Major Changes Required in Criminal Law

Introduction:

Justice Bhagwati once stated, “We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind.”[1]

As per the need of the society, the criminal justice system needs to change in order to prevent the crime and its social control. The scenario of the crime in the country is disturbing and the hopes of the people in society have been shattered. Law is the instrument by which the crime can be controlled and the rights of the people can be restored. The objective behind the Criminal Justice System is to maintain “law and order” in the society and to establish natural justice principle and protecting it by rule of law.

As society progresses, the crime and its way also develop. India Criminal Justice System and laws are old. It has been amended whenever the need was realised but it still not at that level where the needs of the society can be fulfilled. Evidence Act and the Indian Penal Code was established during the British rule. Both of these laws are substantive laws and thus require major changes. Even the Code of Criminal Procedure also has not been amended where it can fulfil the current need of Criminal Justice.

Need for Changes in Indian Criminal Justice System

The outdated century-old laws are comprised under the Criminal Justice System which led to the people suffering harassment by various government agencies. It has also put a lot of pressure on Judiciary and thus proved to have become ineffective. It takes years for the system to bring justice to the victims and cannot deter criminals. The synergy between police, judiciary and prosecution is lacking and led to the inefficiency in delivering justice. The nature of crime is becoming complex because of the innovations in technology. The crime is increasing rapidly in the country. The investigation is also being delayed which is leading to the delay in dispensing justice. the system has also experienced inequality in providing justice. the powerful and rich gets acquitted and sometimes they don’t even get convicted in serious crimes. The confidence of a common man is also getting lowered as the judicial procedures are now becoming more expensive and complicated. The cases of mob violence are also rising. There are many crimes such as marital rape, custodial torture etc, which is still not being addressed. Many committees have recommended few reforms regarding developing of Criminal Justice System.

Malimath Committee Recommendations

This Committee recommended for the appointment of more judges and the establishment of the National Judicial Commission. It states for this constitution which will deal with the appointment of Judges in Higher Courts. It also mentions about the amendment of Article 124 which will make the impeachment of the judges less complex. Separate criminal division in Higher Courts which will comprise of those judges with specialisation in criminal law.  The practice of “inquisitorial system of investigation” which is followed by many developing countries such as France and Germany. Court to be provided with the power to summon person even if it is not listed as a witness if necessary. A modification in Article 20(3) was also recommended. Article 20(3) of the Indian Constitution mentions about the right of the accused where he cannot be compelled to give a statement or be a “witness against himself”. The Committee recommended that the court will be provided with the freedom to ask questions of elicit information from the accused and if the accused refuses to answer the question, the court can draw an inference against the former. The accused should be made aware of the rights which he/she have in all regional languages and they should be enforced. A schedule regarding this in brought to the Code. “Proof beyond a reasonable doubt” is followed by Court for convicting accused which becomes an unreasonable burden on Prosecution but “if the court is convinced that it is true” should be followed while evaluation the matter. The victim should be given adequate compensation and should be allowed to participate when a serious crime is involved in a case. The Committee also recommended for the establishment of Victim Compensation Fund where the assets that are confiscated from the crime can be used.

• ISSUE IN RECOMMENDATION

The committee recommends for the confession to be admissible as evidence which is made to a Police Officer with senior rank but it has always come under the scrutiny due to the cases and allegation of custodial deaths, torture, tampering with evidence and fake encounters. Also the substitution of “beyond a reasonable doubt” might have an adverse implication on the suspects of the crime which will require considerable deliberation.

Draft by NR Madhava Menin Committee on National Policy for Criminal Justice

Criminal offences need to be reclassified which are enlisted by IPC. The classification would be done in four comprehensive codes which will be on the basis of severity and management of the Criminal Justice system and its an appropriate response. The codes are:

1. Social Welfare Offences Code: the focus of this code is on restitution and reparation which substitute punishment.
2. Correctional Offences Code: it covers those crimes that are punishable up to three years of imprisonment or fine.
3. Penal Code for graver offence: it covers those crimes that are punishable for more than three years or capital punishment.
4. An Economic Offences Code: it is for those crimes that endanger economic security under economic laws and IPC.

The above-mentioned Codes will incorporate nature of trials, rules of procedure, evidence and type of punishment. This scheme id for reorganising the criminal law and its procedure which aims at the better management of the scenario involving crime.

Major Current Reforms in Indian Penal Code

• Home ministry proposed for the insertion of provisions in IPC concerning anti-racial discrimination. The amendments were in Sections 153A and 509A. It received a lukewarm response from the Government. These sections deal with “racially motivated crimes.”
• The parts of Section 377 were decriminalized. Section 377 of the Indian Penal Code used to criminalize the relation between same-sex. After the amendment, the LGBTQ community was allowed to be in a relationship with the same gender. It brought a huge change in society.  
• The attempt to commit suicide was decriminalised by the Government by dropping Section 309. This section under IPC states about the punishment for attempting a suicide which was fine, imprisonment for one year or both.
• Section 497 was struck down which talks about adultery. This decision was taken by the Supreme Court of India. But it still can be used as a ground of divorce but is not a criminal offence anymore in India. Before the amendment, adultery was a crime under Section 497 of IPC.

Major Changes Required Under Criminal Law

The appointment of more judges is required along with police personnel. The substitution of “proof beyond a reasonable doubt” might result is counterproductive. Instead, the onus should be on improvement of investigation skills. The quality of documentation needs to be improved and the responsibilities of a criminal investigation should be separated from the duties in maintaining law and order. Scientific techniques should be deployed by beefing up of forensic labs. The investment in infrastructures is the need of the hour. For reducing the possibility of witnesses and accused to go back on their word, the audio and visual recording should be made mandatory which will benefit the judges.

The following crimes should also be considered in Criminal Law:

1. Criminalization of Marital Rape.
2. Under the sexual offences under the Indian Penal Code, the gender neutrality should be added in the definition.
3. The language under Section 124A should be amended as it is not well defined and it creates a lot of confusion.
4. Law related to Match and Spot-fixing should be included under Criminal Law.
5. Dilution of right to appeal in heinous crimes.
6. Mandatory of forensic evidence
7. Law against custodial torture and death.

Conclusion

As society is progressing, criminal laws cannot stay in the past. It should be amended with time so as to catch up with the people and ensuring justice. The new laws will reflect the reality of modern times. They should be made in accordance with the aspiration of democracy and should provide speedy justice to people suffering in the country. The reforms that are made in the criminal law will have no effect if they are not being improved from time to time. And the improvements should not only consider laws but prisons, police, prosecution and judiciary. A committee should be formed for Criminal Justice Reform with a mandate to evolve the policies of criminal justice. The recommendations by the Committees along with the Law Commission of India should be considered and the exercise of the new policies should be ensured.

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Reference:

[1] National Textile Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC 228.