A discussion is needed as to what kind of provisions are required in the present day criminal law

The first CRPC of 1898 was repealed with the passage of the 1973 Act

Useful developments in modern criminology, criminal jurisprudence and penal science should be incorporated in the new law.

- Opinion - P. Chidambaram

The Indian Penal Code, 1860, The Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 are the three parts of the criminal law. The IPC was created by Thomas Babington McCulley, who was the chairman of the first Law Commission. The Evidence Act was formulated by Sir James Fitzjames Stephen. The first CRPC of 1898 was repealed with the passage of the 1973 Act.

In hundreds of courts across the country, these three provisions of the law are being applied daily. Thousands of judges and as many as one and a half million lawyers (most of whom fight criminal cases) go through the brainstorming of these three laws every day. Every judge and lawyer knows that Section 302 of IPC provides punishment for murder. He is also aware that the confession made by the accused before the police officer cannot be considered as evidence under Section 25 of the Evidence Act. They also know that the provisions of anticipatory bail and bail are covered in Sections 437, 438 and 439 of CrPC. There are several provisions of these three laws which judges and lawyers are well aware of.

The opportunity for reform was lost

Amendments to the law are a good thing. Amending the law does not mean reordering or reorganizing the existing provisions. There needs to be a broad discussion about what type of criminal law is needed in the current circumstances and times. Changes in values, ethics and ambitions require amendments in laws. Useful developments in modern criminology, criminal jurisprudence and penal science should be incorporated in the new law.

Rearrangement of Provisions

But what are we seeing in the three bills? Many jurists have studied these three bills in depth. In the new draft, 90-95 percent of the provisions of the IPC are covered as they are. Out of 26 chapters of IPC, 18 chapters (three chapters each have one provision) have been copied in the new bill. The Standing Committee's report admitted that in the draft, out of 511 sections of the IPC, 24 were deleted and 22 were added but the rest of the sections were retained with new order and arrangement. Some changes could easily have been made through amendments to the IPC.

Similar situation is seen in CRPC and Evidence Act. While every one of the 170 provisions of the Evidence Act has been retained, 95 per cent of the provisions of the CrPC have also been cut and pasted. The whole effort has proved to be an exercise in failure. If these bills are passed, there will be many unintended consequences. Not only this, thousands of judges, lawyers, police officers, law teachers and students and general public will face inconvenience. He has to learn the laws again.

Coming to the contents of the Sadar Bill, it has some welcome features which the government will highlight in Parliament. However, I would like to draw attention to some questionable peculiarities. Which is as follows:

Degressive Provisions

While the whole world is clamoring for the abolition of the death penalty, we have retained it. In the last 6 years, the Supreme Court has upheld the death sentence in only seven cases. A more severe punishment is imprisonment without parole for the life of the offender.

Adultery is rewritten as a criminal activity. Adultery is a mutual affair between husband and wife. If the relationship between them deteriorates, the spouse who has been wronged can knock on the door of the court for damages or divorce. The government has no right to interfere in their lives. Section 497 of the IPC, which was struck down by the Supreme Court, has been brought back to apply to both men and women.

The executive's power to impose life imprisonment or death sentence without recording reasons is violative of Article 14 of the Constitution. Solitary confinement is cruel and unusual punishment. Banning the media from reporting certain types of cases is unconstitutional. Terrorist activities are well dealt with under the Unlawful Activities (Detention) Act, so there is no need to cover them under the new law.

The proposal to abolish the post of Assistant Sessions Judge is wrong because, it will burden the Sessions Judge and the first appeal will start coming to the High Court resulting in an increase in the burden of the High Court.

Provision should be made for handcuffing the arrested person only if he is violent or likely to escape. The Magistrate before whom the arrested person is produced for remand must be satisfied with the reason behind the arrest. Section 254 allowing the testimony of the Investigating Officer through audio-visual mode amounts to violation of the principle of due process of law in the court of public. Since the new bill says bail is the rule and jail is the exception, it fails to clarify the norm. Consequently Article 482 is regressive.

By covering most of the provisions of the existing laws in the new bill, the government has thrown cold water on its exercise.