Delhi.
However, the intended areas of reforms have not been articulated as yet. Suggestions have been invited in the form of a selective questionnaire which does not adequately focus on the major irritants in the Criminal Law.
A time limit of only 3 months has been stipulated.
The major reforms that need to be introduced are in the IPC, Cr. PC.. and the functioning of the trial Courts. The Constitutional courts are hardly affected by these laws.
It is, therefore, necessary to seek exhaustive inputs from trial court advocates, prosecutors, magistrates and judges. The strength of the Committee may also be increased to include the lawyers and judges from different states.
The present members of the Committee are all from Delhi. The Committee also lacks diversity, and hence not adequately representative of all the stake holders.
Proposed Reforms to the Indian Criminal Justice System: Simplifying Procedures and Protecting Citizens' Rights
The Indian criminal justice system has been criticized for being complex, slow, and often failing to protect the rights of citizens. In recent years, there have been several proposals for reforms to simplify the procedures and enhance the effectiveness of the system. The aim is to ensure that justice is not delayed or denied and that the rights of the accused and the victims are protected. These proposed reforms could potentially transform the way the criminal justice system operates in India and improve access to justice for millions of citizens.
Part 1
CrPC
This Procedural Code of 1973 is largely a replica of the colonial Code of Criminal Procedure 1898 and needs to incorporate many guidelines laid down by the Supreme Court in the last 50 years, and the changes recommended by Law Commissions in its Reports.
The power to arrest by the police is one of those provisions in law which has been extensively misused.
The exhaustive guidelines by the Supreme Court in the case of Arnesh Kumar v/s State of Bihar (2014) be incorporated in S.41 and S.437 CrPC for mandatory compliance in the matters of arrest and detention.
S.167 CrPC The maximum period of police custody be reduced to 7 days. The Police Remand must not extend beyond 3 days at a stretch, which may be extended from time to time subject to the maximum period of 7 days.
We all know that prolonged police custody is often a tool of harassment, corruption and torture for extorting confessions. The timings of interrogation also need to be statutorily incorporated. Even though the guidelines given by the Supreme Court in the case of D.K. Basu v/s State of West Bengal (AIR 1994 SC 1349) have largely been incorporated in S.41A to D of the Code, the additional guidelines from the case of Arnesh Kumar also need to be incorporated. Similarly, a statutory provision for allowing the toiletries-- like soap, toothpaste/brush, basic clothings and towel requires to be made for the accused/UT at his/her cost in the lock-up or the jail.
Absence of this statutory provision is also one of the causes for corruption. (The Jail Manual is ambiguous and not easily enforceable.) In England, the maximum duration of police custody is 36 hours; and for serious crimes like murder, it is 96 hours. It is only in the cases involving terrorism that police custody may extend up to 14 days.
The copy of the statement of witnesses recorded u/s 161 be furnished to them immediately with an option to seek corrections therein.
S.437, 439 Bail procedures need to be simplified. The element of distrust, inherent in our Criminal Law since the colonial era, needs to be corrected.
The existing laws still treat the people as “subjects” (praja) under an imperial rule, instead of citizens of a Republic.
Equally lamenting is the fact that our system is still dominated by a status-quoist mindset!
The Criminal Manual (Chapter I, Paragraph 12 to 14) also needs to be overhauled to simplify the precedural bottlenecks and to avoid the orders of excessive bail.
(In America, there is a Constitutional provision known as the Eighth Amendment of 1791, against imposing excessive bail in any case).
Similarly, the powers conferred upon the High Court or Sessions Court u/s. 440 may be specifically conferred on Magistrates, too, for exercising it while passing the order of bail itself. The provisions of S.445 allowing cash surety could also be merged with S.440 with an alternate option , so to avoid further applications, arguments and consequent Orders.
In the matters of ordering Solvency, the alternate option of cash surety be allowed for the intervening period.
The guidelines given by Bombay High Court in the case of Ganeshanan Lakshmanan (2009) be statutorily incorporated.
S.438 The elaborate guidelines laid down by the SC in Gurbaksh Singh v/s State of Punjab (AIR 1980 SC 1632) and in the case of Siddharam Mhetre (AIR 2011 SC 312) be statutorily incorporated as a Proviso to the Section.
The power of police station to release an accused on bail in bailable offences must not be taken away, as it has been reported in the media.
By doing so, unnecessary detentions and misuse shall follow. It would also increase the burden on the JMFC and the police escort.
S.390 This section needs to be reconstructed by substituting the word “warrant” with “notice”. It is paradoxical that an accused who has been acquitted by the trial court should face the trauma of arrest warrant and detention, pending the appeal in the High Court.
Of course, there are several judgments to obviate its severity, but the phraseology used in the Section often results in unnecessary harassments of the acquitted accused.
Warrant The tendency to issue warrant against an accused absent only on one day needs to be curbed.
The guidelines laid down by the SC in the case of Vikas v/s State of Raj (2013) be incorporated either in S.72 or S.205.
The Supreme Court has put an embargo against the practice of issuing NBW at the first instance without using other tools of summons and BW to secure attendance of the accused.
But the ratio is hardly ever followed.
S.24 This provision needs to be restored to the pre-1981 status.
The office of public prosecutor must remain an independent one and cannot be allowed to become a part of the investigating agency.
The diluted provisions of S.24 have made the public prosecutors prone to political interference.
Compensatory Justice The Law Commission in its 277th Report (2018) has recommended for adequate compensation to a person wrongfully arrested and prosecuted.
The implementation of this Report would be in consonance with the International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory (Article 14 Para 6 of the Covenant). Unfortunately, our legal system still does not recognise the right to compensation for wrongful arrest and detention. But, in a plethora of judgments, the Supreme Court has invoked this jurisdiction (recently, in the case of ISRO scientist Nambi Narayanan).
In fact, the Law Commission had separately submitted its Report on this subject under the title Wrongful Prosecution (Miscarriage of Justice): Legal Remedies. The Law Commission even presented a Draft Amendment Bill for the CrPC.
However, the legislature has still not acted upon it.
S.250 CrPC which deals with compensation to an accused for wrongful arrest is grossly inadequate as it relates only to private complaints before a JMFC, and not to police cases.
Even the Sessions Court has no power to grant compensation to the victims of wrongful detention and prosecution.
In the case of Prakash Singh (2006) the Supreme Court has also recommended to make the police accountable for its actions.
Witness Protection Scheme
Way back in the year 2003, the Malimath Committee Report (headed by Justice Malimath) had recommended for this enactment in the procedural laws. The Supreme Court in the year 2018, approved of this Scheme which is still pending for implementation.
However, this Scheme needs to be implemented with the corresponding reforms in the functioning of the police, which is possible only after the police force is de-linked from the political executive.
Police Reforms
In spite of repeated demands to make the police force an independent and statutory body, no government has shown any inclination to act decisively on it.
Way back in the year 2006, in the case of Prakash Singh v/s Union of India, the Supreme Court had suggested measures, inter-alia, to insulate the police machinery from the political executive. These Directions were issued on the recommendations of an earlier Report of National Police Commission.
A few years later, a Committee was also set up under the aegis of Soli Sorabjee which submitted its Report along with a draft of Model Police Act.
In the year 2019, the SC issued further clarificatory directions which would hold the field till the police reforms were duly legislated. But even these directions have remained in cold storage.
Now a fresh petition for the speedy implementation of these mandatory guidelines has also been filed in the Supreme Court, which is pending for hearing.
CCTV Camera In a landmark judgment of D.K. Basu (2015) (AIR 2015 SC 2887), the Supreme Court has ordered the installation of CCTV cameras in all police stations and jails within the stipulated time frame.
But even this order has remained only on paper. Even in the places where such cameras have been installed, they always go “blank” in the crucial hours of violence or torture!
That defeats the very purpose of the order.
A corresponding amendment/addition can be made in S.114 of Evidence Act to draw necessary inference in the matters of custodial violence, if the cameras allegedly suffer from “malfunction” during the impugned custodial violence.
Media Trial The malaise of sensation mongering in TV channels and the press has an adverse impact on the fairness of investigation and trial.
The tendency of the police to leak ‘piecemeal information’ on day-to-day basis provides a cheap fodder to the TRP-hungry channels. It also creates serious prejudice against the accused who is often subjected to character assassination.
Many a times, these sensational leaks and materials do not even find place in the final Charge Sheet.
But the damage caused to the reputation of the accused in irreversibly done.
The Law Commission in its 200th Report (2006) has recommended a law to ‘debar the media from reporting anything prejudicial to the rights of the accused or tarnishing his/her reputation’.
This Report needs to be debated for implementation.
In the year 2017, a Bench of the SC comprising of Kehar, CJI and Ramana, J., has frowned upon this ‘tendency and the smear campaign which needs to be curbed’ as it militates against the basic premise of our criminal justice system – that a person is innocent until proven guilty.
It can be checked by necessary embargo in Chapters V and XII of the Code.
Sentencing System The Malimath Committee Report has emphasized on reformative, compensatory and restorative mode of punishment in appropriate cases.
It could be by way of compensation, community service or otherwise. The Report also relied upon the mandate of ICCPR as India is a ratifying State to this Covenant.
Necessary amendments in Ss.235 and 248 of the Code may be introduced.
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While concluding Part I herein, I may recall a bit of history when the new Code of 1973 was introduced.
In the year 1968, a Law Commission was constituted for an overhaul of the previous Code of Criminal Procedure 1898.
In the meanwhile, the Commission was reconstituted for larger representation. The reconstituted commission made a detailed study of the previous Code and submitted its Report in 1969. Thereafter a Draft Bill was introduced in the Rajya Sabha in December 1970.
The Bill was then, referred to the Joint Select Committee (JSC) of both the Houses of the Parliament. It was only after incorporating the recommendations of the JSC that the Bill was taken up for debate and final consideration by the Parliament.
Hence, this caveat against the hasty attempt for the new enactment, especially during the present pandemic and lockdown.
What is reasonably expected is that the National level Committee as constituted by the MHA be expanded to ensure larger representation of the southern states and encourage wider participation.
In some quarters, reservations have also been raised about the lack of diversity in the 5-member Committee.
There are also no women in the Panel.
Barring the Supreme Court counsel, remaining 4 members are neither advocates nor do they have any practical experience of the court proceedings.
There is also no representation of trial court lawyers, prosecutors and judges in it.
Part II
(IPC)
S. 500 This archaic provision of criminal defamation needs to be scrapped from the Penal Law. The Law of Tort does provide a civil remedy for an aggrieved person.
In most of the democracies, defamation has been decriminalized.
A petition was filed by Subramaniam Swamy challenging this penal provision, but unfortunately the Supreme Court rejected it. (A 2016 SCC 2728).
However, the time has come to repeal S.500 IPC as it has become a routine tool of harassment of individuals and newspapers.
By repealing this provision, an aggrieved person is not left without remedy as the alternate recourse to an action under the Tort is already available.
S.294
The Obscenity Law is another weapon for harassment and blackmail, which needs to be decriminalised.
An aggrieved party may, however, resort to civil remedies and seek prohibitory orders.
The Supreme Court in various judgments has held that ‘obscenity is a relative term which differs from person to person and community to community.’
What constitutes obscenity has not been defined in S.6 of IPC.
As a result, it remains open to subjective interpretations which keep changing with the passage of time.
Except sensation mongering, this offence has no relevance in the present society.
However, it has been invariably misused against films and artists. We all remember the case of the film star, Khushboo against whom as many as 23 cases had been filed under various frivolous provisions of law including defamation and obscenity.
Of course, subsequently the Supreme Court quashed all the proceedings in its landmark judgments reported in AIR 2010 SC 3196.
The SC further observed that the notions of social morality are inherently subjective and that the criminal law could not be used as a means to unduly interfere with the domain of personal autonomy. After all, something more valuable is at stake, i.e. freedom of speech. It was further held that morality and criminality aren’t co-extensive.
In recent years, this Section has also led to the menace of moral policing. Since this Section continues to be a cognisable offence, it has become an additional tool of harassment by the police.
The truth is that S.294 which is a relic of the Victorian morality, has become awfully outmoded in the present era with no record of conviction.
In the UK, no complaint alleging obscenity can be filed or registered except with the prior consent of the Attorney General.
In the last 50 years, no such consent has been granted for launching a prosecution against an alleged act of obscenity which has rendered the Obscenity law of 1857 as quod lex obsoletis.
Even if Section 294 is not repealed, it needs to be reconstructed with checks and balances and, with a mandatory Proviso of a prior permission of the AG who shall examine the allegation in the light of the judicial precedents and give a reasoned opinion.
S.153-A and S.295-A
Another tool of abuse of process of law is the “hurt sentiments” by an alleged act outraging the religious feelings.
Once again, this is also a “relative” term which differs from person to person.
But, a hyper-sensitive mind may look upon even an innocuous humour or artistic expression as an outrage.
In recent years, this law has been used against films (although passed by the Censor Board), artists and political rivals.
Both the sections are cognizable and non-bailable with the dubious distinction of almost no conviction.
But, the abuse continues.
Ideally speaking, these provisions need to be repealed and substituted with a comprehensive law against hate crimes as it has been done in many countries.
And, even if these sections are not repealed, the prior consent of the AG with a reasoned order must be made sine qua non for the prosecution.
S. 425 to 427
The IPC lacks the teeth when it comes to the offence of damaging or destroying properties. In view of the mass protest and consequent destruction of properties, a seperate law was enacted as Destruction of Public Properties (Prevention) Act, 1984.
But even this law does not relate to the destruction of the private properties.
The Supreme Court in a landmark judgment (AIR 2009 SC 2266) had laid down 8 guidelines for recovery of the losses caused by the protestors either during a protest or a bandh.
Hence, the said guidelines need to be statutorily incorporated
in IPC or in the Act of 1984 (supra).
S.124-A This draconian provision of law has been often termed as a “legacy of the Raj” which has been routinely used to stifle the dissent.
In two landmark judgments of Kedarnath Singh (1962) and Balwant Singh (1986), the Supreme Court has laid down the specific ratio of the applicability of S.124 A. However, it has never been followed by the Executive.
In fact, this provision is a classic example of brute imperialism which has continued in the statute book of the country even after becoming a Republic. The interesting irony is that this law has long been abolished in Britain, US, Canada and other democracies.
The Law Commission headed by a former Supreme Court judge, B.S. Chauhan, J., in its Report (2018), also recommended that “it is time to rethink and even repeal the provisions of sedition from the IPC”.
A Supreme Court judge, Deepak Gupta, J., while speaking in a Seminar in Ahmedabad (2019) also called for a “relook at this law, and if not repealed, it be at least toned down so that people are not arrested or deprived of their liberty at the drop of a hat.” (sic)
S.124A is also drafted mischievously and loosely, in a dangerously vague manner.
The phrase of “exciting disaffection towards the government” is precariously relative and subjective in its interpretation.
It is also due to the Explanation I appended to the Section that it has been very easy for any ruling party to invoke the charge of sedition against political opponents and critics.
Even if not repealed, S.124-A be at least appended with a Proviso of prior consent of the AG before its invocation.
Hate Crimes India has no anti-hate laws.
The 21st Law Commission in its 267th Report submitted to the Ministry in March 2017 has emphasised the need for a “water-tight compartment to deal with various acts related to the hate speech.”
The Commission in its 53-page Report has lamented the lack of efficacy in the existing provisions of IPC, with almost no conviction rate.
The UK has a law Criminal Justice and Public Order Act, 1994 which criminalises ‘expression of hatred towards someone on account of race, religion, ethnicity, national origin, gender or sexual orientation’.
The US also has Hate Crimes (Prevention) Act 2009 which was enacted in the wake of the brutal assault on Mathew Shepard and James Byrd. Way back in 2014, a petition was filed in the SC (Jafar Imam Naqvi v/s Election Commission of India) wherein the Apex Court held that hate crime could not be the subject matter of a PIL. It needs an appropriate legislation in the Parliament. The ball lies in the court of the Legislature.
Police Act, 1861 This is the Parent Legislation of all the State Police Acts.
As stated above, this law was passed in the aftermath of the ‘Mutiny’ of 1857 with the specific motive of subjugating the ‘natives’ into a servile submission of the Raj.
Even after becoming a Republic, this colonial legislation has remained in our statute books.
This Act, applicable in UP, Delhi and other northern states must be scrapped, and be substituted with the Model Police Act which was submitted along with the Soli Sorabjee Committee Report.
Similarly, all the State Police Acts be also reconstituted or substituted with the Model Police Act.
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It is hoped that the aforesaid suggestions, which are also recommended by the Judiciary and the Law Commissions, are implemented for the reforms that are long overdue.
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