The government, by introducing in the Lok Sabha three penal Bills which is says “aim to decolonise the Indian justice system,” has rightly exercised its prerogative. Earlier governments dithered over this move for years. However, in matters of law-making and reform, mere initiative may not be sufficient.
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In this case, we need to particularly focus on three points. The first is that penal law-making and reform are serious issues which require deep deliberation and empirical validation. Second, we must keep in mind the diversity of considerations of substantive and procedural laws, and engage with the two sets separately. Substantive laws govern how people behave; they define criminal offences and specify punishment, whereas procedural laws are aimed at enforcement agencies that are to provide safeguards and due process even to the “worst” offenders. Third, we need to realise that penal laws are an instrument for actualising and propagating a wide variety of interests as per the constitutional vision and the dominant ideology. Which interests need protection and priority is a matter of democratic process. In view of these issues, let us analyse the Bharatiya Nyaya Sanhita Bill.
Participation from the people
The colonial penal law had to be replaced not because it was inherently flawed, but because it lacked participation from the very people for whom it was meant. There is an imposition of foreign ideas and values. Therefore, a wide and diverse debate that includes the participation of the ‘governed’ should be integral to this exercise. Thomas Babington Macaulay had said in the House of Commons in 1833 that the basis of a uniform code of laws for India should be “uniformity when you can have it, diversity where you must have it, but in all cases certainty.” The ensuing penal law should be aimed at achieving the target of equal and uniform application and should be structured in precise terms to impart maximum certainty.
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The idea of according justice or nyaya may be the ultimate end, but every kind of criminalisation means encroachment on liberties and decimation of freedoms. This task requires empirically analysing the shifts in the perceptions of those types of behaviour that are considered undesirable or otherwise. We have recently witnessed such a shift in respect to attempted suicide, which, from an offence under Section 309 of the Indian Penal Code, is on the way to becoming a mental problem under Section 115(1) of the Mental Health Care Act, 2017. Likewise, in Joseph Shine v. Union of India, the Supreme Court struck down Section 497 (offence of adultery). Therefore, there is a need to conduct a wide-ranging social audit of what constitutes “undesirable” behaviour. Steven Box wrote in Power, Crime and Mystification, “For too long too many of us have been socialised to see crime and criminals through the eyes of the state.” While not everyone will agree with this, it underscores the value of an independent and impartial body taking up the task of social audit of what is undesirable behaviour.
Though there is an attempt to impart brevity, the tendency of retaining and adding new offences tends to offset the advantages. After the Indian Penal Code, many special penal laws have been enacted to deal with new and emerging crimes, which could be kept out of the Bharatiya Nyaya Sanhita. Furthermore, serious crimes such as organised crime and terrorism could be located in existing special laws, or a new composite law, as suggested by the Malimath Committee, could handle them.
Women and children
It is in consonance with the constitutional vision enshrined in Article 15(3) (special provision for women and children) and Article 51A(e) (renounce practices derogatory to the dignity of women) that ‘Offences Against Women and Children’ has been accorded first place in the category of offences in Chapter V of the Bill. But we get a rude shock when we realise that in the proposed offence of rape under Clause 63, sexual intercourse between a man and his wife, if the wife is above 18, is not rape. India still seems to be guided by the colonial mindset that is reflected in Clause 359 of the Draft Penal Code, 1837, which reads: “Sexual intercourse by a man with his own wife is in no case rape.” Likewise, retaining Clauses 20 and 21 in Chapter III (General Exceptions) that relate to criminal liability in a general penal law militates against the philosophy of special law for children that is explicitly laid down in Section 1(4) of the Juvenile Justice Act of 2015: “Notwithstanding anything contained in any other law for the time being in force, the provisions of this Act shall apply to all matters concerning children in need of care and protection and children in conflict with law.”
The proposed penal law has certain decisive departures from the colonial chapter scheme that tried to arrange offences as per the priority of interests of the ruling class and pushed the interests of body and property below the offences against the state and other supportive institutions. But the Bill has accorded precedence to bodily interests by placing them in Chapter VI, just before offences against the state.
Is it possible to draw some inferences from such a shift? The acid test would lie in the responses to the following inquiries: First, will the reforms fulfil the constitutional vision enshrined in Article 13(2) (prohibition on laws against fundamental rights)? Second, will the law uphold the principles of autonomy and equality? Third, will it further the fraternity guaranteed by the Preamble?