Subject: Indian Society

IPC & the need for modernisation

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The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens.

Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said that the IPC, 1860 requires a thorough revision to meet the needs of the 21st century. Click here to know everything about sedition law

History:

• The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington MacaulayAnswer in comments.>
• It came into force in British India(but not princely states) during the early British Raj period in 1862
• After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code and later in B’desh also
• Jammu and Kashmir does not follow IPC but has enacted a separate code known as Ranbir Penal Code (RPC) which is based on IPC

Some notable points:

• The IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism
• It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire
• Today, it is the longest serving criminal code in the common-law world
• Today, most of the commonwealth follows the IPC

Law Commission on IPC:

• 42nd Report (1971)– Law Commission of India for the first time had recommended the repeal of Section 309 (criminalization of suicide)
• 172nd Report (2000)– Recommended deletion of Section 377 (criminalization of unnatural sexual offences)
• 210th Report (2008)– Recommended Humanization and Decriminalization of Attempt to Suicide under Section 309

Past attempts at amendment:

• Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the Law Commission in 1971 recommending it
• Also the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha
• As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times
• Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case

Why amend IPC?

• The philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy <designed to meet colonial needs to subjugation and exploitation of India and Indians, sedition law for instance>
• Some of the concepts underlying the code are either problematic or have become obsolete
• there are many new offences, which have to be properly defined and incorporated in the code
• Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced
• In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then

Specific cases or problems:

1. Sedition law, inserted in 1898: It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Learn more about sedition law here
2. Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
3. Criminal conspiracy: It can be invoked merely when two people agree to commit an offence without any overt act following the agreement.
   It was added in 1913 by the colonial masters to deal with political conspiracies.
   Kehar Singh etc were convicted and sentenced to death under the offence of conspiracy ,, though none of them participated in the actual crime or were present at the scene of the crime.
4. Section 149, Unlawful assembly: The principle of constructive liability under this law is pushed to unduly harsh lengths.
   Mere membership of the assembly without any participation in the actual crime is sufficient for punishment.
   Several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime.
5. The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
6. Sexual offences under the code reveal patriarchal values and Victorian morality.
7. Section 377:  Unnatural sexual offences (LGBT right). Want to know about argument of Delhi high court in decriminalizing homosexuality, click here to read about Naz Foundation case

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Contrarian view point of Justice Hegde

We should not repeal something just because it’s 150 years old.

On Sedition: He favours the sedition law as some restrictions are needed to stop people from abusing and talking against the country. “I believe in sedition law. I am a patriot. Any patriot cannot go on abusing the country. There are certain parameters.” He points to distinction b/w criticizing the person (prime minister), policies, system v/s abusing the state

On IPC:  We can not just scrap Indian Penal Code because somebody is involved in a crime (and wants it to be scrapped)

We can not just ape west. Ground realities in India and west are very different and they demand different levels of freedom of expression and religious freedom.

Everything that you need to know about the recently passed Juvenile Justice Bill

The Juvenile Justice Bill, 2014 introduced by the Minister of Women and Child Development, Maneka Gandhi, in the Lok Sabha on August 12, 2014 and now passed in the both house of Parliament. Let’s take it in brief!

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Let’s first take a glance over its background?

• The new Juvenile Justice Bill, 2015 has a provision that allows juvenile accused aged between 16 and 18 years who are accused of heinous crimes like rape, murder, etc., to be tried under the Indian Penal Code (IPC).
• According to the proposed law, matters are to be presented to the Juvenile Justice Board on a case-by-case basis.
• Board will then decide, based on an assessment of the mental state of the child, whether the crime was committed with/without an understanding of its consequences.
• Based on this assessment, the juvenile offenders will be treated under either IPC or the JJ Act. The board will be aided by experts in making that decision.

Let’s take a dive into the more details

What are the significant provisions of bill?

• The Bill replaces the Juvenile Justice (Care and Protection of Children) Act, 2000.
• It seeks to address challenges in the existing Act such as delays in adoption processes, high pendency of cases, accountability of institutions, etc.
• The UN Convention on the Rights of the Child requires all signatory countries to treat every child under the age of 18 years as equal.
• The provision of trying a juvenile as an adult contravenes the Convention.
• The Bill further seeks to address children in the 16-18 age group, in conflict with law, as an increased incidence of crimes committed by them have been reported over the past few years.

What’s the scope of the bill?

• The Bill defines a child as anyone less than 18 years of age. However, a special provision has been inserted for the possibility of trying 16-18 year olds committing heinous offences, as adults.
• A heinous offence is defined as one for which the minimum punishment under the Indian Penal Code(IPC) is 7 years.

Is that provision leads to violation of Articles 14, 21 and 20(1) of the Constitution?

How does it affect Article 14?

• Article 14 states that every person shall be treated equally before law.
• It has been interpreted that unequal treatment may be permitted between different sets of people only if there is a clear public purpose sought to be achieved by such unequal treatment.
• The Bill creates a distinction between 2 juvenile offenders committing the same offence on the basis of the date of apprehension.

And what about Article 21?

• Article 21 states that no person can be deprived of their right to life or personal liberty, except according to procedure established by law.
• Courts have interpreted this to say that any law or procedure established should be fair and reasonable.
• The differentiation based on the date of apprehension may fail this standard.

So, again Article 20(1) also affects?

• Article 20(1) of the Constitution states that a person cannot be subjected to a penalty greater than what would have been applicable to him, under a law in force at the time of commission of the offence.
• Under the Bill, if a juvenile between the ages of 16-18 years commits an offence and is apprehended at a later date, he may face a higher penalty than what would be applicable to him if he had been apprehended at the time of commission of the offence.

Let’s move forward to main provisions of the bill

Why is there need of Juvenile Justice Boards (JJBs)?

• One or more JJBs to be constituted, for each district, for dealing with children in conflict with law.
• JJBs are composed of a Metropolitan or Judicial Magistrate and 2 social workers, one of whom shall be a woman.

Powers and responsibilities of the JJBs include –

• Ensuring legal aid for a child.
• Adjudicating and disposing of cases related to children in conflict with law.
• Conducting regular inspection of adult jails to ensure no child is lodged in such jails and other inspection visits.
• Conducting inspection visits of residential facilities for such children.

Then, what is the role of Children’s Court?

• A Children’s Court is a Court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012.
• It will try 16-18 year olds that commit heinous offences, after confirming that they are fit to be tried as adults.
• It ensures that a child in conflict with law is sent to a place of safety until he attains the age of 21 years, after which he is transferred to a jail.
• During the child’s stay in the place of safety, reformative services such as counselling, etc. shall be provided.
• The Court shall ensure periodic follow up reports by District Child Protection Units.

Let’s know the role of Child Welfare Committees (CWCs)?

States shall constitute one or more CWCs for each district for dealing with children in need of care and protection.

The powers and responsibilities of a CWC include:

• Conducting inquiries.
• Selecting registered institutions for the placement of a child.
• Addressing orphans, abandoned children, surrendered children and sexually abused children, etc.

What are the key recommendations of Parliamentary Standing Committee (PSC) for bill?

The PSC on Human Resource Development (Chair: Dr. Satyanarayan Jatiya) submitted its report on the Bill on February 25, 2015.

[PSC is a committee created by Parliament from time to time to help deliberate or scrutinise activities under its responsibility. It’s created by, and defers to, the Parliament – either the Lok Sabha or the Rajya Sabha.]

Key recommendations include –

Constitutional provisions

• The Committee noted that the 2000 Act recognises the sensitive age of 16-18 year olds and is reformative and rehabilitative in nature.
• Subjecting juveniles to the adult judicial system would go against the principle of Articles 14 (unequal treatment of 16-18 year olds) and 15(3) (against the objective of protecting children) of the Constitution.
• It also said that the Bill was in violation of Articles 20(1) and 21 of the Constitution.

NCRB data

• One of the reasons cited for the Bill’s introduction is an increase in heinous offences committed by 16-18 year olds.
• The Committee stated that this data compiled by NCRB is misleading as it is based on filing of FIRs and not actual convictions.

Implementation

• The Committee observed that the Act is not being implemented well.
• It recommended better implementation and uniform establishment of systems and procedures, by all agencies.

But, Why did Reports and experts differ to passed such law?

• According to the National Crime Records Bureau, juveniles committed 31,725 crimes – 1.2 percent of the total number of serious crimes – in India in 2013.
• By comparison, in the United States, juveniles were responsible for 25 percent of violent crimes in the same year.
• The NCRB data said there were 17,795 cases of theft, burglary and physical assault by juveniles, and 2,074 rapes. The total number of rapes in 2013 was 33,707.
• Child rights activists say judging the maturity of a juvenile is difficult as their brain is different in structure and functioning than that of an adult, and that conclusions drawn would be “unscientific” and “arbitrary”.
• They say authorities should look at the profile of juvenile offenders, many are poor, uneducated and abused and give them the chance to reform, rather than punishing them blindly.

[So, If there are children engaging in violence, it is the fault and failure of the state. The state must respond to the violence of young people with kindness. Isn’t it?]

So, What’s Next ?

• The newly passed law does not allow for juveniles to be sentenced to death or to life imprisonment without the possibility of release.
• However, the new law will not apply to the December 2012 Delhi gangrape as criminal laws cannot be retrospective in nature.
• Still, everyone looks happy for such law, reason we all know that, delayed but at least it finally happened.

What do you think on JJ Act, 2015? Let us know!

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Published with inputs from Arun | Image: Credit to ipleaders