It is a great honour for me to be writing on criminal law for the new “Know Your Rights” series started under The Leaflet banner. In criminal law, knowing our rights would be to create an understanding of various penal laws, specifically the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act. All the three subjects are interconnected and collectively, they elucidate the rights under the criminal law. The flowing link between the three enactments gives the complete legal education about the criminal law.
Another essential branch to understand the criminal law is the constitutional principles laid down in the Part III of the Constitution. In other words, we can say that the constitutional principles laid down in Part III is the soul of criminal law. The substantive and the procedural criminal law has to be tested on the touchstone of Articles 14 and 21 of the Constitution of India.
As it is, the criminal law practically curtails the constitutional guarantee of life, liberty and equality in the most raw and naked form. For example, when a person is arrested or detained under preventive laws, the action of the State curtails his right to life and liberty, guaranteed by the Constitution. The detention under the recent preventive laws destroys the right to live with dignity, when under the prison walls. The right to fair trial by the procedure established by law is the right guaranteed under Article 14 of the Constitution. The arbitrary actions of the State in detaining under preventive laws, torturing of the detenu in custody and imposing impossible conditions for executing bail are few examples of violation of rights guaranteed under the Constitution.
The criminal law which publicly labels an individual as a “criminal” must maintain a balance between the interest of the State, especially the case of the victim, and the interest of the individual. In other words, any harmful conduct which is condemned under criminal law needs to be judged in terms of its effect on valued interests, which may be an individual interest, victim interest or some form of collective interest. This essentially involves a few parameters to be considered how the criminal law ought to be interpreted, its effects on the existing society and when it should be used and when not. Definitely, we can hope for the law-abiding society voluntarily abstaining from crime, but in the present society, we can not forget the great importance of this branch of law for the security of life, property and maintenance of law and order in the State.
The specific branch of criminal law, the Indian Penal Code,1860 (IPC), was drafted in the mid-nineteenth century by Lord Thomas Babington Macaulay and his colleague law commissioners. The colonial writers of the IPC have considered the notions and concept pertaining to crime and criminal liability from the then prevailing philosophical as well as theological values and precept of the United Kingdom. The behaviour of the individual which was judged as socially unacceptable and declared punitive was well perceived in India for about 150 years of its operation. The IPC has remained almost unchanged as it was legislated in 1860. We can see only minimal changes in the IPC through these decades and the human conduct declared as anti social under IPC by the colonial writers was widely accepted by India even after the adoption of the Constitution in 1950.
Though, the various sections of IPC were found in direct conflict with the constitutional guarantees, it’s only now that we see some of the sections challenged under constitutional law and are being either read down or struck off altogether. For example, Section 377 of IPC, criminalising “sex against the order of nature” was read down on September 6, 2018 after a long battle in the courts, while Section 497, pertaining to adultery, has been decriminalised altogether.
Modern theories of criminology as well as the landmark judgments of the Supreme Court of India have, fortunately, considered crime as the harmful behaviour that needs to be redressed. Therefore, the retributive theories are increasingly being swapped for their reformative counterparts, wherein reforming the prisoners get greater precedence. This is in sharp contrast with the 19th century concept that crime is sinful, wrongful or immoral behaviour that must be punished. It has now been widely accepted that forcible incarceration often has a negative effect on persons and the new concept of keeping the prisoners in open jail rather than in solitary confinement, keeping them on probation, has seen substantial ability of the convict to reform.
The immense scientific developments of the 20th century have had a massive impact on the procedural laws under criminal law, following which major amendments were made in procedural law — such as trial by video conferencing, video recording of statements and use of scientific methods in detection of crime etc. However, many actions or misconduct in the modern society are overcriminalised e.g. the concept of mens rea is largely replaced by the concept of strict liability.
The major breakthrough seen in this era under IPC is when the LGBTQI community had a triumphant victory for their human rights after the community, represented by human rights lawyers, knocked the doors of the Superior Court of India. The Supreme Court on September 6, 2018 with the majority view decriminalised Section 377 of IPC and held it unconstitutional, to the extent that it criminalises consensual sexual acts of adults in private. For more than 70 years since Independence, long after the framers of the Indian Penal Code left India and fundamental rights were framed with guarantees in the Constitution, the rights of the LGBT community remained criminalised. The criminalisation of LGBT community under Section 377 of IPC, though violative of constitutional guarantees, remained buried under conservative ideology of heteronormativity. This was one stupendous example of how rights can be shrunk under criminal law because of ideological positions, and therefore constant interrogation of all fields of law, especially criminal law, in the light of justice and human rights, must be undertaken.
It is in this spirit that the “Know Your Rights” series has been designed under The Leaflet banner. The attempt is to awaken the people of India to be aware of their rights under the various provisions of law before it is too late. This is especially true for members of minority and vulnerable communities, who are targeted by the penal system much more conspicuously than members of majority community. The Leaflet is interested in popularising the rights framework and take it to the layperson, so that no one is victimised in the name of punishing crime or retributive justice.
A criminal trial is but a quest for truth where presumption of innocence has to be balanced with the rights of the victim along with the societal interest for preservation of the rule of law. In furtherance of the noble endeavour initiated by The Leaflet, this column on criminal law will be a longstanding project, and I will do my best to share my experience regarding criminal trials and, in particular, about fair investigation, fair trial, rights of victim, rights of accused, the idea of “reverse burden of proof”, and “negating the right of bail under special laws”. Some of these ideas I will be taking up in my column next week. Hope readers will find this column interesting and engaging. In case of any queries, feel free to leave a comment or a question.