Penal Code Reform: Erasing Macaulay’s Mark

Why in News?

• On the last day of the Monsoon Session, the Home Ministerintroduced three Bills in Lok Sabha to overhaul the country’s criminal justice system. 
• It is a paradox of India’s criminal justice system, even today, bears the indelible marks of Lord Thomas Babington Macaulay or colonial legacy in other words. There are reasons as to why these new bills are important.

 

Key Changes Introduced in the New Bills

• Replacement of the British-Era Laws
• The bill has made changes to the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act, with the aim of transforming criminal justice system.
• The colonial-era laws will be replaced by legislation with an Indian ethos:
  • The Bharatiya Nyaya Sanhita, 2023, to replace the IPC;
  • Bharatiya Nagarik Suraksha Sanhita, 2023, for CrPC; and
  • Bharatiya Sakshya Bill, 2023, for the Indian Evidence Act.
• Removal of IPC Section 377
  • Bharatiya Nyaya Sanhita (BNS) 2023does not contain IPC Section 377 (or an equivalent section), which was read down by the Supreme Court in 2018.
  • Section 377: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished.
• Reinventing Sedition law (Section 124A of IPC)
  • The repeal of the sedition law points to a welcome shift in the balance struck between individual liberty and national security.
  • But the proposed Sanhita contains a provision that penalises endangering sovereignty, unity, and integrity of India.
  • Without calling it sedition, it expands its definition, including aiding through financial means and subversive activities, and encouraging feelings of separatist activities.
• Introduction of Reformative Form of Justice: The insertion of community service as an alternate form of punishment could prevent more undertrials languishing in jails.
• Address the Technological Advancement
  • The Bharatiy Sakshya Bill (BSB) 2023 will allow witnesses, accused, experts and victims to appear through electronic means.
  • It also allows electronic evidence to have the same legal value as physical documents and extends the scope of secondary evidence to include various forms of electronic and mechanical copies.
  • New bills also include recognition of murder by a mob on ethnic, caste and communal lines.

 

Reasons Why These Bills Are Important

• Erasing Colonial Legacy
  • Before analysing any Bill, the Statement of Objects and Reasons (SOR) that accompanies the Bill must be read.
  • The SOR of the Bharatiya Nyaya Sanhita reads that the move to reform IPC (enacted in 1860) is not merely a legal imperative, but a philosophical one.
  • Replacing outdated and unjust provisions with laws that reflect the ethos, needs, and aspirations of contemporary India is a stride towards fulfilling the social contract between the state and the citizens.
• Reflect the Changing Reality of the Society
  • When societies progress, they require laws that mirror their current values and needs.
  • Nowhere is this evolution more critical than in the criminal justice system, especially when countless individuals languish in jails.
  • According to the National Crime Records Bureau, a staggering 77 per cent of India’s prisoners in 2021 were undertrials.
  • Prolonged postponement in reforming the criminal justice system is an injustice in itself. 
  • Therefore, the introduction of community service as a form of punishment in the BNS represents an innovative and humane approach to criminal justice.
  • By targeting petty crimes, it serves as an alternative to imprisonment, focusing on rehabilitation and societal integration.
• Address the Legal Ambiguity
  • The Indian criminal justice system’s inconsistencies have led to confusion.
  • For example, Section 309 of the IPC criminalises attempt to suicide, while the Mental Healthcare Act 2017 presumes such an attempt is due to severe stress and needs care instead of punishment.
  • This conflict creates legal ambiguity and room for interpretation. The BNS has addressed this.
• Modernise the Criminal Justice System
  • The introduction of BSB is crucial modernisation of the criminal justice system, reflecting the significant changes in technology and society since 1872.
  • It recognises the vital role of electronic information, allowing for digital records to be admissible and creating provisions for electronic appearances.
  • This extends the scope of secondary evidence to include various forms of electronic and mechanical copies and introduces more precise and uniform rules for admissibility.
  • In an age where information is increasingly digital, these amendments align the law with contemporary practices.
• Clear Definition of Crime and Simpler Procedure
  • There is a backlog of almost 50 million cases stuck in Indian courts (including quasi-judicial forums). Two-thirds are criminal cases, concentrated in lower courts.
  • An efficient resolution of these is a clear definition of “crime” (for instance, 377 in IPC) and procedures for criminal trials.
  • The Bills have redefined “crime” and made procedures simpler.

 

Suggestions to Make the Criminal Justice System More Effective

• While the argument for a modern nation to erase the colonial legacy of treating the citizen as a subject is compelling, the blame for misuse of laws cannot be solely placed at the door of the long departed colonial power.
• Due process and individual liberties are fundamentally inalienable human rights, and legal precedents as well as frozen institutional and structural realities pose dangers to these rights.
• These make the criminal justice system more punitive than just. Hence, along with law-based reform, institutional reforms are needed as well.

 

Conclusion

• India’s legal fabric will no longer dance to the whims of colonial times.
• By adopting the Bharatiya Nyaya Sanhita and related reforms, India is not just changing the numbers, it is reclaiming its identity.

 

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Q1) How did Macaulay’s draft on IPC make the British rule more effective?

Macaulay completed the draft of the IPC in 1837, and it finally became law a year after he died in 1860. The impact of his criminal law codification exercise was felt across the British Empire. Crimes from his IPC, like sodomy, became a crime not only in India but in almost all British territories and continued to remain so after their independence. By all accounts, he was racist and contemptuous of Indians and their customs and the criminal code he wrote made the British rule even more effective.

 

Q2) Why are new bills facing criticism?

Among other criticisms, one criticism about the Bharatiya Nyaya Sanhita (BNS, to replace the Indian Penal Code), the Bharatiya Nagarik Suraksha Sanhita (BNSS, to replace the Code of Criminal Procedure) and the Bharatiya Sakshya Bill (to replace the Indian Evidence Act) is that it is unnecessary to refer to them wholly in their Hindi names. Every law in India has an official translation in the respective official language of every State; so the need for the IPC, CrPC and Evidence Act to be referred to in their Hindi names alone is questionable.

 

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Source: The Indian Express