Lord Thomas Babington Macaulay, the British historian and jurist, known for having drawn and codified Indian Penal Code way back in 1860 that was approved by the Legislative Council, once observed about man’s character. He said: The measure of a man’s real character is what he would do if he knew he would never be found out. He also firmly believed that the highest proof of virtue is to possess boundless power without abusing it. Macaulay’s name is ringing in ears again as the Centre has presented in Parliament  India’s new Justice Code Bill with the short title ‘Bharatiya Nyaya Sanhita Bill, 2023’ intended to replace the 163 year-old Indian  Penal Code mooted and crafted by Macaulay. The Bill tabled on August 11 has now been referred to the Parliamentary Standing Committee for section-wise deliberation and recommendations.

The end of Azadi ka Amrit Mahotsav and the dawn of Amrit Kaal marking the beginning of the journey from 75 to 100 years of Independence, is wished to shower flowers of the spring of life and the fruits of autumn and set to give us opportunities to imbibe the Indian soul focusing on justice. It is said that the soul of the new legislation would be to give justice and to protect all rights of the citizens given by the Constitution. The thrust of the legislation is accordingly to give justice and not merely to punish, and to punish for creating a sense of crime prevention.

Old wine in new bottle

A modern criminal law is based on the fundamental belief that humans are morally responsible, and not harm-causing agents. A penal law jurisprudentially has to embody rule articulation, liability assignment and grading functions in a balanced manner. A bare scanning of the Nyaya Sanhita Bill shows that all are not new. The Bill envisages 356 sections as against 511 sections found in Macaulay’s Penal Code.  Out of 356 sections in the Bill, 175 are amended sections and 8 are new additions. 22 sections have been repealed. The Bill on being closely analysed would show that almost 80% of the provisions contained in the Macaulay’s Penal Code have been retained. Therefore, it is not a new law, but old wine in new bottle with some modifications expected to suit the perceived needs of the time.

Women, children at the centre

Under the British drafted, crafted and voted penal law in existence, offences against women and children were viewed lightly and were not treated as heinous crimes. At the same time, offences like treason, robbery and attack on government officials were reckoned as serious and accorded stringent punitive measures. Some of the offences were prescribed only to meet the colonial requirements and to suppress the legitimate expressions of the ‘sons of the soil’. This archaic and colonial approach is said to be changed through the proposed law. The new code is catalogued in such a manner that it gives precedence to crimes against women and children and placed even before offences against the State. This line of legislative thinking is perhaps in tune with the constitutional dream of envisaging special accommodation and treatment for women and children in law-making.

Differently from Maucaulay’s approach, a new offence has been defined in section 69 of the new Bill that deals with sex with a woman by deceitful means or on the pretext of false promise of marriage, employment, promotion, inducement or marriage after suppressing identity. For the offence of rape on a woman under 16 years, rigorous imprisonment for 20 years and extending up to life imprisonment has been prescribed. If the victim is under 12 years, punishment prescribed is either life imprisonment or death. In all cases of gang rape, 20 years of imprisonment or life imprisonment has been prescribed. For mob lynching and for committing offence of gang rape against girls below 18 years, death penalty has also been added. Punishment has been increased for a person committing crime on children, with increase in the fine amount also. The offence of snatching is newly created.

The much-publicised merit of the proposed law is stated to be the removal of the offence of sedition. However, it has re-appeared in another form under section 150  of the new Bill which envisages stringent provision for exciting or attempt to excite secession, armed rebellion, subversive activities; encouraging feelings of separatism, endangering the sovereignty, unity and integrity of India. Such conduct is punishable with imprisonment ranging from 7 years to life imprisonment.

Financial transactions and electronic communication connected to such misdemeanours have also been brought within the ambit of the new offence and can be viewed as subversive activity or endangering the sovereignty, unity and integrity of the country. But it should be ensured that this provision is not invoked for political ends. The only guarantee now available against its misuse is that section uses the words ‘purposely or knowingly’ thereby requiring criminal intent for holding a person guilty of the offence.

Missing elements

Change in penal and sentencing policy of the country with the object of improving law and order, simplifying the criminal justice process, achieving speedy justice and ease of life are desirable. But in the quest for hurried justice, real justice cannot be buried. Search for the integrity of evidence for higher conviction and speedy disposal shall not deny justice to the accused.

You can’t just say at this moment that colonial penal code is outdated and unsuited, after being its beneficiaries over decades. It must not be forgotten that it is part of history, relic of the past and has stayed with us successfully modulating the human behaviour for 163 years, with certain modifications brought through amendments to meet the growing needs and changing perceptions of criminality. It has lived for long because it is strong and possesses the spirit of law. Edward Livingston’s Louisiana Code and the Napoleonic Code have not become completely obsolete and redundant even today.

The new Bill does not sufficiently address crimes in the virtual arena, new fraud offences, obtaining services fraudulently and so on. The approach that the new Bill takes for preventing white-collar crimes and transnational crimes is not satisfactory. Even while the new Bill places women at the centre, marital rape is not seen defined as an offence against women.

Why new law, not Amendments?

This may appear to be purely a legislative question. It is the look out of the Government and the Parliament to decide whether changes should be introduced through a new legislation or through Amendments. Even courts cannot tread into this arena as it is part of the legislative function. But when the changes brought in through the new Bill are not massive or large-scale and when it retains about 80% of the existing provisions, is there any honest necessity for a new legislation, instead of amending the existing law. Is the new exercise therefore an eye-wash, is the emerging question awaiting a clear answer. Changing the name of the legislation for embracing the Indian soul may be a legislative and policy design, but not an inevitable necessity. The title of the Code remained intact for the past 163 years. Change of title could be brought through an Amendment as well.

Law-making is a delicate constitutional function and guided exercise of power performed by the sovereign Parliament with constitutional responsibility and accountability to the people. Every law must be an eye-opener, not an eye-wash. Changes are necessary. But, it should be justified on principles of legislative necessity, expediency, propriety and democratic-due-process. It is true that Legislature is the best judge to determine the exigencies of the time and the needs of the country and of its people.

Law-making cannot be exercised in accordance with mob-liking. Victorian morality cannot fix the standards for reprehensible criminal conduct. If the object of the new legislation is to replace the old British laws which were full of signs of  slavery and exploitation as now identified, why was it adopted and allowed to prevail for such long 73 years of coming into force of our Constitution and why was the making of the new law delayed.

Constitution of India expressly abolishes untouchability and its practice in any form through Article 17. Exploitation of human beings is also attempted to be harnessed through Articles 23 and 24 and other sister provisions. A law in existence in the country said to be full of signs of exploitation is definitely not in consonance with the constitutional values and should not continue for long. It is our determination that slavery should disappear like an unpleasant night dream and trafficking and exploitation of human beings is put to an end. When State owes the primary responsibility to end slavery and exploitation, Parliament and Government as organs of the State should rope in to cure the glaring unconstitutionality. Is it not an admission of the failure of the successive governmental regimes to set right the constitutional wrong?

Connecting to new era

Rapid advancement of technology has introduced new dimensions to crime, evidence and investigation.  In the new era of digital revolution, laws must envisage state-of the-art technologies. It is almost true that people are losing faith in criminal justice system and are even afraid of setting the criminal law in motion. Hence, changes are necessary to simplify criminal justice process and to achieve ease of life. But, it should be brought in a principled, effective and balanced manner inspiring the faith and trust of the people and winning their hearts.

The new Bill has brought acts of terrorism, organised crimes, corruption, mob lynching, trafficking of person, etc. within the spectrum of the Justice Code. Prescription of community service as a new form of punishment as per section 4(f) for defamation and  petty offences and summary trials for offences involving punishment up to 3 years are positive steps for infusing new hope for the sentencing judge. It would lessen the workload of the courts as well.

Building Great India

The Indian Penal Code, a colonial law, survived for long and withstood the test of time only on account of its fair accuracy. Sir James Stephen mentions about the qualities of a strong law. He remarks: “It is not enough to attain a degree of precision which a person reading in good faith can understand. It is necessary to attain a degree of precision which a person reading in bad faith cannot misunderstand”.

The archaic language and concepts found in British laws, not in tune with current social norms and values and which are the vestiges of colonialism have to be wiped out. The emergence of new forms of wrongs in cyber space warrants refinement of the existing law by properly defining such wrongs. Economic success is crucial for inclusive growth and national development. This makes us to have a relook at economic offences by meticulously defining and cataloguing them in the penal law.

As a civilised society upholding democracy, rule of law and human rights, State owes a duty to protect life, security and property of her citizens. This is achieved through the instrumentality of criminal law. The mandate of the criminal law is to punish the wrongdoers and prevent recurrence of crime.

Be a fruitful mirror

Criminal law has to be sensitive to changes in social structure and social philosophy. It has to be a reflection of contemporary social consciousness and a fruitful mirror of a civilisation underlining the fundamental values on which it rests. But the means adopted for achieving the object must be equally justifiable, convincing and promoting the greatest happiness of the greatest number, the true measure of right and wrong.

Let us not forget that Independence was a battle for the soul of the nation suppressed for long and it found ‘utterance’ with Independence. As warned by Mahatma Gandhi, retributive justice centred on “eye for an eye” principle, can make the whole world blind. Thus, there is also a need to treat wrongdoers as patients whose criminality or delinquency is healed through therapeutic and reformative approaches. Equally, penology must embrace the saga of victimology providing measures to compensate and rehabilitate the victims of crime, particularly in respect of offences against women and children. That can be ensured only though a profound, just and humane Nyaya Sanhita.

(Dr. Pauly Mathew Muricken is a prominent Lawyer, an acclaimed writer and a distinguished academician based in Kochi)