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Criminal Law Reforms In Recent Times

Despite living in the 21st century, we find ourselves being governed by laws formed over a century and a half ago. Given that the function of law is to ensure social cohesion, and to allow individuals to live together in peace and as society changes, the law must maintain cohesion, it would come off as no surprise that a need to reform the current criminal laws is felt.

With a total of 351 statutes penalizing some offence or the other, with the primary substantive and procedural criminal laws being the Indian Penal Code 1860 (IPC), the Indian Evidence Act (Evidence Act) and the Code of Criminal Procedure 1972 (CrPC), our criminal law is one of the oldest ones in the world.

Examples Of The Attempts Made At Criminal Law Reforms

The 42nd Law Commission Report, 1971, recommended some major amendments like the proposal to include certain social and economic offences in the Indian Penal Code, etc. none of which were adopted by the parliament.

In 2003 and 2007, the reports of criminal reform committees, the Malimath Committee, and the Madhav Menon Committee respectively, were devised to keep the criminal laws up to the need of that time. However, none of these recommendations was adopted for varying reasons.

A more recent example made by the legislature is of the Criminal Law Amendment Act, 2013 and Criminal Law Amendment Act, 2018. A Criminal Reform Committee was also set up in May 2020.

Apart from the legislative attempts made at reforming the criminal laws, the judiciary has also stepped up. In 2018, the Supreme Court has pronounced judgements ruling two Victorian laws as unconstitutional.

In Navtej Singh Johar v. Union of India, the apex court declared Section 377 unconstitutional as it violates Article 21 and in another judgment Joseph Shine v. UOI, the constitutional bench struck down Section 497 and parts of Section 128 which dealt with adultery as it was discriminatory violating Article 14, 15 and 21 of the constitution.

About Criminal Amendment Act, 2018

The criminal law amendment bill 2018 was introduced in Lok Sabha on July 23, 2018, by the Ministry of law and justice. The same was passed by Lok Sabha and Rajya Sabha on 30 July and 6 August respectively.

This bill aims to provide grievances to the victim, who has been sexually assaulted and ensure the death penalty for those who, convicted for raping a girl below 16 or 12 years. It replaced the ordinance promulgated by the President of India in April and also did relevant amendments in:
  1. IPC 1860
  2. Cr. P.C 1973
  3. Evidence Act, 1872
  4. Protection of Child from Sexual Offences (POCSO) 2012

Key Features

Relevant changes are brought in for the protection of a girl from the heinous crime of rape in our penal laws.
Offence Amendment
Rape
  • Minimum 10 years of imprisonment
  • Police are under compulsion to complete the investigation within 2 months after the FIR lodged
  • Time to dispose of the appeal starts after 6 months.
Rape of girl below 16 years of age
  • A minimum period of 20 years of imprisonment
  • Anticipatory bail will not be granted to the accused.
Rape of girl below 12 years of age Rigorous imprisonment for 20 years or imprisonment for life or may be liable for the death penalty.
Rape by a police officer
(Irrespective of place)
Rigorous imprisonment which is not less than 10 years
Gang Rape of a girl below 16 years of age Rigorous imprisonment for life and liable for fine.
Gang Rape of a girl below 12 years of age Rigorous imprisonment for life and with a fine or with the death penalty.

Amendments Made

  1. In The Indian Penal Code

    Amendments were made in 3 sections and 3 new sections were added in IPC.
    The Sections which were amended are:
    1. Section 166A
      This section deals with public servants disobeying directions under the law. Clause (c) is substituted with section 376AB, 376B, 376C, 376D, 376DA and 376DB.
       
    2. Section 228A
      This section deals with the disclosure of the identity of the victim of certain offences.

      Sub section 1 of this section was substituted with Section 376AB, 376B, 376C, 376D, 376DA, and 376DB.
       
    3. Section 376
      This section deals with the punishment for rape and under this section, sub-section 1 was substituted as "whosoever commits an offence of rape shall be punished for the term not less than 10 years or which may extend to life imprisonment and with fine".

    Section 376(2)(a) and 376(1) has been repealed. To replace Section 376(2), 376(3) has been added which provides that whoever commits the offence of rape with a woman, who is under the age of sixteen years shall be punished with rigorous imprisonment for a term not less than 20 years, and shall extend to imprisonment for life which impliedly intends to introspect what he had been done is thoroughly illegal and off-base, or in the legal sense, a reminder for that person natural life, and with fine or the death penalty. And also, liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.

    It also commands that any payment by the denounced under this section will be paid to the victim.

    The new sections which were added are:
    1. Section 376AB
      This Section provides that whoever commits rape with a woman, who is under 12 years of age shall be punished with:
      • rigorous imprisonment for a term which shall not be less than 20 years, and it may extend to life imprisonment
      • liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.

        It also states that any payment by the denounced under this section will be paid to the victim.
         
    2. Section 376DA
      This Section states that when a woman, under the age of sixteen years, is raped by one or more person constituting a group or done some action for the pursuance of common intention, each of that person deemed to commit the offence of rape and shall be punished with:
      • imprisonment for life, and
      • fine or
      • death penalty and
      • will be liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.
      It also states that any payment by the denounced under this section will be paid to the victim.
       
    3. Section 376DB
      This section states that where a woman who is below the age of 12 years is raped by one or more person constituting a group or action for the pursuance of common intention, each person shall be deemed to commit the offence of rape, and punished with:
      • imprisonment for life, and
      • fine
      • death penalty
      • will be liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.

        It also states that any payment by the denounced under this section will be paid to the victim.
         
  2. In Code Of Criminal Procedure

    The following sections were amended:
    1. Section 173
      In this section there is an amendment in sub-section (1A) which provides that rape of a child may be completed within 3 months, this sub-section was substituted with "an offence under section 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code shall be completed within 2 months".
       
    2. Section 374
      In section 374 of Cr.P.C, after sub-section (3), the following sub-section inserted i.e., sub-section (4) and read as when an appeal has been filed against a sentence passed under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or Section 376E of the Indian penal code the appeal shall be disposed within 6 months from the date of filing of such appeal.
       
    3. Section 377
      In Section 377 of the code of criminal procedure, after sub-section (2), a new sub-section was inserted i.e., sub-section (3) and read as when an appeal has been filed against a sentence passed under section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code the appeal shall be disposed of within 6 months from the date of filing the appeal.
       
    4. Section 438
      In Section 438 of the Code of Criminal Procedure, after sub-section (3), a new sub-section inserted i.e., sub-section (4) and provides that nothing in this section shall apply to any case involving the arrest of a person on an accusation of having committed an offence under subsection (3) of Section 376, 376AB, 376DA, 376DB of the Indian penal code.
       
    5. Section 439
      In Section 439 of CrPC, after sub-section (a), (1) provision, another provision was added and says that "the high court and the session court shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of Sections 376, 376AB, 376DA, 376DB, give notice of the applicant for the bail to the public prosecutor within 15 days from the date of receipt of such notice.
       
    After sub-section (1) of Cr.P.C following sub-section was inserted i.e. (1A) which provides that the presence of the informant or any person authorized by him, shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of sections 376, 376A, 376DA, 376DB.
     
  3. In Indian Evidence Act

    The following two sections have been amended:
    1. Section 53A
      This section deals with the evidence of character or previous sexual experience not relevant in certain cases substituted with Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB.
       
    2. Provision of Section 146
      This section deals with questions lawful in cross-examination (what the questions are must be asked by the Police Officer) when a witness is cross-examined, he may in addition to the question hereinbefore referred to, be asked any question which tends:
      • Tend to test the veracity.
      • To discover who he is and what is his position in life.
      • To sake his credit, by injuring his character, although the answer might tend directly or indirectly to criminate him, might expose him to a penalty or forfeiture.
      Provision 3 or this section were substituted with section, 376AB, 376B, 376C, 376D, 376DA and 376DB.
       
  4. POCSO ACT
    By the Criminal Amendment Act, 2018 there is a change in Section 42 of the POCSO Act, 2012. This section deals with Alternative Punishment and Sections 376A, 376C, 376D were substituted with 376A, 376AB, 376B, 376C, 376D, 376DA and 376DB of Indian penal code.[1]

Lack Of Criminal Law Reforms

Laws such as sedition, blasphemy and criminal defamation were used as weapons to tame their Indian subjects. Such common-law legacies are still functioning in the post-independence era.

The Supreme Court, in several cases, has upheld the legality of the sedition as an exception to the freedom of speech provided under Art 19(1)(a) of our constitution. The use of this draconian law to penalize anyone who raises their voice goes against constitutional rights. J. Chandrachud has said that labelling dissent as "anti-national" or "anti-democratic" strikes at the heart of deliberative democracy. He further added that dissent is the safety valve of democracy.

In 2018, the Law Commission published a consultation paper recommending the removal of the law of sedition from IPC as they are a breach of our fundamental rights. The report further noted that, in the world's largest democracy, it is a misfortune that its citizens do not have the right to fairly criticize their government.

Efforts of the United Nations as an advocate of free speech and the adoption of the Universal Declaration of Human Right has pushed countries such as England to rethink their domestic laws. The country which bestowed us our penal code deleted the law such as sedition a decade ago. Even before the repeal, it was sparsely used.

A similar set of events can be witnessed in Australia where the Australian Law Reform Commission suggested that the Sedition should be removed from their federal criminal law and the recommendation was implemented with the enactment of the National Security Legislation Amendment Act of 2010. The United States has the Sedition Act of 1918 criminalizing sedition. Since then, the American courts have narrowed the interpretation of the law which resulted in its obsoletion, but the act is yet to be repealed.

A similar observation can be made in decriminalizing the act of blasphemy. Section 295A of IPC, which was introduced in the year 1927 as a tool to harass people, is a violation of freedom of speech guaranteed to us by the constitution but still, it has not been repealed, whereas England removed blasphemy from its criminal act by the Criminal Justice and Immigration Act 2008. Other countries which have repealed blasphemy from their penal laws in recent years are Norway, Iceland, Malta, the Alsace-Moselle region of France, Denmark, Canada, New Zealand, and Greece.

Other than hate speech crimes, IPC also contains other outdated laws such as the criminalization of attempts to suicide and prostitution. Since 1947, the IPC has been amended 77 times, but it still lacks contemporary changes. Other than IPC, the Press and Registration of Books Act, 1867 and the Public Gambling Act, 1867 are some acts that are obsolete in the current time. The Prisons Act 1894, which was termed barbaric and objectionable by the Supreme Court 40 years ago as it contains inhumane punishments, are still in force in large parts of the country.

Our procedural law and its execution have been handled poorly. Lack of transparency, the pendency of cases, cumbersome procedures, lack of coordination, corruption, and lack of awareness amongst individuals have multiplied the misery of the people. Police brutality and harassment of the prisoner needs to be taken more seriously. Internal committees should be established to look into the condition of people in judicial and police custody. To reduce the burden on the judiciary, plea proceedings should be encouraged, fast track courts should be made more efficient and ample judicial officers should be appointed. These changes are needed to be in tune with the changing society.

There have been several redundancies between other criminal acts enacted by the parliament. At present, there is the Chemical Weapons Convention Act, 2000 and Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005. Both carry provisions relating to chemical weapons, and resultantly there are two different mandatory minimum sentences for the manufacture of chemical weapons under the two statutes. The 2005 Act carries a non-obstante clause that operates in case of conflict with any other law, but the gravamen is that we have two provisions for the same offence.

Additionally, there are at least two central statutes on each of these subjects medical termination of pregnancy, narcotic and psychotropic substances, employment of manual scavengers and explosive substances. Although these legislations cover different aspects of the same subjects, having multiple statutes inevitably confuses.

Conclusion
The main function of the law is to ensure social cohesion, and to allow individuals to live together in peace. In theory, social cohesion will only exist when people recognise the authority of the law. Therefore, as society changes, so too must the law in order to maintain cohesion. There are a number of social, cultural, economic and political changes, which lead to the need for a change in the law.

Even though amendments were made in some parts of the criminal laws of India, there remains a lot which needs to be addressed.

Our criminal laws are outdated, obsolete and contradictory to several human rights. With the development of technology and growing human rights activism, the government must review and update the criminal laws every 5 years, say the least.

The present criminal reform committee, scrutinizing a handful of acts, will not be efficient as the overhaul of the entire criminal reform is well past its due deadline. Reform will succeed only when all components of the criminal justice system are in tune, and this will happen only when all the outdated aspects of criminal laws are either removed or given a contemporary context.

End-Notes:
  1. The Criminal Law (Amendment) Act, 2018, No. 22 Of 2018, 11th August 2018

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