July 7, 2020 3:49:18 am
The setting up of a five-member expert committee by the Union Ministry of Home Affairs to overhaul criminal laws in the country is a welcome step that is long overdue. The Indian Penal Code and its corollary laws, the Indian Evidence Act and the Code of Criminal Procedure, were all first enacted in the late 19th-century and, despite proposals and suggestions in the past, have not undergone comprehensive revision.
The Indian Penal Code, the legislation that an ordinary citizen arguably interacts with the most, and which governs his relationship with the state, is still rooted in colonial ideas. Although some changes have been made through amendments and judicial pronouncements, the laws do not reflect the aspirations of a Constitution that gives primacy to liberty and equality. While it took 158 years for the courts to decriminalise homosexuality and adultery — provisions in the IPC that echoed Victorian morality — many others that still remain in the books do not recognise individual agency. This is especially true for women. “Enticing” of a married woman who is “in the care of” a man is an offence that carries a jail term of up to two years, for instance. Too many laws protect and promote patriarchal attitudes within a constitutional framework that promises equality. Sedition, punishable with imprisonment for life, is another colonial spirited law misused by the state against its citizens — and another provision that needs revisiting. Even as new crimes need to be defined and addressed, especially concerning technology and sexual offences, it is important to not give in to populist demands and run the risk of excessive policing and over-criminalising — when dealing with demands for safety, governments often take refuge in stricter laws and harsher punishments. As a renewed debate on the death penalty continues both within and outside judicial circles, the harshest punishment needs a legislative approach which is not just passing the buck to the judiciary. 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.
While the committee debates the idea of criminal justice and what the gamut of laws really achieves, it also needs to place various stakeholders at the heart of this change. If the victim is often on the margins of the justice process, the accused is burdened with institutional delays. Accountability, above all, must guide the balance between the rights of the citizen and imperatives of state.
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