This article is written by Varchaswa Dubey, from JECRC University, Jaipur. The article is concerned with the new reforms which the Ministry of Home Affairs has proposed to bring in force.
The Indian criminal justice system has significantly been inherited from the British criminal justice system, and most of the punitive, procedural, and evidence laws are not only outdated but also need amendments while considering the need for advanced laws.
The need for new laws is not only due to the advanced types of crimes that have started emerging with the advancement of technology, but also the laws need reformation due to there vagueness in contemporary times.
Certainly, the British era legislation required amendments, but also there is a need to reform the administration system, and the detention of the law violators, or else, merely enacting stringent laws will have no effect if there is no legal awareness about the punishments which are imposed for committing a gruesome act against the society.
The Ministry of Home Affairs (MHA) has recently through its notification dated 1 February 2019 constituted a National Level Committee, i.e. Committee for reforms in criminal laws, for reforms in criminal laws and to review the criminal laws in India. The committee has also asked for recommendations from experts in their respective fields of criminal and substantive laws through an online mechanism. The responses of the experts shall be highlighting the issues in the Indian Penal Code, 1860, The Code of Criminal Procedure, 1973, and Indian Evidence Act, 1872 also.
Origins of criminal reforms in India
Reforms in India have been occurring in India during the last few centuries. However, in ancient times, the laws were not codified and only personal religious and customary laws were used to dominate the field of law. The emergence of the British in India, the crown in Britain brought reforms, and codified laws to govern the administration of the company and its people in India.
The first law commission was appointed in the year 1834 under the chairmanship of Lord T.B. Macaulay, who drafted the penal laws for India and submitted its report in the year 1837, which was later enforced as the Indian Penal Code, 1860.
Commissions were constituted to meet the requirements of different laws, and various commissions suggested various criminal laws, reforms, procedural, and substantive laws.
Criminal reforms in India have always been a worryful concept due to the fact that most of the laws which are enacted by the legislation are not only advanced but are also always enacted after several individuals become victims of the vagueness of laws.
Due to incomplete laws enacted by the British, the Second, Third, and Fourth Law Commissions were constituted to suggest the necessary reforms needed in the already existing laws.
Committee formed for reforms in the criminal justice system
The legislature recently introduced the Code of Criminal Procedure (Amendment) Bill, 2020 which is primarily concerned with the kin of the deceased suffering from mental trauma, emotional injury, and economic loss as a result of the criminal act.
The committee will collect opinions of different experts in their respective fields and various other materials required to make new laws and the committee will submit its report to the government. The consultation process began on 4th July 2020 and went on for the next three months. However, due to the Covid-19 pandemic, most of the consultation procedure took place virtually.
History of committees formed for reforms in the criminal justice system
Before the 2020 committee was formed, India has witnessed numerous instances where attempts to bring amendments to the criminal justice system have taken place.
- The Malimath Committee (2003) the most significant step to bring changes in the criminal justice system was taken by The Malimath Committee. The Committee was headed by Dr. Justice V.S. Malimath which not only highlighted the need for a better criminal justice system, but also recommended changes for the rights of the accused in crimes, presumption, and innocence, and burden of proof, justice to the victim of crimes, investigation, courts and judges, trial procedure, witnessed and perjury, vacancies in the court, etc. which was reflected in the Criminal Law (Amendment) Bill, 2003.
- Justice Verma Committee: following the protests associated with the brutal 2012 Delhi gang-rape case, the Justice J.S. Verma Committee was formed to provide quicker trials and enhanced punishments for the perpetrators of extreme sexual assaults. The committee submitted its report, and not only the definition of rape was given wider scope, but also stringent punishment for rape, and other sexual offences were recommended by the committee. Compulsory registration of marriage without any dowry, the introduction of sexual assault of men, transgender, and transsexual rape, punishment for officers for refuses to register a complaint of rape, etc were also suggested by the committee and most of the recommendations are reflected in the Criminal Law (Amendment) Act, 2013.
Provisions under the Indian Criminal Procedural Law which need reforms
Arrest under the Code of Criminal Procedure
An arrest is one of the most abused forms of practice undertaken by police even in contemporary times even without any reason, which further leads to the violation of the human rights of an individual in police custody.
The Indian police is primarily governed by the Police Act, 1861 which is Victorian-era legislation enacted for empowering the police as a direct consequence of the revolt of 1857 (first war of independence). Such legislations in the contemporary times have no significance, and they are indeed empowering the police more than what powers must be given to the police, and it is this reason why police keep abusing the loopholes in the procedural laws.
In India, before independence, the freedom fighters were victims of illegal arrest and detention under these draconian laws, and the condition remains the same after independence. However, instead of freedom fighters, innocent civilians are detained in contemporary times most of the time due to failing in giving bribes to the police.
Section 41 of Code of Criminal Procedure, 1973, empowers the police to arrest a person even on suspicion, or if police believe that such arrest is necessary, and the burden of proof is on the police to satisfy the court and give a reason for the arrest made under this Section. However, there are instances where police may not even present such a person before the magistrate, and the entry of such detention may have not even registered.
Section 46 of CrPC in its exception clause states that no woman shall be arrested after sunset and before sunrise. However, it also provides with an exception to such right regarding arrest that, a woman police officer shall after making a written report, and after obtaining written permission by judicial magistrate first class who have local jurisdiction of such offence may make an arrest. Such laws empower the police to not only harass the detained women but also such arrest may lead to sexual assaults in police custody, defeating the very purpose of police, i.e. to protect and serve.
Section 151 of CrPC is the most abused Section under procedural law wherein, the police are empowered to arrest a person without the orders of the magistrate, however, no person must be kept under custody for more than 24 hours, however, there are cases where individuals are detained illegally, but the legislature is silent on it.
The menace of illegal detention, arrest, and custodial torture is growing, despite the landmark cases like D.K. Basu vs. State of West Bengal (1996).
Investigation and trial
Investigation is the most important aspect in any criminal case, wherein, it is the responsibility of the police to find out the truth as per the law of the land, like identification of the accused, and establishing the guilt of the accused, and produce the same before the respective magistrate. However, the police are not at all trained, and well versed with the process of investigation, which most of the time leads to injustice to the accused or the victim.
Section 156 of CrPC reserves the power of a police officer to investigate and the procedure for such investigation is mentioned under Section 157 of CrPC, however, the manner under which police conduct an investigation is very poor, and often, it leads to malicious prosecution of an innocent person. Therefore, the traditional procedure of investigating by police must be abandoned, and professionalism, transparency, and accountability must be introduced in the legal provisions.
Section 177 of CrPC is associated with the procedure of place of inquiry and trial, but in cases of rape where the statements of a victim are recorded under Section 164(5) of CrPC, where the victim is still a minor, there is no separate legal provision for the same, and there are chances that the minor who is still suffering from the trauma of rape, may turn hostile, or insecure about herself, leading to miscarriage of justice.
Although CrPC in its Section 26 contains the provision of trial in a court presided by a woman magistrate, as far as possible, which is based on the theory that a female is more comfortable in dictating the facts of the incident to another female, as compared to a man, but there is no provision for making the same compulsory, and in cases where a woman magistrate is not present, the trial begins before a male magistrate.
Section 167 of CrPC is associated with the procedure where if an investigation is not completed within twenty-four hours, the magistrate to whom the accused person is presented or conveyed about, may allow the detention of the accused under the custody for 15 days more, which may also lead to the violation of human rights of the accused in the police custody, and therefore, a provision regarding the magistrate asking the Investigation Officer (I.O.) as to why they couldn’t produce any evidence against the accused during an investigation must be introduced.
In cases where an investigation against a woman cannot be completed within 24 hours of arrest, the detention will be in a remand home or a recognized social institute, however, the remand homes are also not safe for women as women not only run away from remand homes leading to gang rape but women are also getting raped in the remand homes as well, and the same reflects a major loophole in the criminal procedural laws in India.
Section 198A of CrPC states that no court shall take the cognizance of an offence concerning a domestic matter, except when a police report of facts is filed which contains the complaint made by the relatives of the victim. This provision is bestowed to protect the interests of a woman and to safeguard her marriage. Section 498A of the Indian Penal Code, 1860 is the most significant legal provision here which prosecutes the husband and other family members of the husband when they practice cruelty on a woman. This procedural law has its drawbacks including, if the police fail to entertain the complaint of the victim of cruelty or her relatives, or if the police is found to be indulged in taking bribes from the accused or the family members of the accused.
The Immoral Traffic (Prevention) Act, 1956 is the primary law concerned with preventing prostitution and curbing human trafficking. The Act was initially named The Suppression of Immoral Traffic in Women and Girls Act 1956, in pursuance of India’s international commitment to ratifying the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (signed at New York on 9th May 1950).
The Act primarily prosecutes those who are indulged in commercial sex-work, and in its Section 2(f) defines prostitution as “sexual exploitation or abuse of persons for commercial purposes”, which is in itself is a vague definition while considering the voluntarily sex-work which is not a criminal offence in India.
It is the general view that prostitution is illegal in India but only a few of the sex-workers, and their customers know that voluntary sex-work is not illegal in India. Sex-work is conducted, or if the sex-work is being done as a result of any human trafficking, the same is a violation of provisions of ITPA.
The Criminal Law (Amendment) Act, 2013, not only focused on controlling the menace of rape, but also other sexual assaults like human trafficking, and prostitution. Section 370 of IPC is the most significant penal provision which imposes punitive measures on those who forcefully, abet, or by any means associated with exploitation, commits the offence of trafficking, and are punished with rigorous imprisonment of not less than seven years but may extend to ten years.
According to Statista, in 2020, over one thousand human trafficking cases were reported in India with over three thousand victims across the country, despite having such rigorous laws in IPC, and therefore the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill, 2021 must be enacted to prevent the further menace of trafficking in humans, and provide the victims of trafficking with rehabilitation.
What are the other areas which need a reformation in India
The Parliament of India is the supreme authority that enacts laws presented before it by different representatives. But to pass an ordinary bill, a simple majority of members present and voting is necessary. However the process of passing a bill is decades old, and therefore, it needs reforms in such a way that the workings of parliament can take place efficiently, and consume less time. On average, it takes 261 days for a parliamentary law to come into force, and the average time a bill remains pending before the parliament is even more, and this long process not only consumes time and resources but also the people keep falling victim to vague laws.
Law enforcement is considered one of the three pillars of a democracy, who’s primary job is to enforce law and order in the country. The police are not only responsible for enforcement of law and order in the country but also play a major role in every criminal case because only police have the authority to investigate, bring proof before the court, to arrest the accused, to ensure the protection of the victim, and other witnesses.
Police are included in the State List of Schedule 7 of the Constitution of India. It is the duty and responsibility of the police to protect and serve, however, the police are themselves involved in corruption, custodial deaths, rape, forced unnatural sex, torture, stuffing beer bottles and chilly powder in private parts, etc.
It is evident that police have been abusing the powers they have been granted by the procedural laws, and therefore, there is a need to amend these laws, which shall not only impose stringent punishment on police officers but also new laws which check the accountability of police must be enacted.
It is evident that in certain cases, the police are not able to meet the expected quality of investigation and trial owing to minimal education qualifications and training, and therefore, most of the time, police are not able to learn the practical and legal aspects of how an inquiry and investigation must be done. Police also lack proper infrastructure, and inadequate salary which leads to custodial torture, and poor quality of work.
The judicial process refers to the procedure undertaken by judges to deliver justice, which is further divided into two i.e:
The prosecution brings home the guilt of an accused in the court of law in criminal cases, the public prosecutor usually advises police to frame all the charges possible against the accused, so that the accused may not be able to get away from wrongful act he/she has done, however, it is important to note that this practice not only consumes the precious time of the court but also it is a burden on the already overburdened Indian judiciary.
The current scenario is that even the public prosecutors are not doing their job with sincerity and are involved in bribery. Recently a Special Public Prosecutor was caught red-handed while accepting a bribe from a police officer in Orissa to settle a vigilance case registered against him.
The defense usually plays dirty tricks to give the benefit of doubt to its client, and therefore, many times, the actual perpetrators get away from the punishment they should get. It shall be the duty of every officer of the court, to not undertake such practices which lead to a person getting away from criminal liability. The reforms are needed to prevent the false statements of the defense and the prosecution made to win their cases.
Courts are the most burdened in contemporary times, and therefore, the training of judicial officers must also be reformed so that they can operate their respective courts with less time and high efficiency, and therefore reform is needed in the training of judicial officers, with special emphasis on criminology.
According to an article, around 56,69,960 cases are pending before all the High Courts in India, and around 65,331 cases are pending before the Supreme Court of India in the year 2021.
The correctional institutes are the last and most important part of the criminal justice system. When an accused is sent to prison, as an undertrial prisoner or a convicted prisoner, the main idea behind putting such a person to prison is not to punish the person in case he/she is an undertrial prisoner, or convicted for the first time, because there is still a scope left for rehabilitation.
The correctional institutes, in most of the cases, prisoners, and in cases of juvenile convicts, a rehabilitation home, where the accused is kept. The authorities present in such institutes play the most vital role in safeguarding the rights and interests of the convict, because, in case the convict is kept with a history-sheeter, or hardcore criminal, the chances of such person being rehabilitated or corrected are almost nil.
The prisons in India are not detention centers but they are correctional institutes that aim at rehabilitating the offenders of crimes, however, the practical aspect is that prisons in India lack proper infrastructure, where prisoners face sexual abuse, violence, torture, and extortion by other prisoners and the jail staff.
According to the data of the National Crimes Record Bureau, in the year 2019, there are 1,44,125 convicts, 3,30,487 undertrial inmates, and 3,223 detenues in various jails across the country. There is an availability of 4,03,739 inmates in total in all jails in India, however, the number of inmates is 4,78,600, as of 2019, which reflects the overburden of inmates in prisons in India.
Overcrowding, unhealthy living conditions, unequal treatment of prisoners in prison, low budget for maintaining health care, deficiency of legal assistance, custodial torture, and rape, are the most concerning parts when prisons in India are considered, and therefore, new reforms to check the functioning of jail authorities, and prisoners must be adopted.
Suggested by the Ministry of Home Affairs in the year 2013, to use provisions of certain provisions of Code of Criminal Procedure, 1973 like the use of Section 436A of Code of Criminal Procedure, 1973, under which a prisoner during the investigation, inquiry, or trial, undergoes detention which exceeds one-half of the maximum period of imprisonment for which he is being tried, except for offences where punishment is death, such person shall be released by the court on his bond.
There is an urgent need to amend and reform the procedural laws of the Indian criminal system, especially those vague provisions, which are not only slowing down the process but also ceases the efficiency of the system.
The laws which are not needed anymore, or are of no relevance must be repealed, and the laws under the Code of Criminal Procedure, 1973 must be made foolproof, and efficient, and amend laws which make the criminal process lengthy, slow, and ineffective because when justice is not delivered on time, due to the fallen criminal justice system of India, the victims are indirectly denied of justice.
If the new criminal laws are enforced without any direction, it will only make the current scenario worse, by merely imposing heavy punishments on the perpetrators, and therefore, if the MHA intends to bring a reform in the system, there must also be awareness campaigns, and rehabilitation of first time convicted prisoners, instead of only detaining, and punishing them.
It is important to know what are the intentions and contents of the new criminal justice system reforms, concerning the statement made by the Union Home Minister Amit Shah. Apart from the straight intention to amend penal laws, and provisional laws driving the criminal justice system in India, it is significant that such amendments are made with a proper direction, and intention to reform the system.
However, the approach of the MHA must be cautious, or else the same shall attract vagueness of the laws which has always been a primary matter of concern in the criminal justice system.
The laws must be advanced and must be well empowered to tackle modern times crimes, including cybercrimes. Apart from the advancement of the laws, the criminal justice system of India is lacking a better approach towards penology, criminology, and victimology.
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