Penal code woes: Enact laws that have a good chance to endure
Summary
- Proposals for India’s criminal law overhaul need close scrutiny. In casting off a colonial legacy, we must adopt a legal framework that’s Constitutional and can survive political tides. Let’s not be hasty.
The case for shedding a colonial-era penal code rests not just on how outdated some of its provisions are, but on a need to actualize our 1947 liberation from foreign rule. Individual liberty, it was hoped, could be maximized within the constraint of neither depriving others of it, nor causing anyone harm—a live-and-let-live model. A recent let-down for such a liberal order was the news of a parliamentary panel asking for adultery to be listed as an offence under the Bharatiya Nyaya Sanhita (BNS), which India’s government plans to replace the Indian Penal Code (IPC) of 1860 with. As a weapon designed for males to wield against their wives’ lovers, the old IPC version denied women sexual agency and was struck down by the Supreme Court in 2018. Should marital infidelity now be outlawed by a gender-neutral provision? While this may satisfy the equality test, the judicial ruling that scrapped the Victorian ban also held it to be in violation of Article 21—our right, i.e., to life and liberty. As adultery can split families and cause pain, it requires some restraint, no doubt, but every misdeed is not a crime. Prison for consensual sex is not just too harsh, it would also legitimize a nosey state with likely disregard for privacy.
Ideally, for gender justice to be served, the committee that has the BNS under scrutiny should focus on the draft’s misses and mis-steps, as outlined by Mint (bit.ly/488xLWz) in August. The bill fails to outlaw marital rape, for example, a missed chance to protect female free will from undue male privilege. But it would make it illegal to use “deceitful means" for marriage, with deceit defined to cover not just false avowals, but “suppressing identity." This part looks aimed at so-called ‘love jihad,’ the alleged masking of a minority faith to ‘entrap’ women, and its validity could well be challenged in court. That loosely worded laws can be interpreted widely to suit the day’s regime was a lesson we learnt long ago from a British whip in the shape of Section 124A on sedition in the IPC. Its misuse has been rampant, its role in keeping us secure remains unclear, and it’s a colonial relic that’s best dropped. Unfortunately, it may live on in the guise of Clause 150 in the BNS. The dangers it criminalizes in defence of India’s sovereignty, unity and integrity are no less badly defined, making them a tad too easy for law-enforcers to apply. Other aspects of the proposed BNS may also need a review. Its tough-on-terror aim is unlikely to be served accurately by an enlarged definition of it. Even a non-violent act that is deemed a “disturbance of public order" or a threat to “political, economic or social structures" could count as a terrorist act under the BNS, it seems, with stiff penalties to follow. Again, the bill casts this dragnet too wide.
Clarity in law is key to justice. No legal system can afford a burden of false-guilt errors, but India’s politics, social schisms and lack of police autonomy make it particularly vital to draft laws clearly. Law enforcement will also turn harsher if the Centre’s proposals on criminal procedures are enacted. These seek to over-empower the police. The limit on how long an accused can be held in police custody, for instance, will be extended in ways that could make ‘interrogations’ in lock-ups even more fearsome. It fits in with the rightist lurch of the BNS, which not only retains the death penalty, but enlarges its scope. This, however, is neither the legal rehaul we need, nor a legislative bent that’s likely to survive the test of time.
