New crimes and punishment

New crime laws strengthen police powers but offer little protection to the innocent

Alok Tiwari

As the month of July began, the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act became history. They were replaced by new Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam respectively in the first complete overhaul of basic criminal laws of the country. The government has projected the development as a long-awaited progressive step that did away with colonial approach to criminal justice. It points to new definition of crimes to suit the modern era, particularly crimes against women and children and mob lynching. It also claims that while the old laws were designed to help the police, the new laws seek to protect the victim of the crime.

There are provisions for more use of scientific methods of detection. Union Home Minister Amit Shah even claimed it would speed up justice by ensuring everything from FIR to final appeal in Supreme Court is done within three years. The senior police officials too have welcomed the new laws as ones that would help curbing crimes. Maharashtra DGP Rashmi Shukla pointed to more stringent and strict provisions of certain offences like sedition.

On the other hand, civil rights activists and prominent lawyers have called the new laws a stop towards strengthening of police raj. They have underlined the sweeping powers given to police to arrest and keep custody of accused persons. They have also said that many provisions of the new laws are in direct opposition to different rulings of the supreme court. These are mostly where the court had restricted state action and sought to protect personal liberty and freedoms. These changes will thus be open to fresh challenges before the judiciary that will have to examine each in the light of constitutional provisions.

Former Union minister and Congress leader P Chidambaram asserted that new laws were a copy paste jobs from the old ones. According to him the changes could have been made through a few amendments rather than wholesale replacement of three basic laws. This would have protected the body of jurisprudence built over the decades around old laws with everyone being clear about what the citizens and law enforcement agencies can or cannot do.

This is not the platform to parse the individual provisions of voluminous laws, nor do I have the expertise to do it. That is the job of specialists in the field. That said, I am wary of any new law or change in an old law that is avowedly more stringent and stricter than the existing one. This is because it usually means more power to the police and less justice for common people. Increasingly, the authorities are seeking to push the burden of proof on the accused instead of on prosecution. Usually, such changes come in the form of unthinking reactions to big developments. UP, for instance, brought a new law after the NEET scam providing for life imprisonment and Rs 1 crore fine for those found guilty of leaking out paper.

Changes were made in laws following the infamous Nirbhaya case. However, it is worth asking whether those changes resulted in increase in number of convictions in offences against women or any significant reduction in such crimes. It is safe to conclude that the new laws did not bring any change through their punitive as well as deterrent value.

We need to apply the same yardstick to judge the wholesale new changes in criminal laws. While it is impossible to eliminate crime in any society, the problem we are facing has little to do with provisions of the law. There is a well known adage about laws being like cobwebs which catch the smaller insects but allow bigger ones to break through. Nowhere is it truer than in India. In the last decade there has been a new twist in that sometimes even bigger insects may also be caught but are allowed to fly away the moment they join the ruling party. Also, sometimes the provisions are used specifically to harass those who are politically troublesome to the government. Acts like these make a mockery of rule of law.

Criminal laws need to balance to opposing requirements. One, they should give investigating agencies adequate powers to get to the bottom of the offence. Second, they should ensure that these powers are not used to trouble the innocent citizens or to harass political opponents. We do fantastically well with the first requirement. It is the second one where we are weak and getting weaker. The new laws will also be evaluated on these two criteria. Sadly, the new laws provide many new powers to the police but contain no provision that enhances protection of liberties.

Finally, the true test of any criminal justice system is whether it can deliver quality justice in reasonable time. Shah has spoke of concluding entire process in three years, which is great, but it is far from clear how this will be accomplished. The courts are having a huge burden of pending cases. Add to it they are extraordinarily indulgent of any party seeking to prolong the procedure while ignoring the party seeking quick resolution. There are existing laws that enjoin the courts to conclude certain matters within defined period (for example, consumer cases) but they are routinely ignored citing large number of cases or absence of judges.

To address these, there should be simultaneous effort to reform the judiciary through rules that strictly limit endless adjournments. The question of adequate number of courts as well as vacancies in existing courts also needs to be addressed. This applies as much to civil side as to criminal side. Criminal law reforms without adequate judicial reform will have only limited utility. In fact, with more stringent provisions for many offences, it is likely that many more innocent will be caught in the new cobwebs and will have little hope of proving themselves innocent.

This column was published in Lokmat Times on July 3, 2024