Justice over penalty

NEW DELHI: India’s criminal justice is bracing for a makeover as the Centre moved three bills in the Lok Sabha this month, replacing the colonial-era codes.

The bills are aimed at speeding up trials by laying down specific timelines, boosting conviction rates by improving the quality of evidence, and also providing relief and protection to victims. The new codes will define terms such as terrorism, and mob lynching as well as new offences such as separatism, and armed rebellion against the country, apart from fixing accountability of police personnel for arrests.

The highlights of the bills include the introduction of summary trials for petty crimes, and community service, as well as the provision to record statements of those affected by sexual violence, at their homes by a woman magistrate.

The Indian Penal Code (IPC), 1860, will be replaced by Bharatiya Nyay Sanhita (BNS); the Criminal Procedure Act, 1898, will make way for the Bharatiya Nagarik Suraksha Sanhita

(BNSS); and Indian Evidence Act, 1872, will be replaced by Bharatiya Sakshya. The announcement has elicited mixed reactions. One pain point was the fact that there were no drafts made available to the people prior to the Union Home Minister Amit Shah introducing the bills in the Lok Sabha.

Another grievance is that the bills should have been named in English rather than Hindi, which even Chief Minister MK Stalin deplored as linguistic imperialism. This makes sense as every law in the country has a translation in the respective official language of each State. However, it is essential to view the bills objectively and understand if they truly are aimed at delivering citizen-centric justice. On the plus side, the procedure code allows for the conduct of trials of proclaimed offenders even in absentia. A provision to make videography of seizures was also seen as a step in the right direction.

The BNS bill also attempts to make offences gender-neutral, apart from dealing with organised crimes and acts like secession and armed rebellion. However, while introducing community service as a form of punishment, the bill does not bother explaining what kind of work comprises community service. This lack of clarity could lead to arbitrary punishment being meted out. Offences such as rape, sexual harassment, and stalking continue to be treated as gender-specific crimes. Strangely, such neutralisation only applies to the offender as only women are being considered as victims. This is a far cry from the POCSO Act, 2012, where the offender and victim were gender-agnostic. Tellingly, the new procedure code stops short of criminalising marital rape as well.

One shortcoming is regarding the omission of the offence of sedition. In place of this, a new offence has been introduced — exciting secession and encouraging separatist feelings. But the law steers clear of defining the range of these activities. Sticking to Lord Macaulay’s IPC dictum of punishment being a deterrent to crime, the new bill relies upon the death penalty for offences such as mob lynching. The definition of offences such as defamation have also been left vague.

The legislation will have far-reaching repercussions for the entirety of our population, so it is essential that stakeholders are consulted before the bills become the rule of law. India needs a principled approach towards criminalisation that favours the delivery of justice over the impetus for punishment.