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Polity & Governance
Mahesh

11/11/23 20:44 PM IST

Bharatiya Nagarik Suraksha Sanhita Bill

In News
  • The Government has introduced three Bills to replace the core laws, i.e., the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act (IEA), 1872, which form the basis of the criminal justice system.
Concerns related to the new bill
  • First, whether these Bills exclude civil law. Usually, criminal law deals with issues that are seen as an offence against the broader society or state while civil law deals with loss to a person. However, the CrPC includes provisions for maintenance of wife and children after divorce.
  • It also allows compounding of some offences by the affected person, which means the accused person is acquitted. For example, a person who is cheated may decide to acquit the accused person.
  • The question is whether such matters should be dealt with under the civil code. The new Bills retain these provisions.
  • Second, whether these Bills create a reformative system rather than a punitive system. There is a move towards this by making community service as a form of punishment.
  • However, several minor offences (such as keeping an unauthorised lottery office, which carries a maximum penalty of six months imprisonment) are not compoundable, which means they will go through the process of trial and conviction.
  • Third, whether maintenance of public order and the process of criminal prosecution should be in the same law.
  • The CrPC has provisions charting out the process of arrest and trial as well as items such as Section 144 that empower the district magistrate to impose various restrictions. The new Bill retains this structure.
  • Fourth, whether various directions of the Supreme Court of India have been codified in these proposed laws. The Bill codifies the procedure for mercy petitions. However, there is no codification of various directions related to arrests and bail
  • Fifth, whether the Bills try to ensure consistency of implementation. Typically, penalties for offences specify a range, with the judge expected to specify the sentence within the range based on the circumstances of each case.
  • However, for some offences, the range may be very wide; for example, the punishment is upto 10 years imprisonment if a person cohabits with a woman whom he falsely convinces that he is married to her. That is, the judge may pronounce a sentence anywhere between one day and 10 years. The new Bill retains such wide ranges.
  • Sixth, whether the age provisions have been updated for modern norms. The IPC specifies that a child below the age of seven years cannot be accused of an offence.
  • It provides such exemption until 12 years of age, if the child is found not to have attained the ability to understand the nature and consequences of his conduct. The question is whether these age thresholds should be raised.
  • Seventh, whether gender related offences have been updated. The Bill is in line with the Supreme Court judgment which struck down the offence of adultery.
  • Section 377 of the IPC, which was read down by the Court to decriminalise same sex intercourse between consenting adults has been dropped; consequently, the parts retained by that judgment including rape of a male adult and bestiality have also been removed.
  • The Justice Verma Committee, in 2013, had recommended making marital rape an offence; this has not been done.
Provisions of the bill
  • The Bill replacing the IPC provides a person suffering from mental illness as a general exception from being an offender (this was called unsound mind earlier).
  • The definition of mental illness is the same as in the Mental Healthcare Act, 2017.
  • That Act aims to provide medical treatment to persons suffering from mental illness, and, therefore, excludes mental retardation or incomplete development; it also includes abuse of alcohol or drugs.
  • Consequently, the new Bill will provide full exemption to someone who is addicted to alcohol or drugs but not to a person who is unable to understand the consequences of their actions due to mental retardation.
Way forward
  • The three laws had a number of illustrations from daily life to clarify their provisions. Some of these illustrations have become obsolete but have still been retained.
  • These include people riding chariots, firing cannons and being carried on palanquins.
  • It may be useful to update these illustrations to events from modern life.
  • These Bills will become the basis of the criminal justice system. Parliament should examine them with great care so that they create a fair, just and efficient criminal justice system.
Source- The Hindu

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