Sidharth Luthra writes on proposed Criminal Codes: It’s still colonial

Source– The post is based on the article “Sidharth Luthra writes on proposed Criminal Codes: It’s still colonial” published in “The Indian Express” on 23rd August 2023.

Syllabus: GS2- Polity

Relevance: Important bills and acts

News– The Union Home Minister recently introduced three comprehensive Criminal Justice Codes on procedure, evidence, and offences before Parliament.

What are some positive aspects of the new criminal codes?

Bharatiya Nyaya Sanhita incorporates community service. It is a commendable inclusion. But, open prisons are still not covered.

The Bharatiya Nagarik Suraksha Sanhita (BNSS), introduces video conference trials and modifies the process of e-filing First Information Reports.

What are issues with the new criminal codes?

It introduces offences such as fake news, terrorism, organised crime, and corruption. However, it does not abolish the existing specialised legislations that address these crimes.

The new Bharatiya Sakshya Sanhita fails to incorporate adjustments that align with the principle of reverse burden or presumptions found in the specialized laws pertaining to terrorism, corruption, and organized crime offenses.

The new code increases the penalties for reckless and negligent actions resulting in death. But, it disregards the unique handling of recklessness and negligence practised in Singapore. It also amplifies the vulnerability of medical professionals.

There is lack of a well-defined reasoning behind the decision not to harmonize the penalty for mob lynching with that of murder or intentional culpable homicide.

The restructuring of sections and the decrease in their quantity by consolidating definitions, updating illustrations is commendable. But, it does not significantly change the fundamental nature of the 1860 Code.

Sedition is abolished under Section 124A of the IPC. But, it is reintroduced as Section 150 in the Bharatiya Nyaya Sanhita.

This closely resembles the concept of sedition and continues to raise concerns about freedom of expression and the potential for misusing it against dissenting voices.

There are already sufficient provisions in existing laws like the IPC/UAPA to address the matters intended to be covered.

Bharatiya Nagarik Suraksha Sanhita  does not provide comprehensive security to detainees. The chapter on plea bargaining remains unaltered and limited to sentence bargaining, rather than encompassing the option to admit guilt for a lesser offense.

Expanding the authority of the police to request custody (PC) for 40/60 days undermines the right to bail.

Broadening the scope to apply the 15-day request custody provision doesn’t align well with the intention of breaking free from the colonial past,

It does not correspond with BNSS’s stated objective of promoting advanced forensics and scientific investigations to enhance the quality and speed of inquiries.

The government should have contemplated reducing the 15-day PC duration. By extending police powers to request remand, BNSS contradicts Article 21.

Even our colonial rulers who introduced this provision held reservations about the 15-day PC period. Pre-independence Lahore High Court Rules mandate the shortest feasible PC period and prohibit obtaining confessions.

Way forward-

Rationalising laws is a positive step forward. But, for a true departure from the colonial legacy, there is a need for a coherent philosophical framework for criminal justice.

It is imperative to streamline provisions, decriminalize when necessary, introduce criminalization for emerging forms of criminal activity, regulate arrest powers, implement guidelines for bail and sentencing to guide discretion.

There is a need to reinforce the presumption of innocence and safeguard the fair trial rights of the accused, while also securing the participatory rights of victims.