Faizan Mustafa writes: New penal code falls short of its laudable objectives

Source: The post is based on the article “Faizan Mustafa writes: New penal code falls short of its laudable objectives” published in “The Indian Express” on 18th August 2023.

Syllabus: GS2- Parliament (Law and Justice)

News: In this article author discusses recent changes in the Indian Penal Code, highlighting the updated definitions, the removal of some terms, and the introduction of new provisions. They critique some revisions, emphasizing the need for clearer definitions and alignment with modern legal standards and constitutional values.

What is the importance of criminal law?

Importance of Criminal Law:

1. Instrument of Safety: Criminal law ensures the safety and well-being of citizens by deterring and penalizing harmful actions.
2. Reflection of State-Citizen Relationship: It is a direct representation of how the state interacts with its citizens, indicating the nature and priorities of governance.
3. Community Impact: Beyond individual consequences, criminal law affects the entire community’s harmony and order.
4. Constitutional Vision: Ideally, criminal law should align with a nation’s constitutional principles, upholding rights and ensuring justice for all.

What recent updates have been made in the Indian Penal Code of 1860?

1. Revised Definitions: The new code has revised some definitions. For instance, it has broadened definitions in cases like rape.
2. Sedition: The term “sedition” is removed, but its scope has broadened through terms like “subversive activities”. No definition of subversive activities given in the code.
3. Death Penalty: The death penalty remains, with added provisions for cases like the rape of a minor.
4. Adultery Modifications: The offense of adultery has been reframed to address cases where sex occurs on the false promise of marriage or other deceitful assurances.
5. Mob Lynching: There’s a new provision to punish mob lynching by groups of five or more, though the term “mob lynching” isn’t used.
6. New Penalties: For specific crimes, community service has been introduced as a potential punishment, especially for first-time offenders in minor offenses.
7. Forensic Emphasis: The code now includes provisions emphasizing the importance of forensic investigations in major crimes.

What are the issues with these new updates?

1. Ambiguous Definitions: Despite revisions, some terms remain unclear. The distinction between “culpable homicide” and “murder” is still not well-defined.
2. Sedition Ambiguity: While the term “sedition” was removed, introducing terms like “subversive activities” without clear definitions can lead to misuse.
3. Controversial Death Penalty: The retention of the death penalty, especially for the rape of a minor, reflects a belief in dated ideas of retribution and deterrence.
4. Gender Neutrality Absent: Despite aims for gender-neutrality, the crime of cruelty remains gender-specific. The new code also fails to recognize marital rape as an offense.
5. Incomplete Hate Speech Provisions: Sections 153A and 153B, dealing with hate speech, saw no substantial improvements, leaving gaps in addressing this crucial issue.
6. Conspiracy Concerns: The current provision on criminal conspiracy can penalize individuals merely for agreeing to commit an offense, even if no action follows. This approach, inherited from colonial times, can potentially punish mere intentions, raising concerns about its misuse against political or social activists.
7. Blasphemy: Retaining the blasphemy law places India alongside countries with restrictive views on freedom of expression.
8. Adultery Reappearance: The revised code brings back the offense of adultery in a new form, potentially infringing on personal liberties.