The Requirement of reforms in criminal law

Name : Anuj Lakhotiya

Year & Course : Ist Year & B L S LLB

College : Government Law College, Mumbai

ABSTRACT:

Criminal Law is one of the most Significant Branches of law and is the most apparent expression of the relation between citizens and the State, it also impacts Human behavior directly. It is a branch of law which that deals with criminal offenses, offender and punishments. No conduct constitutes a crime unless declared in the criminal law of the country. India being a democratic state, has defined and detailed criminal law legislation, primarily Substantive legislation & Procedural legislation. India needs significant reforms to strengthen the criminal justice system, deal with contentious sections and controversial colonial laws. Well conceived and Duly deliberated reforms in these laws will strengthen the system and will lead to a protected society. There have been many attempts to reform the criminal systems which include certain amendments to the legislation, the Formation of High-level committees, and several important reports. Recently the central government has formed a 5-member committee to reform the criminal laws of India.

KEYWORDS:  Criminal laws, Criminology, Criminal Reforms, Amendment, Reform Issues.  

The Importance of criminal law cannot be doubted as these laws assure law and order situation in society; the state takes punitive measures against the offender who violates the code of conduct defined by the state.

There are many legislations in India that deals with the realms of criminal law.

  • Substantive Legislation – It defines the rights and liabilities of the persons.

The Indian Penal Code,1860, is a substantive legislation that defines the acts which are crimes and prescribes punishment for each such offense. It was drafted by the 1st Indian Law Commission constituted in 1834 Lord Macaulay was the president of the Commission, it came into force on 1st January 1862, constituting 511 sections.

  • Procedural Legislation – it provides for the procedure to enforce rights provided by the substantive law.

The Criminal Procedure Code,1973, is a procedural law that describes the procedure for prosecution which includes investigation of a crime, methods of conducting trials, provisions for appeal, etc., it came into force on 1st April 1974.

The Indian Evidence Act, 1872, is a procedural law that describes what material can be used as evidence to prove a fact in the court of law, it provides for procedures and rules to prove whether a person has committed the offense or not, it was enforced in 1872 itself. 

ISSUES:

The Vintage of Indian criminal laws are a peculiar feature of its legal system, that a democratic nation of progressive approach relies on late 19th century laws, drafted by a colonial government to establish control over Indian subjects, often strikes an incongruous note despite the fact that the Indian society witnessed major dramatic shifts in the last 150 years. At the same time, the undeniable fact that the criminal justice architecture has survived signals its relevancy, expertise, and longevity, suggests the cautious lawmakers to uphold the status quo and not run into chaos. However, there is a consensus that there are vexed issues and thus the approach of ‘If ain’t broke don’t fix it’ is defied.

Law is made and applied according to the needs of society in a democratic state and when the law progressively changes the society, it is a sign of development. The Indian society needs criminal law reform which is liberal, precise and answers the present needs of society. Many provisions of the colonial laws are in conflict with the Legal & Fundamental Rights guaranteed by The Constitution of India, 1950. The Need for reasonable laws which cover the evolving field of Cybercrimes and Artificial Intelligence can be felt, there have been demands and protests to struck down some controversial sections too.

There has been 75+ amendments to IPC itself, these envisaged amendments were always focused on specific clauses or provisions, or sections or classes of offenses. Criminal law comes under The Concurrent List, and thus, comes under the jurisdiction of both Union and states. Many states have resorted to amending few provisions of criminal law as per the convenience and suitability of the concerned state, few examples include Rajasthan’s law against mob lynching, Anti conversion laws of many states, J&K’s AFSPA, etc. The union, through legislation or ordinance, comes up with laws or amendments which are applicable to the whole country, unless specified, to deal with the changes in society in regard to criminal law, few prime examples of the same include The Criminal law amendment act,2018, The SC/ST amendment act 2018, etc.

The Constitutional courts in India have played a major role in the process of reforming criminal laws, though they cannot make laws, they can – 

▫ strike down sections or contentious provisions which go against the constitution and basic rights, for e.g., striking down Section 377 of IPC.

▫ Frame guidelines for the certain issues which the criminal system has to follow, for e.g., guidelines against sexual harassment at the workplace, guidelines against mob lynching.

The lucidity required for understanding the vagueness of few colonial laws, fabricating new laws, considering reformation or removal of old offenses, and making real changes to the punishments under the criminal justice system had been missing from the dialogue and deliberation, clearly, this needs the participation of all the decision-making stakeholders that enjoy the mandate of people and constitution.

EXPERIENCE:

The Ministry of Home affairs has flagged the need to reform IPC, a 5-member task force was formed headed by prof. Ranbir Singh with an aim ‘to suggest reform in the criminal laws of the country in a principled, effective and efficient manner ensuring the safety and security of the individual, and the society at large’, a lot is at stake for this committee, which has been criticized for the lack of representation of women and minorities. However, this is not the first time that a government has formed a panel/committee for the same purpose, there have been many such attempts, few of them are:

Just. V.S Malimath committee – this committee was formed by the  NDA government to suggest reforms in the criminal justice system, the report was submitted in 2003 with 158 recommendations, the committee suggested reforms in wide areas of law ranging from offenses against women to economic crimes.
N.R Madhav Menon Committee – this committee submitted its report in 2007, the main purpose of this esteemed committee was to form a draft on ‘National policy on criminal justice’, the committee successfully completed its task, but the government failed.
Just. J.S Verma committee – this committee was formed after the horrendous ‘Nirbhaya rape case’, to review laws related to sexual crimes and offenses against women.
The Law Commission of India had always laid emphasis on reforms in the criminal law system and

has cited hundreds of lacunas, in its reports, e.g., Fourteenth report, 58th report, etc.

The common conclusion one can infer is that IPC though a defined comprehensive compilation law, fails fully to meet the needs of our society. Even the drafters of these codes laid emphasis on relooking at the general principles, language, and rules guiding the criminal law.

THE WAY AHEAD:  

  • The government with all the concerned stakeholders shall strive for an amicable solution that leads to a coherent and justified criminal system. The process must begin with the identification of contentious provisions to reform them with coherent justification. There are many such colonial provisions that defy the democratic norms of India, some of them are:  

▫ Section 309, IPC – Attempt to commit suicide, this archaic law punishes suicide attempt.

Capital punishment – 10 sections of IPC have the death penalty as punishment.

▫ Section 124, IPC – Sedition law, this colonial law has faced many protests and criticism, governments have used this law to silence dissent.  

  • A Vital place to victims – One of the major reforms would be to protect victims and witnesses, to bring credibility and values into the criminal justice system, the Centre hasn’t implemented any witness protection scheme yet, though the State of Odisha has implemented one. The steps needed in this aspect are:

▫ Need for use of impact statements with reasonable care and due process

▫ The Urgency to bring the dawn of victim advocacy while maintaining anonymity  

▫ Increasing victim participation in criminal trials, by ensuring protection  

▫ Emphasizing the access to restitution and compensation for victims and witnesses.

  • New offenses – The crimes are becoming more diverse in nature, a 150-year-old law cannot recognize the wide spectrum of crime happening in the 21st century, to deal with new crimes, the criminal laws shall be incorporated with new provisions which are justifiable and liberal at the same time. Few examples are:

▫ Cyber-crimes on the digital medium shall be dealt with.

▫ The Artificial Intelligence sector is evolving, possible regulations related to this can be deliberated with due consideration from experts.

▫ Novel punishments can be brought under the mandate to further the goal of restorative and reformative justice through community service orders, restitution orders, etc.  

▫ The liability factor shall be reconsidered for these new types of offenses.

  • Criminal Justice system – The daunting task would be to lay emphasis on strengthening India’s criminal justice system, which continues to be in bad shape because of the poor judicial reforms and lack of resources, non-implementation of several committee’s recommendations and poor execution due to lack of financial further adds to the problem, the need of the hour is to:

▫ Dealing with the massive pendency of criminal cases in courts through the introduction of fast-track courts with defined jurisdiction, ensuring proper trials, financial support to the prosecution can help.

▫ Judicial reforms to decrease workload, checking corruption, and accountability shall be pushed for the sake of criminal justice.

▫ Unprincipled criminalization shall be done away with it, it would be beneficial to both prosecution and the offender, this needs more attention given the fact that our justice system has miserably failed in this aspect, the recent example being of a man, who spent 20 years in jail for a crime he didn’t even commit.

▫ Furthering the goal of past committees, a ‘Criminal justice reform board’, with a wide mandate, shall be formed.

CONCLUSION:

Indian criminal law, which dates back to the colonial era, needs reforms to deal with the societal change in such an efficient manner that democratic and constitutional principles are upheld. There have been specific amendments in the past, through legislations, court orders, regulations, committee reports, etc., but no

attempt to overhaul the criminal laws has been made, the union government’s decision to reform the criminal law is a welcoming step per se. The need is to bring coherent solutions to every issue present at the table; reforming of criminal law, which is in place for the last 150 years, needs due deliberation and discussion with all the concerned stakeholders to reach an amicable solution that ensures the well-being of every branch of justice, simultaneous reforms are to be considered to bring a change in the criminal justice system, this process shall be done considering all the facets of societal needs while avoiding any type of hastening for meeting the goal of Reformative justice leading to a just society guided by peace, law, and order. 

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