By Justice Kamaljit Singh Garewal
Call the three bills 21st century criminology or new wine in old bottles, they are certain to give us much food for thought. And tie up the victim, the investigator, the accused, the prosecutor, the defence counsel and the judge in knots trying to unravel which provisions have changed and where to find them. The transition to the new laws shall be exciting to say the least. For one who witnessed the change from CrPC 1898 to CrPC 1973, it will be interesting to see how things unfold when the merry-go-around of justice swings into action, in this age of the instant communication, and how judges manage the transition.
At the end of the day when the trial is over, when everyone has left the courtroom, the only person left standing is the accused. And he waits with bated breath, for the judge to decide. Guilty or not, and if guilty, will he get ten, five or three years. One only hopes the accused gets a quick and fair trial, and the victim gets adequate compensation. The rest is secondary.
Crime has always been punished, even in the bad old days, when they were undefined, un-codified, unfair, based on hearsay, leaving scope for miscarriage of justice by modern standards. At least since the 1860s, in British ruled provinces, crimes were defined and the rules of evidence to establish the charges through a well structured procedure were in place. Macaulay is said to have remarked that “the principle is simply this, uniformity when you can have it; diversity when you must have it; but, in all cases certainty”.
Those laws also gave us the principles of mens rea, benefit of doubt, common intention, among many others now firmly ingrained in our jurisprudence. Yet we censure these British-era laws after 73 years. Unless the new laws are going to provide us a superior, sophisticated system, it would have all been in vain.
One can’t help notice that at first glance, the Bills have simply juggled the existing British-era provisions, while simultaneously denouncing them. And re-numbered the sections which were not at all necessary. Amendments, deletions, additions, modifications could well have been carried out in the existing CrPC, IPC and Evidence Act. Now we shall have Bharatiya Nagarik Suraksha Sanhita (BNSS), Bharatiya Nyaya Sanhita (BNS) and Bharatiya Sakshya Adhiniyam (BSA), in place of CrPC, IPC, and Evidence Act. A huge change in nomenclature but has the content of the laws also changed? Judges, lawyers, scholars, jurists shall have to work overtime to find the crux of the new system. And what a blunder it is to draft BSA, when the Evidence Act, 1872 was a near perfect model law, adapted all over the Commonwealth, which largely covers civil trials. No one can foresee the fate which awaits civil cases when BSA comes into force.
A pre-Macaulay era review of the justice system may help us to understand why changes were necessary after the First War of Independence and how these were brought about. In Punjab during Maharaja Ranjit Singh’s 40 year reign (1799-1839), which was outside the Company’s Raj, there were four clear steps to deal with crime. For the matter to be dealt with by the judge appointed by the sovereign, parties before the judge first paid nazarana (tribute), after the decision they paid jurmana (fine) and harzana (compensation to the victim) and failing to pay these amounts, the defendant was put in taikhana (dungeons) till the money was raised by him. There was no death sentence. In contemporary India, we are still decades away from banning capital punishment.
The system in other parts of India, barring the company’s territories, was not based on direct evidence, fair and open trial, which gave the accused full opportunity to defend himself. Company’s officers decided cases on the basis of shastras/shariat, explained to them by respective religious leaders and learned men. Where there was no guidance from religious texts, English common law began to be applied. The administration of justice gradually came into the hands of collectors and commissioners of the Company. This was when the Mughal Empire were in terminal decline, the Maratha confederacy had been subdued, princes and chiefs mollified through treaties which recognised the Company as the paramount power.
In this uncertain and bleak scenario in 1834, arrived Thomas Babington Macaulay, a British historian and Whig politician. He had written extensively as an essayist, on contemporary and historical socio-political subjects. Whigs were reformers, and early liberals, who wanted to limit the sovereign’s powers and had also supported American independence. Macaulay is considered primarily responsible for introducing the western education system in India, at the cost of our traditional education in gurukuls, madrasas and pathshalas. This may have been the real damage inflicted by Macaulay to our civilisational values.
Macaulay chaired the first Law Commission of India, and drafted the penal code, which was later enacted as the Indian Penal Code (1862), in the form we have today. By 1858, Britain had acquired full sovereignty over its Indian empire and paramountcy over princely states. Gradually, High Courts were set up in British India as courts of record. The criminal justice system began to unfold through various Criminal Procedure Codes of 1861, 1872, 1882 and finally crystallising into CrPC 1898. These Codes were meticulously drafted, and the provisions were stated with precision, administered through judges and magistrates of the Indian Civil Service. The judiciary and the executive were inseparable those days. The Code served the interests of the good Queen Victoria to run her Indian Empire like a muscular, well armed police state.
In time our stalwart lawyers acquired western learning and stepped forward to lead the freedom movement. Names of Bal Gangadhar Tilak, Sardar Vallabhbhai Patel, Mahatma Gandhi, Jawaharlal Nehru, BR Ambedkar and Muhammad Ali Jinnah spring to mind. None of them was of lesser intellectual brilliance than Macaulay.
Is it even fair to continue to berate Macaulay well into the present and blame him for all the ills of the system inherited from the past? Macaulay was a well educated man, a utilitarian in the mould of Jeremy Bentham and John Stuart Mill but also a colonialist. He died in 1859 without seeing his IPC put into action. “Macaulay’s laws” are now our laws, since we have owned them, and are the procedures which take citizens’ liberty away. There was nothing to stop us from overruling, overhauling or altogether junking these laws after we became a republic. No one thought of the amendments because everything was in order, and supposedly in conformity with fundamental rights. No one even thought of separating the judiciary from the executive. Nothing was done, so Macaulay lived on. Now must we exorcise his ghost.
However, we had our own eminent jurists suggesting reforms but the establishment of 1950s was rather wary of radical ideas. Many respected lawyers and judges worked with the Law Commissions of India to produce well researched reports on almost every conceivable subject of law. In 1958, MC Setalvad, Chairman of the Ist Law Commission of India, wrote: “Police exercised too much control over the prosecution despite the latter being organically linked but theoretically independent of the former. Police did not have the legal know how to conduct prosecution and did not possess the high degree of objectivity and detachment necessary for a prosecutor. The high degree of subjectivity and attachment of the police with the case implied that the prosecutor will be more biased towards securing conviction.” This direction has still not been implemented. Much later we got learned reports of Dr Justice VS Malimath (2003) and Prof Dr NR Madhava Menon (2010), which have been lying in some mouldy filing cabinet. The powers that be simply could not agree with each other or with their learned advisers.
Looking at the history of our reforms processes and the culture of police dominated prosecutions, there are unlikely to be improvements in the criminal justice system. The Committee for Reforms in Criminal Laws was formed in 2020 by the home ministry not the justice ministry. Ideally, the consultative process should have been a joint exercise of the home and justice departments. The result of the committee’s labours produced the three bills which were placed before Parliament by the home minister on the eve of the Independence Day. But the report of the Committee has not been placed in the public domain, leaving everyone guessing what research was done by the Committee and which Supreme Court judgments were considered while drafting the bills.
The present CrPC came into force on January 25, 1974. No one can miss the irony of Republic Day eve. It was presumably to bring it in belated conformity with Articles 20, 21 and 22 of the Constitution. The Emergency of June 1975, when all rights were tossed aside, was exactly 18 months away. The Code remains an exact replica of the old Code, and is therefore, an exercise in futility. The Code is supposedly based on the Law Commission’s voluminous 41st Report (1969) which took into consideration earlier reports of the Commission and gave section-wise appraisal of the Code for recommending amendments. Unfortunately, the report only resulted in a few cosmetic changes but none in the real procedure to hasten fair trials. The system remained police dominated because that was the colonial necessity and sadly remained so in republican India.
Be that as it may, we are still decades away from a smooth, well-oiled system where only well investigated cases with solid prosecutable evidence are placed before judges, who record convictions in at least nine out ten cases, and award condign punishment within four to six months. This cannot happen if the State relies too heavily on the police and keeps the prosecutors weak and impotent.
Law provides sufficient and more than adequate protection of rights to arrested persons. After every arrested person enters the criminal system, within 24 hours of arrest he must be transferred to the justice system and stay under a judge’s umbrella till his discharge, acquittal or conviction and sentence. The prosecutor first partners the investigator but must give up this partnership after the accused has been produced in court, to become an officer of the court. The period of 24 hours was fixed in the old code more than a century ago. Those days it did take 24 hours to reach the magistrate, this is not so any more.
Within 24 hours of arrest, the arrested person begins to enjoy all protection available to him under the Code and the Constitution. This is the theoretical position. In practice, the rights of arrested persons are often violated in protective custody of the system run by the State with the judiciary seemingly looking the other way. No one seems to be accountable. No one is punished for violations of rights. This is the real situation in contemporary India. It may not be prevalent in metropolitan India under the gaze of a watchful media. But travel to the far corners of the land, across the length and breadth of the nation, and see the real fate of arrested persons in far flung districts. It would have helped the Committee a great deal if its members had sat for at least a month in criminal courts in remote parts of the country and observed the proceedings incognito.
CrPC 1973 introduced the concept of judicial magistrates and executive magistrates but put executive magistrates under the district magistrate. And through him, executive magistrates came under the state government. It is hard to miss the irony of this arrangement which brings executive magistrates directly under the political masters. Coupled with this, the police are already under the state government.
Anyway, this principle of separation of judiciary from the executive now exists in the present code, introduced 23 years too late. Sadly, the delay allowed wrong habits to form in the magistracy and wrong practices to develop in the police, which continue till today. The basic flaws in our system are only two. Too many people sent up for trial, too few convictions recorded but too much valuable judicial time spent. It should be the other way around—maximum convictions in minimum time, but convictions arrived in a judicious and fair manner. Only those persons should be prosecuted against whom there is strong prosecutable evidence. No one can explain why trials are not held day-to-day, as required by Section 309 CrPC. These flaws must be addressed, and procedures improved for quick and condign punishment of the accused.
It seems, as the French adage goes, plus ca change, plus c’est la meme choses (the more things change, the more they remain the same). One hopes this does not become the fate of our justice system.
—The writer is former judge, Punjab and Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York