Is The Legislative Measure Of Repeal And Substitution Of The Three Existing Major Penal Statutes, An Inevitable Desideratum?

2. My objection is from the perspective of the “litigant public”, the “legal practitioners”, the “Judges and the Magistrates” and the “academicians”. I am a politically neutral person having no affinity or affiliation to any political party. As a Judge, I had convicted persons belonging to almost all political parties by scrupulously going by the weight of evidence in the cases before me and not by the colour of their flag. As a member of the body politic, I welcome and appreciate whatever good things done by any party in power, whether it is “X” or “Y”. Similarly, I have shown no hesitation to condemn bad things done by whichever political party in power. Probably, this detachment might have been imbibed through the judicial discipline which I had undergone under the great doyens of those days.

3. The impact which the new laws are going to make on the various stakeholders mentioned above, will be abysmal. Instead of amending the existing laws wherever necessary by keeping the “sections” in those laws intact, enacting new laws and changing even the “sections” in them can only result in total chaos besides unnecessary and avoidable litigative sprouts at different tires in the hierarchy of Courts. All the three major criminal laws now in vogue are time-tested statutes which, at best, needed only some marginal changes. Even if major changes were considered inevitable, that could have been achieved through appropriate amendments to the existing laws. Judges, Lawyers and Academicians have all become, over the years, familiar with most of the provisions in the existing laws. Many of the provisions are at their fingertips. A change in those penal provisions which have withstood the test of time, can only bring about confusion confounded, if not pandemonium right from the level of the cutting edge in the trial Courts. It is not a solitary case of Section 420 IPC becoming Section 319 (2) of BNS or Section 25 of the Indian Evidence Act becoming Section 23 (1) of BSA. Even after a century and a half of the passing of the existing penal statutes, we still come across different interpretations of many provisions at the hands of the Apex Court and other Constitutional Courts. Take for instance, Section 27 of the Indian Evidence Act. There are myriads of interpretations of the said Section by various Courts including the Apex Court. Even now a fresh wave of thought might be germinating in the mind of a lawyer or a Judge regarding the mechanics of Section 27. Likewise, there are ever so many provisions of criminal statutes which come up for interpretation before the various Courts. One cannot predict how many rounds of litigation these new penal provisions will give rise to and for how many decades. A miniscule section of the lawyer community may definitely find the new penal laws as a goldmine for litigative extravaganzas to the detriment of their own clients. But the majority of them are sure to get disillusioned as a result of the change of law. Another section which will draw rich dividends through the change of law, is the “law publishers”. The expensive commentaries and treatises on the existing penal statutes adorning the libraries in the Supreme Court, the High Courts and in the offices of the Attorney General at Delhi, Advocate Generals in all the High Courts, Law Universities and Law Colleges, Government Law Departments and the offices of the Advocates all over the country are bound to go waste. All of them will be forced to buy new commentaries and treatises. It will be after several rounds of litigation right upto the Supreme Court that even the textbook-writers will get enough case-law for incorporation in their commentaries, unless they prefer to switch over to the forensic vintage.

4. The real problem which we are going to be confronted with will be when we undertake a search into the case-law of a particular provision. The initial task will be to find out the corresponding “section”. The substituted provision need not necessarily be identically worded. Whenever a change has been effected to the corresponding new provision, a search into the case-law pertaining to the old provision may be a meaningless, if not a fruitless exercise. Wherever there is a change of phraseology in the corresponding new provision, the risk of its impact being subjected to judicial review will be greater. For instance, BNSS makes an unjust discrimination between a “police report” and a “complaint”. Unlike in the case of a “police report”, in the case of a “complaint”, the first proviso to Section 223 (1) of BNSS provides for an opportunity of being heard to the accused before taking cognizance of an offence. Likewise, clause (a) of Section 223 (2) of BNSS provides for an opportunity of being heard to an “accused public servant” before cognizance is taken on a “complaint” against such “public servant” who is also to be given an opportunity to make his assertions as to the situation which led to the incident. That apart, clause (b) of the said sub-section insists on a report of the facts and circumstances of the incident from the official superior of such “public servant”. Notice to the accused at the pre-cognizance stage is unheard of in criminal jurisprudence. The law, hitherto has been that the accused has no say in the curial act of taking cognizance of an offence and he is entitled to notice only after cognizance of the offence is taken. Even there, the law under Section 204 (1) Cr.P.C and under the proposed Section 227 (1) of BNSS is that the Court taking cognizance of the offence can issue process “only if there is sufficient ground for proceeding”. Here, there is an anomalous situation wherein even before taking cognizance of the offence, the accused is to be given notice and to be heard. Thereafter, if there is sufficient ground for proceeding, process will be issued to him under Section 227 (1) of BNSS. Contradiction apart, an accused who gets pre-cognizance notice will either put forward “his own story” or challenge the notice before a superior Court. When exactly the trial Court will ultimately take cognizance of the offence, is anybody's guess. Similarly, what is the basis for presuming that the official superior of the accused public servant will be aware of the facts and circumstances of the incident. Even in cases where such official superior is in the know of things, when exactly will he respond to the notice received from the Court. All these imponderables are sure impediments to the concept of “speedy trial” guaranteed by Article 21 of the Constitution of India. I have only pointed out one such example. There could be many.

5. These are days when “orders of stay” and “injunctions” are granted on a mere asking at every tier of litigation. There is a growing criticism that many of the Courts are making their presence felt only through interim orders. When the provisions of new penal statutes are assailed before the higher Courts, cases in the trial Courts are bound to stagnate resulting in delays and consequent denial of justice to innumerable justice-seekers. The litigative persistence can go upto the level of the Supreme Court. Such stagnation and resultant delays will only pave the way for cynicism and lack of faith of the common man (not to speak of the other stakeholders) in the administration of justice.

6. The three existing penal statutes are being dubbed as enactments suffering from the “colonial hangover”. If the criticism in this regard is true, what about the provisions in the new penal statutes?

Are they not wholly or substantially the same provisions under different “sections” with the same colonial flavour, if at all there is one?

They are old wine in new bottles! Except for the “docket” or the “label” for the “Sanhita” or “Abhiniyam”, the contents are in English only.

With what sincerity can we claim that the new penal laws are not relics of the same “colonial hangover”, if at all there is one?

What is so “occidental” or objectionable in the Indian Penal Code or in the Indian Evidence Act, unless one is xenophobic?

If the couple of penal statutes under substitution have colonial flavour and orientation, what about the myriads of statutes of pre-independence period which are all still vibrant enactments currently in force in independent India. Great jurists all over the globe had paid rich encomiums to the Indian Penal Code, Indian Evidence Act etc. We, in India too have been proud of the above legislations. Lord Macaulay and Sir James Stephen are venerated not because they were Englishmen but because they were the chief architects behind the above legislations painstakingly drafted to suit the Indian setting and well known for their “precision”, “clarity” and “universality”.

7. I have not deliberated on a “section-wise study” of the proposed penal laws and I do not have the patience or strength to do so. Even with regard to the existing penal statutes which continue to produce innumerable, and at times confusing, judicial interpretations, those (including me) who are concerned with the administration of justice are still groping in the dark about their real meaning. It is at this juncture that an avoidable exercise of substituting those penal statutes with new legislations giving tongue-twisting indigenous appellations, has been resorted to. If one were to take the sincere opinion of the Magistrates, Sessions Judges and Trial Lawyers in the country, I do not think that they will honestly favour a change of the existing law particularly the “sections” with which they have familiarized themselves all these decades. It is not because they are averse or allergic to change but because they will find it difficult to re-align themselves to the paradigm shift.

8. My humble appeal to those in the nerve centers of power is to abandon the substitution of the time-tested major penal statutes, but instead, to resort to constructive amendments to the existing statutes taking care to keep the existing “sections” intact.

Author is a Former Judge, High Court of Kerala.

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