Centre’s criminal code bills: Weakening criminal law’s guardrails

Source: The post is based on the article “Menaka Guruswamy on Centre’s criminal code bills: Weakening criminal law’s guardrails” published in The Indian Express on 2nd September 2023.

Syllabus: GS2- Indian Polity – Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these

News: The author discusses changes in India’s criminal law with three new bills introduced by the government. These bills merge “special statutes” into general criminal law, potentially harming procedural safeguards for the accused. This could lead to innocent people suffering unfairly. The article emphasizes the need for checks and balances in criminal proceedings.

About India’s new criminal law

Introduction of Bills: On August 11, the government introduced three new bills to replace three longstanding laws, giving them new names.

Three bills are:

The Bharatiya Nyaya Sanhita, 2023 (to replace the Indian Penal Code, 1860),

the Bharatiya Nagarik Suraksha Sanhita, 2023 (to replace the Code of Criminal Procedure, 1973) and

the Bharatiya Sakshya Bill, 2023 (to replace the Indian Evidence Act, 1872)

Shift in Approach: Traditionally, India had special statutes for complex crimes. Now, these special laws are being incorporated into general criminal law.

Why are there chances of mixing special laws into general ones?

Change in Legislative Practice: Historically, India used special statutes for complex crimes, ensuring both stringent punishments and procedural safeguards. The new bills deviate from this approach.

Treatment of Organised Crime: In the past, organized crime was handled by special legislation like Maharashtra Control of Organised Crime Act, 1999 (MCOCA). The Bharatiya Nyaya Sanhita, 2023 now includes provisions for organized crime within general law, broadening its definition to include activities like fraud, money laundering, and more.

Absence of Procedural Safeguards: Previously, MCOCA required high-ranking police approvals and had specific safeguards. The new proposed laws lack such detailed procedural protections.

What are the other concerns?

Potential Harm to Innocents: Without the traditional checks and balances, there’s a risk that innocent individuals might be unfairly treated under the new legal framework.

Trust in the Legal System: The dilution of procedural protections and the absence of clear checks can erode public trust in the criminal justice system.

What should be done?

Maintain Distinction: The historical practice of having distinct special statutes for specific crimes should be maintained to ensure checks, balances, and targeted procedural safeguards.

Refine Definitions: The Bharatiya Nyaya Sanhita, 2023 has broad definitions, especially concerning “organised crime”. This implies a need to make definitions more precise to avoid misinterpretation.

Prioritize Fair Trials: Emphasize and safeguard the principles of a fair trial and the rule of law in any legal reforms.