The beauty of law is its perpetual evolution and a symbiotic relationship with the concept of truth and justice. Law and justice must evolve constantly to serve the holy ideal of truth. It need not bother with the petty politics around it.
The proposed reforms by union home minister Amit Shah must be analysed in the same spirit. The question must be – whether the baggage can be shed without disrupting the spirit of Indian constitutionalism and its progressive journey.
The problems with the colonial baggage of India’s justice delivery system are aplenty. The sweeping reforms proposed by Shah seek to address the malaise to a great extent. The Centre has proposed an overhaul of the Criminal Procedure Code (CrPC, Indian Evidence Act and Indian Penal Code (IPC).
Indeed, these 18th-century laws have been amended on different occasions. But the changes and overhaul in the IPC, CrPC and Evidence Act, if passed by parliament, will be the biggest overhaul after independence. These three laws form the core of the criminal legal process in independent India.
Some aspects worthy of mention include the repeal of the sedition law, stringent sentencing in rape cases, and introducing mob lynching as a separate offence. The central government also seeks to renumber the provision, which means murder will not be under Section 302, and rape will not be defined under sections 375 and 376. It also seeks to add some fuel to the slow pace of justice delivery in India.
These are mere proposals at this point. The draft legislations have been referred to a select committee and, after scrutiny, the Centre may or may not decide to make further changes. But a cursory glance over the proposed changes makes one wonder if the government has given more weightage to optics than substance.
For example: the renumbering of the IPC could create a lot of avoidable confusion. There is already a decisive developed jurisprudence on different sections – various judgements of the Supreme Court that interpret key sections of the IPC, reforms that have been cemented by the judiciary through interpretation. All of that will be disturbed, in a sense.
Second, the nomenclature of the three acts in Sanskrit or Hindi has invited unfortunate politics around the issue. The DMK has already taken objection to the Hindi titles. This unfortunate politics will take the attention away from serious legal and political discussion, which must happen around a sweeping reform of this nature.
Much of the debate and discussion will focus on the repeal of sedition and the introduction of proposed new sections that classify “offences against the state”. But the proposed reforms are way beyond sedition. To make the discussion sedition-centric will be rendering it disproportionate attention.
The real colonial baggage of the Indian judicial system is concluded in the old adage: ‘Process is the punishment’. Colonial baggage cannot be shed without implementing police and judicial reforms. Until the police force has more men and women, or there are more judges in trial courts and respectable infrastructure for local courts in villages, districts and tehsils, the colonial baggage will stay.
Colonial baggage makes ‘justice’ accessible only to the privileged and fails to empower the poorest. Until justice, legal processes and courts are readily accessible only to the privileged and are intimidating for the common citizen, colonial baggage will remain intact.
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