The Indian Penal Code, 1860, the Indian Evidence Act,1872, and the Code of Criminal Procedure, 1973, constitute the trinity of criminal law. The author of the IPC was Thomas Babington Macaulay who chaired the first Law Commission. Sir James Fitzjames Stephen was the author of the Evidence Act. The first CrPC of 1898 was repealed when the 1973 Act was passed.
The three laws are applied everyday in hundreds of courts throughout the country.
Thousands of judges and over 150,000 lawyers (the bulk of whom practise on the criminal side) thumb through the three Acts practically every day. Every judge or lawyer knows that Section 302 of the IPC is ‘punishment for murder’. They know that under Section 25 of the Evidence Act a confession made to a police officer cannot be proved against an accused. They also know that the provisions for anticipatory bail and bail are contained in Sections 437, 438 and 439 of the CrPC. There are several dozen provisions of the three Acts that judges and lawyers know ‘by heart’.
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Reform Opportunity Missed
Reform of laws is a good idea; reform of a law does not mean re-arranging or re-numbering the existing provisions. There must be an overarching philosophy of what should be the criminal law in the present time and circumstances. The law must be in tune with changing values, morals, mores and aspirations. Salutary developments in modern criminology, criminal jurisprudence and penology must be suitably reflected in the new law.
Provisions Re-arranged
But, what do we find in the three Bills? Many legal scholars have thoroughly examined the three Bills. We found that 90-95 per cent of the provisions of the IPC were cut and pasted in the new draft. As many as 18 chapters out of 26 chapters of IPC (three chapters had only one section each) have been copied in the new Bill. The Standing Committee’s report has admitted that, in the Bill, of the 511 sections of IPC, 24 sections were deleted and 22 sections were added — retaining the remaining sections but renumbered and rearranged. The few changes could have been easily done through amendments to the IPC.
It is the same story regarding the Evidence Act and the CrPC. Every one of the 170 sections of Evidence Act has been cut and pasted. As much as 95 per cent of CrPC has been cut and pasted. The entire effort was a totally wasteful exercise; further, if the Bills are passed, there will be many undesirable consequences. Not the least is that hundreds of thousands of judges, lawyers, police officers, law teachers and students of law and — even the general public — will be put to enormous inconvenience. They will have to “re-learn” the laws.
On the contents of the Bills, while there are a few welcome features — which will be highlighted by the government in Parliament — I wish to point out the questionable features of the Bills. Here are the most important:
Retrograde Provisions
Death penalty has been retained despite a universal clamour for its abolition. In the last 6 years, the Supreme Court has affirmed the death penalty in only 7 cases. Imprisonment for the remainder of one’s natural life without parole is, in fact, a more rigorous punishment while leaving a window of opportunity for the convict to reform.
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Adultery is back as a crime. Adultery is a matter between husband and wife. If the compact between them is broken, the aggrieved spouse may sue for divorce or civil damages. The State has no business to enter their lives. Worse, Section 497 IPC that was struck down by the Supreme Court has been brought back in a gender-neutral form.
Power of the Executive to commute a sentence of death or life imprisonment without recording reasons is violative of Article 14 of the Constitution. Solitary confinement is a cruel and unusual punishment. The legislative bar on the media reporting court proceedings in certain cases is unconstitutional. Terrorists acts are adequately dealt with in the Unlawful Activities (Prevention) Act and there is no need to bring them under the new Penal Code.
The abolition of the rank of Assistant Sessions Judge is wrong because it will place a heavy burden on the Sessions Judge and the first appeal will lie to the High Court and add to the burden of the High Courts. Handcuffing should be permitted only if the arrested person is known to be violent or likely to escape custody. The Magistrate before whom an arrested person is brought for remand must be required to be satisfied about the necessity and legality of the arrest. Clause 187(2) of the new Criminal Procedure Code reflects the wrong assumption among police officers and judges that an arrested person must be sent to police custody or judicial custody. I may recall Justice Krishna Iyer’s admonition that magistrates ignore the third alternative of “no custody at all”. Clause 254 that allows deposition of the investigating officer through audio-visual mode violates the principle of fair trial in an open-to-the-pubic-Court. The new Bill fails to make it explicit that ‘Bail is the rule, jail is the exception’; consequently, Clause 482 is retrograde.
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The government intended to steal the thunder of Macaulay and James Stephen but by copying, cutting and pasting most provisions of the existing laws it ended by paying tribute to the two colonial authors!
The Indian Penal Code, 1860, the Indian Evidence Act,1872, and the Code of Criminal Procedure, 1973, constitute the trinity of criminal law. The author of the IPC was Thomas Babington Macaulay who chaired the first Law Commission. Sir James Fitzjames Stephen was the author of the Evidence Act. The first CrPC of 1898 was repealed when the 1973 Act was passed.
The three laws are applied everyday in hundreds of courts throughout the country.
Thousands of judges and over 150,000 lawyers (the bulk of whom practise on the criminal side) thumb through the three Acts practically every day. Every judge or lawyer knows that Section 302 of the IPC is ‘punishment for murder’. They know that under Section 25 of the Evidence Act a confession made to a police officer cannot be proved against an accused. They also know that the provisions for anticipatory bail and bail are contained in Sections 437, 438 and 439 of the CrPC. There are several dozen provisions of the three Acts that judges and lawyers know ‘by heart’.
Reform Opportunity Missed
Reform of laws is a good idea; reform of a law does not mean re-arranging or re-numbering the existing provisions. There must be an overarching philosophy of what should be the criminal law in the present time and circumstances. The law must be in tune with changing values, morals, mores and aspirations. Salutary developments in modern criminology, criminal jurisprudence and penology must be suitably reflected in the new law.
Provisions Re-arranged
But, what do we find in the three Bills? Many legal scholars have thoroughly examined the three Bills. We found that 90-95 per cent of the provisions of the IPC were cut and pasted in the new draft. As many as 18 chapters out of 26 chapters of IPC (three chapters had only one section each) have been copied in the new Bill. The Standing Committee’s report has admitted that, in the Bill, of the 511 sections of IPC, 24 sections were deleted and 22 sections were added — retaining the remaining sections but renumbered and rearranged. The few changes could have been easily done through amendments to the IPC.
It is the same story regarding the Evidence Act and the CrPC. Every one of the 170 sections of Evidence Act has been cut and pasted. As much as 95 per cent of CrPC has been cut and pasted. The entire effort was a totally wasteful exercise; further, if the Bills are passed, there will be many undesirable consequences. Not the least is that hundreds of thousands of judges, lawyers, police officers, law teachers and students of law and — even the general public — will be put to enormous inconvenience. They will have to “re-learn” the laws.
On the contents of the Bills, while there are a few welcome features — which will be highlighted by the government in Parliament — I wish to point out the questionable features of the Bills. Here are the most important:
Retrograde Provisions
Death penalty has been retained despite a universal clamour for its abolition. In the last 6 years, the Supreme Court has affirmed the death penalty in only 7 cases. Imprisonment for the remainder of one’s natural life without parole is, in fact, a more rigorous punishment while leaving a window of opportunity for the convict to reform.
Adultery is back as a crime. Adultery is a matter between husband and wife. If the compact between them is broken, the aggrieved spouse may sue for divorce or civil damages. The State has no business to enter their lives. Worse, Section 497 IPC that was struck down by the Supreme Court has been brought back in a gender-neutral form.
Power of the Executive to commute a sentence of death or life imprisonment without recording reasons is violative of Article 14 of the Constitution. Solitary confinement is a cruel and unusual punishment. The legislative bar on the media reporting court proceedings in certain cases is unconstitutional. Terrorists acts are adequately dealt with in the Unlawful Activities (Prevention) Act and there is no need to bring them under the new Penal Code.
The abolition of the rank of Assistant Sessions Judge is wrong because it will place a heavy burden on the Sessions Judge and the first appeal will lie to the High Court and add to the burden of the High Courts. Handcuffing should be permitted only if the arrested person is known to be violent or likely to escape custody. The Magistrate before whom an arrested person is brought for remand must be required to be satisfied about the necessity and legality of the arrest. Clause 187(2) of the new Criminal Procedure Code reflects the wrong assumption among police officers and judges that an arrested person must be sent to police custody or judicial custody. I may recall Justice Krishna Iyer’s admonition that magistrates ignore the third alternative of “no custody at all”. Clause 254 that allows deposition of the investigating officer through audio-visual mode violates the principle of fair trial in an open-to-the-pubic-Court. The new Bill fails to make it explicit that ‘Bail is the rule, jail is the exception’; consequently, Clause 482 is retrograde.
The government intended to steal the thunder of Macaulay and James Stephen but by copying, cutting and pasting most provisions of the existing laws it ended by paying tribute to the two colonial authors!
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