A significant step to dispel colonial legacy

Many years ago, I met a scholar from Pakistan and was amused to find that 420 held the same connotation in Pakistan as in India. Thanks to films, television serials and even literature, sections such as 302 and 420 in the Indian Penal Code (IPC) and 144 in the Criminal Procedure Code (CrPC) became part of everyday usage. We will have to get used to new nomenclature, just as we get used to the renumbering of national highways or the renaming of cities. But the three bills — Bharatiya Sakshya Sanhita (BSS), Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) — are more substantive than mere tokenism, nomenclature tweaks, or getting rid of colonial legacies (references to Her Majesty’s government and so on). For those uncomfortable with Indian words, these respectively refer to the Indian Evidence Act (1872), Indian Penal Code (1860) and Criminal Procedure Code (1973). The vintage suggests the need for change.

CrPC may seem relatively recent, but the 1973 version was only a modification of the 1898 statute. More than 47 million cases are pending in Indian courts, more, if one includes quasi-judicial forums. Roughly, two-thirds are criminal cases. The function of criminal justice is to protect the innocent and punish the guilty. If innocent people are punished, that’s one kind of error. If the guilty are not punished, then that’s another kind.

Statisticians refer to these as Type I and Type II errors and a standard problem is that one can’t reduce both kinds of errors simultaneously. The Indian situation is worse. Moving beyond the innocent, there are undertrials, accused of petty crimes.

Vishnu Tiwari, an innocent accused of a rape charge, was recently freed after 20 years. It has been fatuously remarked that everyone who should be in jail is out of jail and everyone in jail should be out of jail.

A credible criminal justice system, transcending Damini’s famous dialogue of tareekh pe tareekh syndrome, is a big ask. These three bills make a dent, but can’t be expected to solve the problem in its entirety. This is reminiscent of amendments to the Civil Procedure Code (CPC).

Two questions are key — what is a “crime” and what is the procedure followed in criminal trials? There have been committees galore. One such was the Justice VS Malimath Committee formed 20 years ago. There was also the Madhav Menon Committee in 2007, and several others.

This time, the template has been devised by the National Law University, Delhi. Skipping the details, I don’t think anyone can carp at proposed changes in BSS (definition of documents, digitisation, video recording) or BNSS (the procedure for zero first information report, summary trial, 90 days for charge sheets, 30 days for judgments, two adjournments, automatic bail, witness protection, commutation, confiscation of property related to crime, disposal of case property). But as with CPC, a lot depends on the blunting edge of court judgments and systemic problems in lower courts, where the bulk of criminal cases are concentrated.

The more serious issue is the definition of “crime”. These bills don’t, and can’t address Special and Local Laws (SLL), which are state subjects. Several criminal cases are about SLLs, not IPC. Thomas Macaulay is much reviled. As a member of the then Law Commission, he authored the first draft of IPC in 1837. There are differences between Macaulay’s 1837 draft and the eventual IPC.

Perhaps because he wasn’t a trained lawyer, Macaulay’s draft was precise, not requiring illustrations and examples; sections subsequently added to the IPC are replete with it. Some bits of BNS are clear enough — X shouldn’t be a crime. (377 is an example.) Or, it is a crime, but penalties are not serious enough — Y isn’t a crime, but ought to be. Organised crime, sex on false pretences, gangrape, lynching, snatching, hit and run, and initiating children into crime are some such examples.

Or, it is a crime but without warranting serious punishments. Why shouldn’t there be community service instead of imprisonment in such cases? This is in line with the government’s initiatives to decriminalise minor offences, reflected in the earlier Jan Vishwas Bill.

In effect, at a philosophical level, this is a reassessment of “crime”. Decriminalise the minor and ensure punishment is more severe for the major. But there are places where the Macaulay test of precision fails. The more precise the language, the lesser the need for illustrations and examples, and for courts to step in to interpret what the legislature intended. An obvious example of this is the offence of sedition or treason.

Though these expressions no longer remain in BNS, they creep in, through the use of other words that are not precise enough. The bills will head to a parliamentary committee, before becoming acts. In the process, one hopes that the good (and there is quite a bit of it) is not diluted and the bad (there is a bit of it) is addressed. Macaulay is much maligned. But there are lessons to be learnt from his precision.

There is a cliched quote from Roman historian Tacitus — the more numerous the laws, the more corrupt a State. In Annals, Tacitus intended correlation, not causation. If BSS, BNS and BNSS are slimmer, with fewer sections, that itself is a good sign. With Sanskrit at the root of the new nomenclature paradigm, it must also be noted that the ancient language has no satisfactory word (other than a concocted one) for lawyer, or for adjournment.

Bibek Debroy is chairman, EAC-PM. The views expressed are personal