To truly decolonise India’s criminal justice system, a shift towards less arbitrary law-making, responsible policing, and evidence-based punishments is necessary.
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In recent weeks, our discussions have delved into the considerable failings of the three bills aimed at revamping India’s criminal justice system. From their inability to ‘decolonise’ effectively to the lingering Victorian influences and their oversight of crucial women’s issues, the bills reveal substantial shortcomings. As we conclude this examination, a critical question arises: What would a sincere and deliberate effort to enact the primary criminal codes of India look like?
The Indian Penal Code follows the utilitarian philosophy of Jeremy Bentham, an approach that involves the idea that punishments should match the crimes – assuming that punishment can inspire positive outcomes through deterrence. Regrettably, the bills ostensibly aimed at ‘decolonising’ India's criminal justice system lack a clear articulation of the penal philosophy for the modern post-colonial Indian State. They fall short of clearly defining the object of criminal law in India and fail to address what the State deems worthy of criminalisation.
The rewriting of criminal laws offers a unique opportunity to re-imagine India's approach to crime and punishment, rooted in progressive and reformative conceptions of justice.
Our analysis of legislative and judicial perspectives on criminalisation shows that these institutions understand the profound impact of criminal law on citizens' lives. Courts have incrementally worked to restrict the scope of criminal law, striking down provisions that criminalise begging, homosexuality, attempted suicide, and adultery. In doing so, the courts have established a general guiding principle that opposes criminalisation if it violates fundamental rights, personal autonomy, or if the criminal provision is discriminatory. Despite a broad consensus on the principles of criminalisation, a pervasive issue of overcriminalisation persists in India, especially in laws related to social and regulatory matters. Criminal provisions, spanning from kite-flying regulations to industrial registration, are omnipresent, contributing to a legislative landscape burdened with over 6,000 criminal provisions across over 400 Union laws.
The revision of laws also presents an opportunity to rationalise punishments, ensuring that they are proportionate and align with the object of criminalisation. However, the existing system exhibits arbitrariness in prescribing punishments; for example, the offence of assault or using criminal force carries a punishment of three months, while ‘flying a kite dangerously’ can lead to a prison term of two years.
Further, for a genuine overhaul of our criminal justice system, there is a pressing need to make the entire process truly citizen-centric. Addressing the procedural shortcomings of these bills necessitates amendments that carefully consider the issues afflicting our criminal procedure. The bills, while claiming the need for a comprehensive review of criminal justice processes, fall short of delivering on this promise. This review should assess legal loopholes, procedural bottlenecks causing delays, and adopt measures aligned with the contemporary needs of our people.
Similarly, a critical evaluation of our evidence law is imperative. The Indian Evidence Act (IEA) bears the imprint of colonial influences and stereotypes about the unique characteristics of Indian culture. The perceived prevalence of deceitfulness among Indians significantly influenced the drafting of the IEA, resulting in high standards of proof, an increased emphasis on medical evidence, and an excessive reliance on expert testimonies. A thorough review of the IEA is essential to ensure it aligns with contemporary values, fairness, and a citizen-centric legal system.
To truly decolonise India’s criminal justice system, a shift towards less arbitrary law-making, responsible policing, and evidence-based punishments is necessary. This involves conceptualising a comprehensive set of principles guiding criminalisation and punishment prescription. Balkan countries like Albania, Croatia, and Slovenia prescribe criminal sanctions for acts threatening personal liberties and human rights. Similarly, Germany, which moved away from punitive measures, redefined its approach to criminal justice by abolishing the death penalty, shortening incarceration durations, and broadening the range of offences subject to fines or probation.
Drawing inspiration from these countries, India can adopt a principled framework for criminal law-making. The framework should consider protecting values that are vital for society and its political establishment; ensure that constitutionally protected rights/actions are not criminalised directly or indirectly through vague terms; and ensure that punishment aligns with the goal of safeguarding values, i.e., criminalisation must either remedy the wrong, exact revenge, or prevent future crime through incapacitation, deterrence or reformation. The legislative process should also incorporate pre-legislative tests and impact assessments to ensure enforceability, proportionality, and fiscal responsibility. Although India has a pre-legislative consultation policy, its consistent implementation remains a challenge.
In conclusion, the bills aimed at ‘decolonising’ India’s criminal justice system represent a missed opportunity to establish a principled, citizen-centric, and progressive legal framework. Before these bills are passed or further attempts are made at revamping our criminal justice system, the government must holistically assess the problems within the criminal justice system and articulate a clear vision for its modernisation. Through a concerted commitment to thoughtful reform, evidence-based solutions, and a collective vision for a just society, India can lay the foundation for a criminal justice system that truly serves the needs of the 21st century.
(Neha Singhal is Lead, Criminal Justice, at Vidhi Centre for Legal Policy)
(This is the fourteenth and last article in the DH-Vidhi Centre for Legal Policy series on the proposed new criminal law codes)