Need to weed out outdated provisions, and update IPC to include modern day/hitherto excluded offences
The committee on reforms in criminal law, set up by the Union home ministry, has started registrations for expert and public consultations on the changes to the criminal law system in India, chiefly to the Indian Penal Code (IPC), and the corollary Criminal Procedure Code and the Indian Evidence Act. The IPC has needed a relook for decades now, given it was largely formalised to aid the colonial government in India, well over 150 years ago, with the British ethos of the era colouring its view of justice and crime. As a result, we have some archaic laws that hang over the heads of people who, in a modern society, would not be considered to have committed a crime, even as the IPC remains ignorant of modern-age crimes with grave consequences for victims and society as a whole. It took 71 years of Independence to get rid of Section 377 of the IPC, which criminalised sex against the ‘order of nature’—it made homosexuality a crime—while there is ample evidence that homosexuality was accorded more tolerance in the subcontinent, even if the major religions of the region were unambiguously against it.
Recall the sedition case registered in Bihar against public personalities who had written an open letter to the prime minister against beef lynchings—the complainant in this case had alleged that this showed India in poor light. The relevant IPC section allows for classifying civil, legitimate dissent against a government or political approach as a crime against the state, in the process eroding the foundation on which many fundamental freedoms guaranteed by the Constitution stand. The committee is reportedly deliberating if the provision should altogether go or be amended—but given how irresponsibly it has been exercised by both the Centre and state governments, with political underpinnings across the ideological spectrum, continuing with such a category of offence even if it is amended substantially will keep the door open for future silencing of dissent. Indeed, in a 2018 consultation paper, the Law Commission states, “If the country is not open to positive criticism, there lies little difference between the pre- and post-independence eras”. Provisions punishing adultery, gambling/betting, attempt to suicide—though the Mental Health Care Act (MHCA) 2018 is believed to have decriminalised attempt to suicide, the fact is that the Section 309 of the IPC that criminalises it remains in the books, and the MHCA allows just enough room for it to be exercised in case of “exceptions”—have lingered on for so long. In the case of gambling and betting, the Law Commission, in one of its reports, opines, “With the changing times (digital technology facilitating gambling and betting), there could always be an option to have a relook at the earlier approach of a complete ban. The relook, if any, may take into account the possible loss of revenue and employment generation that a regulation could bring about”.
The committee is looking at various provisions that are, at best, obsolete in their assumption of ‘offence’, and, at the worst, damaging to the democratic structure from a rights perspective. From contempt of court to the prevention of bigamy by conversion to Islam, from bail procedures to inclusion of hate crime, digital crimes, marital rape and acid attacks as specific crimes, the committee must cover a large and diverse landscape of ‘offences’ and criminal procedure to craft a criminal law system that is truly in tune with the times. To that end, there is a need to examine each obsolete ‘offence’ and each hitherto excluded offence for current and future socio-legal implications.