relook-the-law

Context: The Ministry of Home affairs has constituted a 5 member committee headed by Dr. Ranbir Singh for reforming the provisions of Indian Penal Code and other procedural laws.

Background:

  • The Indian Penal Code(IPC) and Indian Evidence Act were enacted by the Imperial Legislative Council in 1860 and 1872 respectively. Since then they have not evolved at a similar pace as the society on which they are applicable.
  • The changes to IPC and CrPC (Criminal Procedure Code) had been first recommended by the 2003 Malimath Committee.
  • There is also a draft national policy on criminal justice drawn up by the N R Madhava Menon committee.
  • Some changes have been made through amendments and judicial pronouncements like the recent Decriminalisation of Homosexuality under Section 377 of IPC (Naz Foundation Case) and Adultery under Section 497 of IPC (Joseph Shine Case).
  • But the laws do not adequately portray the aspirations of a Constitution that gives primacy to liberty and equality.

Aspects which Committee needs to deal -

  • Scrapping of Laws that promote and protect patriarchy: like under Section 498 of IPC, “Enticing” of a married woman who is “in the care of” a man is an offence.
  • Colonial Hangovers: Sedition also requires a relook as this offence is currently punishable with imprisonment for life and is often misused by the state to curb freedom of speech and expression in spite of guidelines given by court in Kedarnath Singh Case.
  • The issue of Criminalisation of Marital Rape is long demanded as non consensual sex can’t be allowed in a modern state. 
    • In 2017, the SC in a landmark ruling (Independent Thought V. Union of India) had said that although marital rape is not a criminal offence, sexual intercourse of a man with his minor wife will be considered rape.
  • Further, there is a need to view Sexual offenses from the lens of Gender Neutrality and not solely from a female perspective. 
    • Under Section 375 of IPC which deals with Rape, only a woman can file a case of rape against a man. 
  • A cautious thought over the Death Penalty needs to be taken as majority of developed countries have abolished or are the path of abolishing it. In India also, it is to be given in rarest of rare cases as per the Bachan Singh Judgement.
  • Minimum age to commit an offence also needs a relook as Juvenile law was recently amended to treat a child above 16 years as an adult if he conducts a heinous crime.
  • Passive Euthanasia is already allowed in India after Common Cause Case of 2018 but the committe needs to examine whether active euthanasia should also be given a go ahead or not.
  • With growing sexual and reproductive rights of women can the offence of miscarriage can be decriminalised.
  • Subjects new to the legal landscape in India such as corporate homicide must also be thought of. 
    • In the United Kingdom, a law was enacted in 2007 to criminalise activities of a corporation, including employers, if such activities lead to the death of any person.
  • Further can additional types of punishment — based on objectives of deterrence, rehabilitation, restoration etc — be inserted” in the Indian Penal Code.
  • On procedural aspects of criminal law, there is a need to harmonise the statute books with court rulings. 
    • Despite “landmark rulings” reading down provisions and inserting safeguards through guidelines, processes of the state are often weaponised against citizens. 
    • From raids to arrests and the holding of accused in state custody — criminal law needs to be updated to meet the demands of the democratic temper of the 21st-century. 
  • There is a need to revamp laws owing to the digital advancement in the country and growing importance of privacy but the same shouldn’t lead to excessive policing and over criminalisation.

Criticism of the Committee:

  • Time of formation: Formulation amid the pandemic might impair discussions with experts and stakeholders residing in hinterlands. The isolation might not allow comprehensive and inclusive discussion.
  • Nature of Committee: The lack of diversity in what is an all-male, Delhi-based committee has also been adversely commented upon. 
  • Methodology: It is based on questionnaires and reflects a predetermination on what is to be amended. 
    • The process of consultation is more like a referendum on the amendments predetermined by the committee members, rather than an open-ended discussion to determine the reform priorities of Independent India.
  • Deviation from the Precedent: Earlier the law commission was given the responsibility of suggesting reforms but it is difficult to explain why this time the responsibility is given in the hands of a university. 

Conclusion:

  • The committee must look at overhauling the justice system keeping in mind the rights of victims and the adequate quantum of punishment which must be bestowed to the accused along with curbing the tyranny of state on its citizens. 
  • Accountability, above all, must guide the balance between the rights of the citizen and imperatives of state.
  • If at all criminal law is to be reformed, there should be a genuine attempt to reach a wide consensus on ways to speed up trials, protect witnesses, address the travails of victims, improve investigative mechanisms and, most importantly, eliminate torture.

Source:

https://indianexpress.com/article/opinion/editorials/revise-the-law-6493221/

https://indianexpress.com/article/india/criminal-law-overhaul-marital-rape-sedition-amit-shah-6490636/

https://www.thehindu.com/opinion/editorial/reform-with-caution-the-hindu-editorial-on-criminal-laws-reform/article32046103.ece?homepage=true

https://indianexpress.com/article/opinion/columns/national-law-university-delhi-committee-for-reforms-in-criminal-law-6502591/

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