New Criminal Reforms: Substantial Change Or Linguistic Imperialism?

• Including the term Transgender” under the head “Gender”: Under the BNS, Section 2(9) defines “Gender”. Earlier, “Gender” included only Male and Female. However, with this change, now Transgenders are also included in the definition of Gender. Such a step is one step ahead towards equality for Transgender Community.
• Increase in Punishment for Offences against Women and Children: Under the BNS, a punishment for life imprisonment or death sentence has been added in cases where a group of persons rape any girl below 18 years of age.
• Increase in Punishment for Mob Lynching: Under the BNS, the offence of Mob Lynching is punishable under the same provision as Murder, which is Section 101 of BNS. A separate specific provision under the same has been incorporated for Mob Lynching, adding punishment as seven years imprisonment which may extend upto death penalty.
• Community Service as form of Punishment: Section 4(f) of the BNS has introduced Community Service as a form of punishment for petty offences. Until now, the courts had exercised their discretion to order community service.
• Digitalization of the Existing Procedure: Under the BNSS, Section 532 has been inserted which provides for conducting the procedure electronically, including but not limited to trials, examination of witnesses, recording of evidence, execution of summons and warrants, and several other processes. Moreover, a provision for video-graphing at the time of raids has also been inserted which will reduce a number of false cases being registered against innocent persons, thereby, streamlining the process.

Some of the Cautionary Notes are as follows:

• No actual need for Introducing Separate Bills: The changes brought in by the above three Bills could have easily been done by amending the already existing IPC, CrPC, and Evidence Act. There was no urgent or pressing need for drafting all the Criminal Laws from scratch under the garb of “reforming”.
• Language Barrier: It is important to note that our justice system largely runs in English language in order to preserve the ethos of a democratic nation. However, renaming the Bills in Hindi language represents that an attempt is made to codify the laws for Hindi speaking sect of the country. Such an action of renaming the laws doesn’t seem reasonable since only 44% of our population is Hindi speaking sect.
• Technical Impartibility: While moving our criminal justice system towards technologically furbished methods, it must be kept in mind that there are various districts, states, and especially district courts which are not well equipped with technical jargons, let alone, burdening them with following/implementing the procedure via videography, video conferencing, or/and other electronic modes of conducting trials, examination of witnesses and accused, and other such actions.
• Lack of proper Infrastructure for storing Electronically collected Material: Before pushing the robust criminal procedure towards electronic mode, we must ask this question- Are we well equipped to store confidential information like examination/statements of accused and witnesses, evidences, investigation, and trial records? Reforms should be brought in keeping in mind both legal framework and practical aspects of its applicability in the country. Our infrastructure has to be strong and magnificent in order to protect the citizens, especially the parties involved from getting it stolen, leaked, breached, or tampered with. If any of the above happens, it would tantamount to violation of Right to Privacy of the parties which is intrinsic as per the K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.

Linguistic Imperialism qua the (Re)naming Debate: 

As per the latest census, only 44% of the total Indian population speaks Hindi as its mother tongue, which leads us to the other 56% of the population. In practice, however, only some States teach both their predominant language and Hindi, besides English. Where does this leave lawyers practising in states outside Delhi like Tamil Nadu, Andhra Pradesh, Odisha etc.?

Article 348(1)(a) of the Constitution of India, 1950 states that all proceedings in the Supreme Court and in every High Court, shall be in English language. The Official Language Act, 1963 reiterates this and provides under Section 7 of the said Act that the use of Hindi or official language of a State in addition to the English language may be authorized, with the consent of the President of India, by the Governor of the State for the purpose of judgments, decrees etc. made by the High Court for that State.

No law has been made in this regard by the Parliament so far. Therefore, English continues to be the language for all the proceedings of the Supreme Court. Moreover, the issue of naming these bills in Hindi is problematic because Hindi is not the official language of courts. It maybe argued that such an act tantamount to “Gatekeeping”, which as per the Cambridge Dictionary is defined as an activity of trying to control who gets resources, power, opportunities, and who does not. While gatekeeping may apply to various contexts, it is typically used in the context of ideological tribalism where members of the in-group of an ideology are enabled, and members of the out-group are actively impeded which is parallel to what is means when the laws are renamed.

While title cannot trump substance, the revamped names of the new Criminal Bills cause misrepresentation the title does not give a clear picture of what the law is about. Reforming the Criminal Laws require more than just changing the title. It involves revising the framework and policies to improve the justice system as a whole since this is a comprehensive process that incapsulates variety of changes including redefining/introducing criminal offences, amending certain provisions, and improving the fairness of trials to ensure that overall criminal system is efficient and in-line with the societal norms.

Respect for precedents gives the law consistency and makes interpretations of the law consistent. However, this act of revamping and renaming the Criminal Laws, not only disrupts the criminal justice system but also poses a burden on our Constitutional Courts in near future.

Lastly, the laws of the country are adequate what is lacking is the honest enforcement of the exiting laws. Introducing new Bills for reforming the already existing Criminal Laws may lead to inconsistent enforcement as current resources are inadequate, there is a lack of proper training, and framework. Whether these Bills will improve or reform the criminal justice system will depend upon its implementation.

About the Authors:

Tariq Khan is an advocate practicing in Delhi High Court. 

Diksha Dadu is an advocate practicing at the Supreme Court of India and various courts and tribunals of Delhi. She can be reached at adv.dikshadadu@gmail.com.