Crime and Punishment

THE NUMBER OF criminal cases pending before high courts is 1.7 million. Almost 4,00,000 are pend­ing for more than 10 years. Before district courts, 33.4 million criminal cases are pending, more than three million pending for more than three years. The dif­ference between civil and criminal is not always obvious to the non-lawyer. It has less to do with the act one is aggrieved about, and more to do with who reacts to the affront. Defamation is a case in point. If someone says something scurrilous about me, I can choose the path of either civil or criminal defamation. If a matter is civil and someone has been uncivil, I become the plaintiff and the other party, with my having approached the court, becoming the defendant. As the case trundles its way through the labyrin­thine maze of courts, procedures followed are those of CPC (Civil Procedure Code). But if it is a ‘crime’ I am aggrieved about, I take the matter to the government, that is, the government’s repre­sentative in the form of the police. Under normal circumstances (there are always exceptions), I don’t try to exact vengeance by beating the offender on the head. After all, in civilised and modern societies, government alone exercises a monopoly in the use of force. As a victim, when I complain to the police, there is an FIR (First Information Report). The police investigate and the public prosecutor represents the government (state) in court, presenting evidence. Un­like CPC for civil cases, the procedure followed is that of the CrPC (Criminal Procedure Code). The current CrPC is from 1973, although its antecedents go back to 1882.

Whether there has been a ‘crime’ is determined by the Indian Penal Code (IPC, 1860), and evidence is submitted according to the Indian Evidence Act (1872). IPC and the Evidence Act are obviously old. But, despite amend­ments, so are the roots of CrPC. Re­cently, all three statutes have been in the news because they will eventually be repealed and replaced. IPC will yield to Bharatiya Nyaya Sanhita (BNS), CrPC to Bharatiya Nagarik Suraksha Sanhita (BNSS) and Indian Evidence Act to Bharatiya Sakshya Sanhita (BSS). In Sanskrit, sanhita means collection. Since these are collections of clauses or sections, ‘Sanhita’ isn’t a misno­mer, though my usual inclination is to render it in English as Sam­hita. Had I been asked to translate ‘Code’ (as in CrPC or IPC, that is, the body of law), I would probably have used the word ‘Smriti’ and caused great confusion. And I would have translated ‘Act’ (as in Evidence Act) as ‘Adhiniyama’, causing even greater confusion. Who can object to the use of the word ‘Bharatiya’? After all, one isn’t talking about the Pakistan Penal Code. For those who don’t know, Section 420 in the Pakistan Penal Code is on “cheating and dishon­estly inducing delivery of property”. But notice that ‘nyaya’ isn’t a straight translation of ‘penal’. Penal has a sense of punishment; Nyaya conveys a nuance of justice. ‘Sakshya’ is of course evidence, but Nagarika Suraksha isn’t Criminal Procedure. Such shifts in nomenclature are clearly intended, not inadvertent.

What happens in a criminal trial? Our impressions are often based on fictional depictions in films and television series, vivid, but vacuous. An actual case is more complicated. For a start, there is a difference between bailable and non-bailable offences, bail being a matter of right in the former. There is a difference between cognisable and non-cognisable; the po­lice officer can arrest without a warrant in the former. Which offence belongs to what category is explained in CrPC. As a rule of thumb, if punishment is imprisonment for less than three years, the offence will be both bailable and non-cognisable. If it is for more than three years, it will be non-bailable and cognisable. The flowchart for a crimi­nal trial can be awfully messy. Let’s stick to a cognisable offence. One, a complaint is made to the police and an FIR is registered. Two, there can (not will) be an arrest, with police custody/ judicial custody and issues of anticipa­tory bail and bail. Three, after investiga­tion, if police decide there is preliminary evidence of the offence, a chargesheet is filed. Four, there is a trial, with evidence by pros­ecution (cross-examination by accused) and evidence by accused (cross-examination by prosecution). Five, after arguments, there is a judgment. Six, thereafter, a sentence is pronounced. Seven, finally, there can be appeals.

Drafting is always best if done from first principles, not a tweak here and a tweak there. (In 1837, Macaulay was first principle-based.) More than 80 per cent of BSS and BNSS are straight lifts from the Evidence Act and CrPC. We should have done better

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Despite what I said about vapid depictions in films, some films have given us great quotes. “Tareekh pe tareekh” from Damini is clichéd and Damini was made in 1993, 30 years ago. Made in 2013, Jolly LLB is more recent. Boman Irani was opposing coun­sel, so to speak, and he said, “Yeh court hai Mr Tyagi, yahan kuchh jaldi nahi hota (This is a court Mr Tyagi, nothing happens quickly here)”. Precisely. Tyagi was Advocate Jagdish Tyagi or Jolly. Saurabh Shukla was Justice Sunderlal Tripathi and he famously said, “Kanoon andha hota hai, judge nahin (Justice is blind, not the judge)”. Precisely again. At the risk of some simplification, in civil law jurisdictions, it is the judge’s job to discover the truth. In adversarial com­mon law jurisdictions, it is not the judge’s job to discov­er the truth. The judge decides on the basis of evidence presented and proved, even if that evidence is faulty and false. The National Crime Records Bureau (NCRB) is a source for data on crime. Aggregated upwards from states, this gives us crime data segregated according to IPC crimes and SLL (Special and Local Laws) crimes. Roughly, only 60 per cent of cognisable crimes are IPC crimes. What is SLL? There is the special bit, like arms, narcotic drugs and psychotropic substances, immoral trafficking. There is the local bit, like Excise Acts. The three new Bills don’t address such crimes. They should be addressed through other means, such as decrimi­nalisation attempts through the Jan Vishwas Bill.

BSS and BNSS address procedures of a crimi­nal trial. Earlier committees (Malimath in 2003, Madhav Menon in 2007) argued for such changes. This time, drafts have been prepared by the National Law University, Delhi. Who can complain about provisions on definition of documents, digitisation and video re­cording in BSS? Or procedure for zero FIR, summary trial, 90 days for chargesheets, 30 days for judgments, two adjournments, automatic bail, witness protec­tion, commutation, confiscation of property related to crime, and disposal of case property in BNSS? But two caveats. First, drafting is always best if done from first principles, not a tweak here and a tweak there. (In 1837, Macaulay was first principle-based.) Despite changes to reflect the changing times, more than 80 per cent of BSS and BNSS are straight lifts from the Evidence Act and CrPC. In Amrit Kaal, we should have done better. Incidentally, in Sanskrit, there are no satisfactory words (only concocted ones) for lawyer or adjournment. But texts on dharma come down heavily on perjury, rarely punished in contemporary India. Second, the experience with CPC amendments, where promised gains didn’t materialise, thanks to courts, suggests that euphoria be muted.

This leaves BNS. Again, more than 80 per cent is copy and paste. The intention is to define ‘crime’ and decriminalise those that shouldn’t be, like Section 377. Or increase penalties for oth­ers—organised crime, sex on false pretences, gangrape, lynching, snatching, hit-and-run, initiating children into crime. More precise the drafting language, less the scope for litigation and judicial in­terpretation. Though the expressions haven’t exactly been used, sedition and treason fail this test. If we waited this long, we could have done with better drafts.

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Bibek Debroy

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