June 22, 2021
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Is Criminal Law A Lost Cause In India?

We have come to the same junction and it is high time that we realise the importance of codification, revisit our laws and reform them.

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Is Criminal Law A Lost Cause In India?
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Is Criminal Law A Lost Cause In India?

With new categories of crime and punishment being introduced by the legislature in the Indian Criminal Justice System, one big concern that is prevalent across the academia is how the these categories of offences and the procedure for adjudication is not in consonance with the fundamental principles of criminal law, be it presumption of innocence, equality, proportionality, etc. However, this is not the first time that such a thing is happening in India since similar laws were applicable during the British rule in India. Thomas Macaulay took it upon himself and played a pivotal role in the drafting the Indian Penal Code (IPC), 1860, which was one code with provisions in consonance with each other, that was made applicable in British India to avoid uncertainty and confusion. We have come to the same junction and it is high time that we realise the importance of codification, revisit our laws and reform them. 

Before we examine our current laws, it is important that we look back at the times and circumstances under which the IPC was drafted. It was on July 10, 1833 that a young English lawyer named Thomas Babington Macaulay in his speech before the House of Commons said that the role of the British government was to give good governance to the people whom they cannot give a free government. At the core of Macaulay’s good governance stood what he saw as one of England’s greatest gifts to the people of India—the Rule of Law. Up until then, the East India Company was functioning on a plurality of legal sources like British Act of Parliaments, Hindu and Muslim personal laws, Islamic Criminal laws, regional regulations, etc. Later that year, Macaulay was entrusted with the job of codifying the laws of India and bringing order to the unwieldy and confusing system.

Soon after its inception, the IPC was praised for clear articulation. Scholars like Barry Wright saw the IPC as a manifestation of rationalised and modernised forms of authority which places the rule of law at the centre and which aimed to make British governance more effective and legitimate.  

These observations about the IPC were made about 135 years ago and even the best codes often lose many of their attributes if they remain unaltered or details are randomly modified over an extended period of time. The IPC as a matter of fact has not been serviced, let alone remodelled, since leaving its codifier’s desk. As a result, it struggles to remain the principal repository of the foundational principles of criminal responsibility in the majority of the South Asian jurisdictions including India, Singapore, Malaysia etc. The IPC in modern time is hardly referred to or has any influence on the development of subsequent penal legislation.

Criminal Law: A Lost Cause

Andrew Ashworth, a renowned jurist who was also a Professor of English Law at the University of Oxford, in his book “Positive Obligations in Criminal Law”, explores the question of whether criminal law is a lost cause. Ashworth observes that only little sense is applied while introducing a new offence which results in an unprincipled and chaotic construction of criminal laws that prompts the question whether it is a lost cause. Ashworth dwells into few important principles of criminal law, one of the most important being the principle of equal treatment. The fundamental concept of this principle is that those who commit wrongs of equivalent seriousness in relevant similar circumstances should be subjected to censure of a similar magnitude.This principle could be contrasted with the report of the Vidhi Centre for Legal Policy, published in April 2018 on the working of the Narcotic Drugs and Psychotropic Substances Act in the State of Punjab. The report specifically pointed out the disparities in sentences that were awarded to accused in pharmaceutical drug cases. For instance, in two separate cases involving same amount of narcotic drugs, the Special Court of Amritsar punished the accused with one year and six months’ imprisonment and a fine of 3,000 rupees whereas the Special Court of Patiala punished the accused with 10 years rigorous imprisonment and Rs 1,00,000 fine. On examining various cases of similar nature, the report concluded that sentencing for pharmaceutical drug offences under the NDPS Act varied dramatically across districts and even within districts. A cardinal principle of criminal law is that the desert for offences similar in nature should also be similar. A system of criminal justice that allows the differential enforcement of its law is not a system that honours the principle of equal treatment.

With enactment of statutes with time, it has been observed that there have been instances of interweaving and blurring of legal forms as there are statutes like the Intellectual property law and provision like Section 138 of the Negotiable Instruments Act, 1881, where the civil remedies sit alongside some criminal offences. This mutation of legal forms tends to often erase the functional distinction between a criminal law proceeding and a civil law proceeding. Criminal law across all liberal democracies including India provides for certain protection to accused like the ones mentioned and interpreted by Courts under Articles 20, 21 and 22 of the Constitution of India and also several protections mentioned under the European Convention of Human Rights (ECHR), International Convention on Civil and Political Rights (ICCPR) etc. But when a proceeding against a person is labelled as a civil proceeding which has a tendency to provide punishments like imprisonment or that which is equivalent to a punishment under Criminal proceeding, then the entire purpose of these protection of accused gets defeated since they are often not afforded these fundamental protection primarily because of the reason that they are labelled as civil proceedings and not criminal cases.  

Another cardinal principle of criminal law that we often hear about is that in any criminal proceeding it is the duty of the prosecutor to establish a case against the accused beyond reasonable doubts and it is after the prosecutor has satisfactorily done his/her job the burden of proving or disproving shifts on the accused. This also is known as the famous Golden Thread principle, laid down in the famous case of Woolmington vs.  Director of Public Prosecution (1935), decidedby the United Kingdom House of Lords. This principle also is inextricably linked to the principle of presumption of innocence, whereby an accused is presumed innocent until and unless proven guilty. However modern criminal law statutes tend to forgo this very cardinal principle of criminal law as laws like the Narcotic Drugs and Psychotropic Substances Act, the Prevention of Money Laundering Act, the Unlawful Activities (Prevention) Act, the Foreign Exchange Management Act etc. have something called the reverse burden of proof, which casts the duty on the accused to present his/her case first, post which the prosecution argues, which prima facie is against the golden thread principle and other cardinal principles of the criminal law.  

The Way Forward

From our discussion above on various fundamental principles of criminal law and its compliances across various spectrums of the criminal justice system in India, we have seen that in majority of the cases the principles are not followed or blatantly ignored by legislators while drafting penal laws. There definitely has been some progress as the Courts, in limited cases, have been vigilant enough to identify the issue and have taken positive steps in curbing it, however a large number of provisions in penal statutes which are against the fundamental principles of Criminal law are in force till date. 

In order to curb this evil, we need to create a similar scheme as prepared by Macaulay in the year 1860 whereby general principles can be codified which would mandatorily have to be followed by all criminal law statutes. Even Stanley Yeo and Barry Wright, in their article titled Revitalising Macaulay’s Indian Penal Code, after identifying the shortcomings of the IPC on several parameters, argue for a modern set of general principles of criminal law that would be consistent with the spirit of Macaulay’s original draft and which could be incorporated into an updates version of the IPC. Reference could also be taken from the English Law Commission’s welcoming the proposal by the Criminal Law Sub-Committee of the Public Teacher of Law in the year 1980, which recommended that there needs to be a codification of criminal law which could contain the general principles which would govern the liability under it, a standard terminology to be used in it and the rules which should govern its interpretation. Similar could be employed in India as well where a committee of all major criminal law jurists come together to form a general part of the criminal code which would have the general principles that would mandatorily have to be followed by all criminal law statutes across the length and breadth of India.

(The author is a law student at Jindal Global Law School, Sonepat. Views expressed are personal.)

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