The recent tabling of Bills on criminal laws has become a causa celebre. In as much as they set overdue reforms into motion, the Bills do well to amend the substantive criminal law as codified in the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and Indian Evidence Act (IEA). The offences and procedures outlined in the IPC or CrPC represent just one facet of a general criminal law and its vital to recognise that the most critical offences and procedures are encompassed within the Special and Local Laws (SLLs).
Keeping SLLs away from the ongoing reform process is a major drawback. SLLs have immense quantitative and qualitative relevance in the Indian criminal justice system.
To illustrate, nearly 39.9% of all cognisable offences registered in 2021 were under SLLs. As per the Crime in India Statistics of 2021, of the total of nearly 61 lakh cognisable offences registered, 24.3 lakh offences were registered under SLLs alone. On the qualitative side, SLLs have given rise to several fundamental and pertinent debates, discourses and discussions regarding the limits on the state’s power of criminalisation especially in the context of violation of individual rights and liberties.
Need for reform in SLLs
The substantive issues in SLLs are not only abundant but also varied. On the one hand, SLLs such as the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) suffer from glaringly deficient, ambiguous and vague definitions of offences and terms such as ‘terrorist act’, ‘unlawful activity’, ‘organised crime’, ‘organised crime syndicate’ etc. The Protection of Children from Sexual Offences Act, 2012 is increasingly being criticised for its applicability to consensual sexual activities between minors. Concerns have also been raised regarding criminalisation of such conduct through SLLs which would otherwise fall squarely within the domain of civil wrongs or at best, regulatory wrongs. To illustrate, the Supreme Court in the case of P. Mohanraj versus M/s Shah Brothers Ispat Ltd. (2021) referred to Section 138 of the Negotiable Instruments Act, 1881 as a ‘civil sheep’ in a ‘criminal wolf’s’ clothing.
Procedurally too, it is through SLLs that universally accepted due process values are increasingly being diluted. Increased powers of search and seizure under Section 43A of the UAPA and the admissibility of confessions recorded by police officers under Section 18 of the MCOCA are prime examples. The stringent provisions provided for under Section 43(D)(5) of the UAPA, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 45 of the Prevention of Money Laundering Act (PMLA) 2002 make the grant of bail a near impossibility.
An all encompassing legal code
Between the enactment of the IPC in 1860 and today, there has been a major shift in the canvas of criminal laws. The increasing enactments and application of SLLs represents an understanding of criminal laws which is out of sync with the original project of codification. The shift, in this sense, represents a major move from the idea of a complete codification of all criminal laws inspired by Bentham’s idea of a “Pannomion” — an all comprehensive collection of rules codified in a single place. The IPC was thus conceived to be more than just a legal digest — it was meant to contain within its pages all criminal laws of the time.
At the time of its drafting, it was expected that the IPC would be suitably amended in situations requiring the creation of new offences, clarification of existing offences, and removal of inconsistencies. It is true that the IPC today is criticised for the retention of an archaic morality as well as the colonial roots which underpins many of its offences. The challenges to homosexuality under Section 377 in Navtej Johar versus Union of India (2018) and sedition under Section 124A in S.G. Vombatkere versus Union of India (2022) are all symbolic of the need to reform several aspects of our criminal laws. Nonetheless, it is hard to argue that as far as the idea of codification is concerned, the penal experiment in the form of IPC and CrPC has been unsuccessful.
As successive governments place increasing reliance on the SLLs for a variety of reasons, it becomes imperative that the same should not be allowed to overpower the idea of codification of penal laws as imbibed in the IPC as well as the CrPC. All SLLs which criminalise/seek to criminalise a conduct should find a place as separate chapters within the larger structure of the penal code. All SLLs which create a separate procedure for reporting of offences, arrest, investigation, prosecution, trial, evidence and bail must be included either as separate procedures within the CrPC or as exceptions to the general provisions provided therein.
Non-inclusion of the substantive and procedural aspects of the SLLs in the ongoing reform project is a serious limitation. It is imperative therefore that a second generation of reforms be brought in, in order to address the lacunae.
G.S.Bajpai is Vice-Chancellor of National Law University Delhi. Ankit Kaushik is Assistant Professor at RGNUL, Punjab. Views are personal.
