The proposed Bills include provisions for forensic experts to visit the scene of serious offences. In pic, the crime scene of a blast at a plywood company at Surampalli village in Krishna district in 2020.
Credit: PTI Photo
In writing this piece, I am reminded of a judge who was prone to ordering far-reaching directions in innocuous cases that would often upset the apple cart. The light-hearted comment at the Bar was that he was inspired by a cola commercial tagline which said ‘Aaj kuch toofani karte hain’ (Today, let’s do something stormy). We have come to expect this of our government with demonetisation, the abrogation of Article 370 and other instances. The Bharatiya Nyaya Sanhita, 2023 (‘New Penal Bill’), Bharatiya Nagarik Suraksha Sanhita, 2023 (‘New Procedure Bill’) and Bharatiya Sakshya Bill, 2023 (‘New Evidence Bill’), which were moved in the Lok Sabha recently with the proclamation of freeing the criminal justice system from the clutches of a colonial legacy, are symbolic of such an overhaul.
The question is whether the three extant laws — the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) (which is a post-Independence law) and the Indian Evidence Act, 1872 — carry such alien moral or jurisprudential baggage meriting a complete overhaul. I would think not. These are exhaustive enactments with a wide array of sections providing for substantive offences, their punishments, the mode of their trial and the evidence that can be led in connection therewith. The Evidence Act applies to both civil and criminal trials. Some provisions in the IPC do certainly smack of a societal morality that could be said to be misplaced all these decades later. For instance, adultery and unnatural sexual offences, both of which have been struck down/read down by the Supreme Court of India. While Section 377 is now absent in the New Penal Bill, adultery has been reintroduced! A fresh challenge to this provision is almost certain.
Reframing, not removal
It was a pleasant surprise to hear official statements that sedition was being done away with. However, the Bill does no such thing. On the contrary, clause 150 of the New Penal Bill reintroduces it in a more draconian manner, with stricter punishment and more vague and arbitrary ingredients such as ‘subversive activities’, which are open to subjective interpretation. This single provision will weigh the proverbial tonne of bricks upon the accused once the bill partakes a law. Marital rape finds no mention. Alarmingly, the New Procedure Bill provides for seeking police custody up to ninety days in respect of offences punishable with imprisonment with ten years or more. This can be a serious human rights violation, especially when such cases end in acquittal.
Having appeared in a few death penalty cases for the accused before the Supreme Court, I can say with some certainty that the law on death sentencing has undergone a sea-change over the past few years, courtesy judgements of the Supreme Court that now provide for detailed mitigation reports, psychological assessment of the convicts, fair and just hearing on sentencing and a general re-look at the judge-made (and rather vexed) ‘rarest of the rare’ test for capital punishment.
One would have expected the Bills to codify much of this new jurisprudence in dealing with death penalty cases, if not do away with the death penalty itself — which has been a long-standing demand of several sections of civil society. The New Procedural Bill merely vests the high court with the discretion to order further enquiry before confirming a death sentence.
Welcome provisions
Welcome insertions in the Bills are those relating to automatic bail to first-time offenders who have undergone detention for one-third of the maximum sentence applicable (this is presently available where the detention undergone is half the period prescribed), video recording of the statement of victims of rape or those suffering mental health disability at their residence in the presence of the parents / guardians / local social workers/ interpreters, prescription of a period of sixty days for framing charge (negated by the extension in the period for filing charge sheet, which delays the possibility of default bail to the accused) and the provision for forensic experts to visit the scene of serious offences and also conduct videography. The time frame of thirty days (with a possible extension up to sixty) prescribed to pass judgement upon conclusion of arguments is likely to put undue pressure on trial judges. While such time-frames can expedite the disposal of cases, hurried judgements can often lead to disservice to the larger cause of justice, especially in complex cases involving numerous witnesses and evidence.
It is interesting to see a provision for ex parte trial and conviction of accused who remain absent after charges are framed. Such accused were treated as ‘proclaimed offenders’ hitherto. Convictions in such cases will now become pyrrhic. The provision for mob-lynching with possible death penalty is far-reaching in our current social milieu. It will be intriguing to see the provision applied even-handedly by the police and investigating agencies in the future.
It is to be remembered that the criminal law architecture in India transcends these three enactments and has now come to be peppered with ‘special laws’ such as the Prevention of Money Laundering Act, 2002, Unlawful Activities (Prevention) Act 1967, Protection Of Children from Sexual Offences Act 2012, Narcotic Drugs and Psychotropic Substances Act, 1985, and many others which contain overriding provisions on offences, burden of proof, and procedure. That landscape will remain untouched. Most of these laws also provide for special courts to expedite trials. Special courts for offences against MPs/MLAs are established pursuant to directions issued by the Supreme Court and it would have been refreshing to see these codified in the draft Bills.
Amendments expected
The IPC has been amended 78 times, the CrPC 19 and the Evidence Act 30 times as of 2018. Several amendments have emerged in light of the recommendations of the Justice Malimath and Justice Verma committees, with an emphasis on the rights of minors, women and persecuted accused. The Insolvency and Bankruptcy Code, 2016 was an instance of an ‘overhaul’ but has already seen six amendments. One would expect the same with the Bills once they are passed after review by the Parliamentary Committee.
Amendments, and more so, new enactments invariably bring with them complex questions as to their effect on pending cases. The rule of thumb is while procedural changes are retrospective, substantive ones can only be prospective (unless stated otherwise). Added thereto is the Constitutional prescription in Article 20 that no person can be convicted for an offence which was not an offence at the time of the commission of the act, or be given a higher conviction than applicable under the existing law. Though all three Bills exclude their application to pending proceedings and trials, courts are likely to be bombarded with interpretation as to this matter as case law could apply quite differently in the circumstances. The net result could be extended delays in the actual trial of the offences, which could frustrate the prosecution and the defence alike, especially where the accused are in custody. One could also expect petitions under Articles 226 and 32 being filed questioning the vires of several of the new provisions and their impact upon fundamental rights. Here, the onus will again shift to the judiciary to counterbalance an assertive executive and ensure that the rights of the victims and the accused are weighed alike.
There is also something to be said about captioning these Bills in Hindi/Sanskrit. As the sections are themselves in English, this appears to be mere symbolic topdressing. I would wonder how these laws will be cited before a magistrate in say, Madurai or Meghalaya. The ongoing conversation in the legal world is about moving towards legislation and drafts that are simpler, and more comprehensible to the common litigant. Here, one will have to first get past the titles.
Article 1 of the Constitution of India begins with the words ‘India, that is Bharat’ and the draftspersons are unabashed in using the latter to describe the Bills as Bharatiya. However ‘Indianising’ laws will take more than naming them in Sanskrit or Hindi.
(Aditya Sondhi is senior advocate, Supreme Court of India. Research acknowledgement: Advs Meghana TM & Navami Krishnamurthy)