The Bar Reacts To New Bills Introduced In Parliament To Revamp Criminal Laws
Three new legislations were introduced in the Lok Sabha yesterday for replacing the existing Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act. The Indian Penal Code, 1860 will be replaced by Bharatiya Nyaya Sanhita, 2023 while the Criminal Procedure Code, 1898 will be replaced by the Bhartiya Nagarik Suraksha Sanhita, 2023 and the Indian Evidence Act, 1872 will be replaced by the Bharatiya Sakshya, 2023. (read bills)
Union Home Minister Amit Shah introduced the three new bills and remarked that these new laws will be to protect all the rights given to Indian citizens by the Constitution, and, their purpose will not be to punish, but give justice. He said that the old laws, drafted and enacted under British rule were opposed to justice and created to punish, not protect. The earlier laws, according to the Home Minister were a sign of slavery.
While, according to the government, the new proposed legislations are formulated for the welfare of the citizens and serve them justice in a real sense, with an intent to overhaul the colonial laws. However, not everyone is convinced about the complete overhaul and the nomenclature and content of the proposed laws.
Here is what prominent members of the Bar have to say about the three proposed legislations:
"No More Colonial Hangover" - Senior Advocate Vivek Sood
Senior Advocate Vivek Sood said, "The bills will revolutionalise the Indian Criminal Justice System which was based on colonial laws. Now we have an Indianised criminal justice system and this should have happened in 1950, but we adopted the British Laws. This is a watershed movement."
He welcomed the bills saying that they take care of the peculiarities of the Indian society. He said, "We are finally moving out of the colonial hangover".
Talking about the names given to the legislations, he said "We live in India, right? Why not have Hindi names? We are so intoxicated by the colonial past. They are Indian names, based on Hindi, the vernacular language".
"Wholly Unnecessary" - Senior Advocate Arvind Dattar
Senior Advocate Arvind Dattar said, "According to me, it is wholly unnecessary to replace the IPC, CRPC and the Evidence Act. The IPC and the Evidence Act have stood the test of time. There is no evidence or indication that they are not working or that they are not suitable to the present time. They are working absolutely fine. If you want to amend the IPC, you can add a chapter, you can add a section. Why replace the whole IPC?"
He said that the CrPC has worked since 1973, for 50 years. "Now if you replace the whole Act, it is a huge cost to everybody to again relearn the new sections, the new provisions, it makes no sense", he added.
He said that when it comes to criminal laws the problem is with implementation and not the laws. "Suppose you replace IPC, CRPC and the Evidence Act, are you going to hasten the trial process? Are you going to reduce the number of undertrials being locked up in jail for so many years? So, the main problem is not the law. The main problem is always how the criminal justice system is working. Lack of adequate number of judges, the bail petitions are not coming up for days and months in several Courts. That is the main problem. So, this is totally unnecessary", the Senior Advocate said.
Arvind Dattar also objected to the Hindi titles of the proposed statutes. "When you make a law, why are you putting Hindi titles to it", he asked, adding that people in Tamil Nadu, Karnataka, Telangana etc. will find it difficult to understand. "You can put an English title, it is an all-India statute", he said.
"It's A Positive Move"- Senior Advocate Sidharth Luthra
"It’s an effort in reorganizing the laws and to bring in principles which have been laid down by the courts over the last two decades. It’s a positive move", Luthra said.
Sidharth Luthra termed the introduction of corruption, anti-terrorism and organized crime into the code 'interesting' and said, "I think there is an effort put them in a comprehensive and more organized fashion and that is appreciated".
"However, in some areas, the colonial legacy has not entirely been shed", he added.
He cautioned that when things like terrorism are brought into the Penal Code, many things in the Unlawful Activities (Prevention) Act and the Prevention of Corruption Act will have to be re-examined. "You know those terrorism laws in the UAPA have reverse burden. That is not the case in the new Penal Code. So these are things which will have to be scrutinized by the standing committee very carefully", he said.
On removal of the existing provision relating to unnatural offences (Section 377), he said, "Section 377 has gone, but the new definition equivalent to rape, the earlier Section 375, will be a comprehensive definition and will cover everything".
Hindi Titles Unconstitutional- Senior Advocate Mohan Katarki
While objecting to the Hindi title of the three Bills, Mohan Katarki said, "The titles of the Bills in English version are in Hindi. This is unprecedented and clearly against Article 343 and Article 348 of the Constitution. What happens if the States start proposing amendments and naming the Acts in regional language since all three Bills are part of the concurrent list?"
He said that the idea of reforming the three laws by addition, deletion or redefining is long overdue. "However, the proposal in three Bills is to completely replace the age-old laws which have been interpreted for more than a hundred years by the Courts is not a well-thought plan. These new Bills will only promote litigation, adding to the existing load of litigation", he said.
Referring to Section 23 of the Bill to replace the IPC, which deals with an act of a person incapable of judgment by reason of intoxication caused against his will, the Senior Advocate said, "What is the purpose of replacing the word “provided that” in Section 85 of the IPC by the word “unless” in Clause 23 of the Bill. This tinkering with language has given rise to a fierce debate that voluntary intoxication is a defence against criminal liability".
He said that with the provision replacing the law on sedition, the law has become more stringent, negating free speech. "Clause 150 of the bill is loosely defined and it completely negates the constitutional guarantees of free speech", he said.
"Need Of The Hour" - Dr. Aruna Shyam, Senior Advocate
The Former Additional Advocate General to the State of Karnataka called the new legislations the "need of the hour". He said, "People were under the colonial state of mind and the colonial laws were prevailing over our country. These old laws are outdated laws. For the present generation or the technology and the social change we are experiencing, these laws may not be sufficient. There were many flaws or loopholes in the existing or earlier system. It definitely will cure all these defects and it will help overcome the hurdles faced by the advocates' fraternity as well.
On the Hindi titles of the proposed laws, he said "The very title itself gives confidence in the minds of the people of India or Bharat, that we are having our own legal system in place. This is the object of the title given to these three legislations".
He also said that the new penal code takes care of some new offences that were not in existence when the old code was drafted.
"Names Could Have Been Retained"- Senior Advocate V Chitambaresh, Former Judge
The former Judge of the Kerala High Court said that a lot of people, including South Indians, will find it difficult to identify the statutes with the new names. "South Indians will find it difficult to comprehend. The names could have been retained. These changes could have been made", he said.
With respect to the changes in the law, he said that it is a welcome move by the government and that speedier justice appears to be the aim of the government. "Such amendments were long overdue", he said.
"Bold Departure From Colonial Legacy"- Senior Advocate K. Ramakumar
One of the senior-most lawyers of Kerala High Court, Senior Counsel Ramakumar said, "The new laws are a bold departure from colonial legacy and will revamp the Indian Penal Code consistent with Indian ethos and traditions. It also provides the needed clarity to some of the important provisions".
Changes Being Welcomed By Lawyers- Dr. Adish C. Aggarwala, SCBA President
The President of the Supreme Court Bar Association (SCBA) said that he is very positive about the new development and that it is a good step initiated by the government. He said that people are frustrated by delays in our judicial proceedings. "The judges have been made also responsible. They have to pronounce judgment within a specific time. Earlier, after arguments, Judges were reserving judgment and retiring without delivering the judgment", he said, adding that the litigants had to bear the expense of engaging lawyers, etc.
He said that proposed changes will reduce crimes once people know that they will be convicted within a very short span of time. He said that under the proposed system, prisoners will have lesser freedom. "This is a step in the right direction. This is a drastic amendment which is being welcomed by lawyers and by the general public. But still, some more amendments are required, which we will be pointing out to the Parliamentary Select Committee", the SCBA President said.
He said that he will approach the Parliamentary Select Committee and "we are hopeful those other suggestions also will be accepted by the government".
On removal of the provision relating to unnatural offences from the proposed penal code, he said, "Well, I don't welcome that. We want it to continue. Little decorum in our society should remain".
Much Needed Overhauling Of Colonial Laws- Senior Advocate Sanjiv Sen
"The much-needed step of overhauling of these colonial laws was long overdue, to correspond and align with the reality of today", the Senior Counsel said. He said that the majority of the pending cases which are clogging the legal system today are criminal cases. "It is hoped that these amendments will bring respite to a much overburdened legal system", he added.
"Will Help In Speedy Justice"- Sangita Pradhan, DSG, Sikkim High Court
The Deputy Solicitor General of India at the Sikkim High Court said that the bill proposes 313 amendments. She said that the existing criminal laws are too old and that they were enacted "as per the requirements of those times and also as per the requirement of the British government" and hence need to change.
On the Hindi titles she said, "India being Bharat/ Hindustan, if the names of the criminal laws will be in 'Bharatiya' terms, the Society shall appreciate the ideas of the proposed amendments".
She said that the new bills are aimed at simplifying complex procedures of the existing criminal laws and will help in speedy justice to the litigants.
"It will result in having faith in law by a common man in the society. Justice delayed is justice denied. Sometimes, justice has no value if it is delayed. Therefore, from the proposed amendments, speedy justice is expected", the DSG said.
Mixed Bag For Enforcements Authorities, Courts & Advocates- AoR Siddharth Sangal
The Advocate on Record (AoR) in the Supreme Court, who is also the Standing Counsel for the State of Uttarakhand said that the overhaul of the criminal justice laws will be a mixed bag for the enforcements authorities, Courts and Advocates alike.
"It will take time to get a hang of it, but surely past experience will help. No doubt, these laws have lived their life and considering today’s time, especially the technological crimes, modernisation and way of life and societal requirements, even the criminal laws have to answer these dynamic times, hence the overhaul", he said.
He added, "One of the striking features of these bills appears to be speedy trial/justice and coverage of terrorism and organised crime etc. Certainly, the provisions on fingertips like 420, 302 etc. would change and new sections would kick in. But isn’t change the only constant in a society like ours!"