Law and You > Criminal Laws > Indian Penal Code > Reforms in IPC
Criminal law in India is governed by Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Indian Evidence Act, 1872, etc. Criminal law is considered to be the most apparent expression of the relationship between a state and its citizens. Recently, the government has initiated the process of amendment to Criminal laws such as Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. In this article, we shall discuss reforms in IPC.
What is IPC?
The Indian Penal Code (IPC) is the main criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Thomas Babington Macaulay. The code came into force on January 1st, 1860 after undergoing many revisions and amendments by Barnes Peacock who would go on to serve as the first Chief Justice of the Calcutta High Court. However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s.
Structure of IPC:
There are 23 chapters and 511 sections in the India Penal Code, which can broadly be classified into four categories:
- Chapters I to V deal with general matters relating to the extent, definitions, principles of liability, etc.
- Chapters VI to XV deal with public matters between individuals and the state.
- Chapters XVI to XXII primarily concerned with criminal offences committed by individuals against individuals or legal entities other than the state.
- Chapter XXIII is residuary in nature, establishing the principles of punishment for attempting to commit an offence where no specific provision has been made.
Need of Reforms in IPC:
- The codification of criminal laws in India was done during British rule, which more or less remains the same even in the 21st century. The laws have not undergone any major changes since India gained its independence.
- The criminal justice system in India is a replica of the British colonial jurisprudence, which was designed with the purpose of ruling the nation and not serving the citizens.
- The purpose of the criminal justice system was to protect the rights of the innocents and punish the guilty, but nowadays the system has become a tool of harassment of common people.
- Indian judiciary is overburdened with huge piles of pending cases. According to Economic Survey 2018-19, there are about 3.5 crore cases pending in the judicial system, especially in district and subordinate courts, which leads to actualisation of the maxim “Justice delayed is justice denied.”
- According to National Crime Records Bureau (NCRB)-Prison Statistics India (2015), 67.2% of our total prison population comprises undertrial prisoners.
- Lack of transparency, at all levels but especially at lower levels, compromises with the justice delivery. Corruption, huge workload and accountability of police is a major hurdle in speedy and transparent delivery of justice.
- Police are not provided with enough freedom to take up the matter and investigate when the cases are high profile, in such scenarios, they are required to function at the will of the political class.
- Some penal code offences need to be dropped as they are not relevant today.
Various Committees and Their Report:
Malimath Committee Report:
Justice V.S. Malimath had been the chief justice of Kerala and Karnataka high court and was the head of this 6 member committee which was constituted in the year 2000 and submitted its reports three years later in the year of 2003. The Committee had opined that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.” The Malimath committee made 158 crucial suggestions, but none of them were accepted and implemented. Some of its major recommendations were:
Rights of the Accused:
A schedule to the Code be brought out in all regional languages so that the accused knows his/her rights, as well as how to enforce them and whom to approach when there is a denial of those rights.
Justice to the victims:
The victim should be allowed to participate in cases involving serious crimes and also be given adequate compensation.
Police:
- Separating the investigation wing of the police from its Law & Order Wing.
- Creation of National Security Commission, and State Security Commissions.
- For maintenance of crime data, appointing additional SP in each district was suggested.
- Organize Specialized Squads for dealing with organized crimes.
- Creating a Police Establishment Board for matters related to postings and transfers, etc.
- For probing inter-State or transnational crimes, a special team of officers must be constituted.
- Increasing the police custody period from current 15 days to 30 days and an additional period of 9 days for filing of charge sheet in cases of serious crimes.
Court and Judges:
- It suggested the increase in strength of judges and courts and reducing the vacations of court on account of long pendency of cases.
Investigative Practices:
- It felt the need of borrowing certain features of investigative procedures followed in countries such as Germany, and France.
- The judicial magistrate should be responsible to supervise the whole investigation and the courts should be granted the powers to summon anyone for examination if required, even if he/she is not listed in the witness list.
Right to Silence:
- The Article 20 (3) of the Indian Constitution should be amended in such a way as to allow the courts to infringe on this right of the accused and make him/her provide information which could go against himself/herself.
Innocence Until Proven Guilty:
- The practice of presuming the accused to be innocent and unreasonably burdening the prosecution to prove otherwise should be done away with.
- Instead, a fact should be considered as proven if the court is so convinced subject to its complete evaluation of all the matters in front of it.
Witness Protection:
- It suggested separate witness protection law so that safety and security of witness can be ensured and they can be treated with dignity.
Dying Declarations:
- It suggested the law to authorise the audio/video recorded statements, confessions, and dying declarations.
Public Prosecution:
- The creation of a new post of Director of Prosecution in each state who will ensure effective coordination between the prosecution wing and the investigation wing of the police, using the guidance of the Advocate General of that state.
- It is also recommended to appoint the public prosecutors and assistant public prosecutors by means of a competitive exam instead of departmental promotions. These appointees shouldn’t be posted in their home districts or where they are already practising.
Periodic review:
- A Presidential Commission was recommended for a periodical review of the functioning of the Criminal Justice System
Substitution of death sentence:
- Substitute with imprisonment for life without commutation or remission.
Victim Compensation Fund:
- A Victim Compensation Fund can be created under the victim compensation law and the assets confiscated from organised crimes can be made part of the fund.
Perjury:
- The witness must be fined and/or imprisoned and be tried if he/she is found to be providing false information so as to influence the natural course of the case.
Reclassify Offences:
Instead of the current system of categorzsing into cognizable and non-cognizable offences, the committee recommended 5 categories
- Economic Code
- Criminal Code
- Correctional Code
- Social Welfare Code
- Other Offences Code
Madhav Menon Committee:
N.R. Madhav Menon was the head of the 4 member committee entrusted to draft the “Draft National Policy on Criminal Justice”. The committee submitted its report in the year of 2007, advocating a complete overhaul of the whole criminal justice system of India. The draft contained some provisions that are recommended by the V.S. Malimath Committee, like re-categorisation of offences within IPC; creation of National Security Commission, and matters related to rights of the victims among others.
Major recommendations
- Empowering the victims and compensate the injury.
- Sentencing guidelines for purposive punishments.
- Re-classification of crimes and streamlining the procedure through rational classification of offences.
- Setting up of a Bureau of Criminal Justice Statistics, Research & Development.
- Setting up of a Board of Criminal Justice in the Union & States.
- Setting up of a National Authority to deal with crimes affecting National Security.
- A national strategy to reduce crime and finance infrastructure development.
- Criminal Justice Reforms in relation to advancements in science and technology.
- Affirmative action to safeguard interests of the weaker sections
The re-classification of offences as per this report should be on the basis of the following criteria:
- Social Welfare Offences Code: Punishment should not be the focus here, rather reparation and/or restitution be.
- Correctional Offences Code: Involving crimes that have the provision of imprisonment of up to 3 years and/or fines.
- Grave Offences Code: Involving crimes that have the provision of imprisonment of beyond 3 years and/or death.
- Economic Offences Code: For crimes that are related to economic security and other financial laws.
All the above 4 categories will contain the detailed nature of trial, rules of procedure, and types of punishments.
The committee also suggested for the creation of a victim compensation fund for those who turned out hostile due to the pressure from the culprits.
Supreme Court Directives:
In Prakash Singh v. the Union of India case, the Apex Court gave 7 directives to all the States and Union Territories for carrying out police reforms. The major aim of the directives was to free the police system from the unwarranted interference and pressure from the political rulers and do their duty with full self-accountability. The guidelines were as follows:
- Create a State Security Commission (SSC) for ensuring no unwarranted pressure or interference is exercised on the police by the respective state government. The SSC will also be responsible for evaluation of the performance of the state police and to institute broad policy guidelines.
- The DGP must have a minimum tenure of 2 years and should be appointed via a transparent merit based process.
- Superintendents of Police (SP) of a district, the Station House Officers (SHOs) of each police station and other police officials on operational duty must also have a minimum 2 years of tenure.
- Hive off the prosecution, investigation, law and order, and other functions of the police.
- Setup Police Establishment Board (PEB) for:
- Giving decisions on the matters related to police officials below the rank of Deputy Superintendent of Police (DSP), such as transfers, postings, promotions among other service-related matters.
- For police officers above the rank of Deputy Superintendent of Police (DSP), recommend upon the matters such as postings, and transfers.
- Create Police Complaints Authority (PCA) at:
- State Level: To enquire into and deal with public complaints against officers above the rank of Deputy Superintendent of Police (DSP) including the DSP itself, in matters of serious misconduct such as rape in police custody, grievous hurt, custodial death, etc.
- District level: With the same provisions and powers as above but for the police personnel who are below the Deputy Superintendent of Police (DSP) rank.
- For the purpose of selection and placement of Chiefs of CPOs (Central Police Organisations) with a minimum tenure of 2 years, create a National Security Commission (NSC) for constituting a panel for the said purpose.
Framework of Reform:
Accommodate the evolving society:
With the changes in the society, perspectives of people, and the nature of crimes, the laws need to evolve in accordance with the contemporary needs and aspirations of people.
Recognize New Crimes:
The restructuring of criminal laws is needed as many of the provisions have become obsolete with changing economic developments and technological advances. At the same time new crimes based on technology developed. Crimes like mob lynching, financial crimes, white-collar crimes, economic crimes, etc., have not found proper recognition in the IPC.
The construction of new offences and reworking of the existing classification of offences must be guided by the principles of criminal jurisprudence which have substantially altered in the past four decades.
Simplification of the Legal Process:
Reforms in criminal law are required to fulfil the democratic aspirations of the people and ensure speedy justice and simplify legal procedures.
Remove Ambiguity and Vagueness:
There is confusion in some definitions. For instance, the distinction between ‘culpable homicide’ and ‘murder’ is criticized for their obscure definitions.
Ensure Individual Liberty Against State Arbitrariness:
In a criminal justice system, since an accused as an individual is pitted against the might of the state, criminal law must ensure that the state does not take undue advantage of its position as a prosecutor.
Victim Protection:
The reason for victimisation ought to be given a major thrust in reforming laws to identify the rights of crime victims. Launch of victim and witness protection schemes, use of victim impact statements, increased victim participation in criminal trials, enhanced access of victims to compensation and restitution.
Add New Punishments:
New types of punishments like community service orders, restitution orders, and other aspects of restorative and reformative justice could also be brought into its fold.
Streamlining IPC & CrPC:
The classification of offences must be done in a manner conducive to management of crimes in the future.
Remove Overloading of Chapters:
Many chapters of the IPC are overloaded at several places. The chapters on offences against public servants, contempt of authority, public tranquility, and trespass can be redefined and narrowed.
Decriminalization of Certain Offences:
Decriminalization takes away the status of criminal law from those acts to which it is applied. This means that certain acts no longer constitute criminal offences. Following decriminalization, the act still is illegal, but those acts are no longer criminal offences.
Recent Developments
111th, 128th & 146th Parliamentary Standing Committee report had recommended that there is a need for a comprehensive review of the criminal justice system of the country. Union Home Minister Mr. Amit Shah has sought suggestions to make the criminal laws of India more people-centric. The suggestions have been primarily sought from various stakeholders like Chief Justice of India (CJI), Chief Justices of various High Courts, Governors, Chief Ministers (CMs), and Members of Parliament (MPs), etc.
Case Laws:
Navtej Singh Johar v. Union of India 2018:
Supreme Court struck down Section 377 of the Indian Penal Code (IPC), which criminalised consensual sexual intercourse between persons of the same sex for being “against the order of nature”. By this judgment Court upheld the right to equal citizenship of all members of the LGBTQI community in India.
Joseph Shine v. Union of India, 2018:
The Supreme Court struck down Section 497 of IPC which criminalised adultery while treating = a married woman as the commodity of her husband. The court held that the provision was based on gender stereotypes and hence violated Article 14 (equal protection of laws) and Article 15 (non-discrimination on grounds of sex) of the Indian Constitution.
Anuradha Bhasin v. Union of India (2020):
One of the issues in the case was regarding the excessive imposition of Section 144 of the Code of Criminal Procedure, 1973. Supreme Court held that Section 144 CrPC cannot be used as a tool to prevent legitimate expression of opinion. The court further held that Section 144 CrPC is not only remedial but also preventive and shall be exercised only in cases where there is danger or apprehension of danger.
Amish Devgan v. Union of India (2020):
In this case of hurting religious sentiments of community, sections concerned included Section 153B and Section 295A of the Indian Penal Code, 1860. Supreme Court held that it is important to make a difference between free speech and hate speech. While free speech does comprise the right to criticize government policies, hate speech refers to the spreading of hatred against a group or community.