Essay on What Changes Should Be Made In Indian Criminal Law for Making it More Responsive and Effective !
From the point of view of social perspective and suppression of criminality the following changes in the Indian criminal law and procedure may be suggested to make it responsive to the needs of the Indian society:—
(1) The existing law does not sufficiently provide for reparation or compensation to victims of the crime for injuries caused or loss suffered by them due to the offender’s criminal act. Punishment of the accused may offer some consolation to the victim but it offers no pecuniary satisfaction to him. It is, therefore, desired that compensation be awarded to the injured parties particularly, in cases of crime relating to property.
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The payment of compensation may be made from the money recovered by the State from the offender by way of fine. It is further suggested that imposition of heavy fines instead of imprisonment in case of crimes relating to property seems to be a rational policy in the present context of penological development.
It is heartening to note that more recently, a judicial trend is developing to award compensation to the victims of police atrocities or deaths or serious injuries caused due to use of third degree methods by police officials. The compensation is to be paid by the guilty official who is accountable for these wrongs.
(2) The existence of double sets of law for certain offences present difficulties for the magistracy to determine punishment for offenders in such cases. For example, the law relating to bribery in India is governed by two different sets of laws, namely, Section 161 of the Indian Penal Code and the Prevention of Corruption Act, 1988.
So also is the case with the offences relating to trafficking in girls and minors for immoral and illegal purposes. It is therefore, desired that dichotomy of legal provisions for the same offences should be avoided to make sentencing more definite and effective. The other examples are adulteration laws, pollution laws, nuisance etc.
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(3) In view of the changed socio-economic conditions of the present time, there is an urgent need to re-classify the offences contained in the Indian Penal Code. With the growing political indiscipline in the country and criminalisation of Indian politics, it has become necessary that political offences be included in the Penal Code under a separate chapter.
The cases of defections resort to corrupt practices, booth-capturing, rigging, etc., during election campaigns and such other offences should be made severely punishable under the Penal Code itself. Likewise, white collar crime should also find place in the Indian Penal Code under a distinct head.
Speaking about the magnitude of corruption in India, Bertrand de Speville, the International Anti-corruption expert who was appointed as consultant to the State Government of Andhra Pradesh, (May 2001) was startled to find corruption so rampant in almost every department of the State Government. According to him, it is either need or greed which is responsible for making an individual a corrupt person and it is not correct to think that rich people are less corrupt and poor people are more prone to corruption. Greed is the motivation for corruption for everyone.
(4) Crimes relating to person should be punishable with a term of imprisonment while those relating to property should preferably be punished with fine or reparation of damages to the affected parties. Unwanted long terms of sentences should be avoided to make rehabilitation of the offender possible after his release.
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Likewise, too short a sentence will also defeat the object of punishment. A rational policy in this regard would be to determine the term of sentence according to the gravity of crime, sociology of the offender and his personality traits.
(5) As to the retention or abolition of capital punishment, the generally accepted view is that its abolition should not be over-emphasised. The retention of death sentence undoubtedly serves as an efficient deterrent for recidivists and hardened criminals. The retention of this penalty in the statute book is further justified on the ground of protection of society from dangerous and incorrigible offenders.
It would therefore, be expedient to retain death penalty, though in practice, it may be sparingly used in rarest of rare cases as held by the Supreme Court in the historic case of Bachan Singh v. State of Punjab. This contention also finds support in the report of the Law Commission of India.
(6) The modem western trend favours deletion of all such offences from the Penal Code which are solely dependent on morality. In England, homosexuality is no longer an offence if committed in non-public place. Likewise, in India many States have scrapped prohibition laws because they are convinced that it is difficult to put a check on liquor habits of people by imposing external legal restrictions unless the liquor addicts themselves voluntarily give up drinking being convinced that it is a vice.
So is also the case with gambling and “Satta” etc., which have become a common menace these days. It is true that there are many offences which cannot be suppressed by legal penalties alone unless the members of society voluntarily begin to think that what they are doing is morally wrong and against social interest.
However, keeping in view the Indian taboos it is difficult to agree with the western view that most sex-offences should be deleted from the statute book because they largely depend on moral perceptions. Unquestionably, this cannot be recommended as an effective measure to reduce sex-crimes in India.
(7) Elimination of violence against woman should be among the priorities in the field of crime prevention and criminal justice administration. The Model Strategies formulated under the UN Declaration on the Elimination of Violence Against Women (1993) have been adopted in India in the form of Prevention of Domestic Violence Against Women Act, 2005, which provides that any act of gender biased violence that results in or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life must be sternly dealt with.
Many quarters suggest that the Act is gender-biased and provides for preferential treatment to women but in fact, it is not so. The Act aims at ensuring that any inequalities or forms of discrimination that women face in achieving access to justice, particularly in respect of acts of violence, must be redressed.
(8) Though the Habitual Offenders Act in various States provide for regulatory measures such as reporting by the habitual offender about his whereabouts or residence at fixed intervals, domiciliary visits of police officers to the residence of potential offenders, externment, security bond under section 110 of the Code of Criminal Procedure, 1973, etc., but these measures have not proved to be very effective in controlling recividism.
Therefore, it would be advisable to set up corrective institutions on the pattern of Maharashtra and Uttar Pradesh for selective offenders keeping in view their age, health, antecedents for their rehabilitation and re-socialisation. Suitable work or vocational training may be provided to inmates in these correctional institutions.
(9) It has been realised that vagrancy may be a potential source of criminality. The English and the American criminal law have made statutory provisions in their vagrancy laws to keep the suspects and undesirable persons well under control and prevent them from indulging into disorderly behaviour.
In India, during the East India Company rule, Regulation X of the Bengal Regulation XXII of 1873 provided that the police could apprehend a person who was without any means of subsistence and who could not give a satisfactory account of himself and the magistrate was empowered to employ such person for some ‘public work’.
During the British rule in India, Section 109(b) of the Code of Criminal Procedure, 1898 empowered a magistrate of the first class to secure bond with security for good behaviour for a person who was of doubtful antecedents.
No such provision is, however, incorporated in the Code of Criminal Procedure 1973. It is therefore; felt that an anti-vagrancy law may be enacted in the country to prevent vagrants from being turned into criminals. It would be a forward step towards crime prevention.
(10) The misuse and abuse of the law of preventive detention such as FERA, MISA, COFEPOSA, etc., in recent years particularly during emergency period, have led to serious re-thinking to repeal these statutes. In most of the cases, the final authority for detention is the officer-in-charge of the police station whose report is generally rubber-stamped in turn by Superintendent of Police or the District Magistrate. The law relating to preventive detention therefore, needs to be modified so as to prevent its abuse and misuse.
The recent judgment of the Supreme Court handed down in Rekha’s case decided on 6th April 2011 prohibiting the use of preventive detention for offenders who are charged with any offence under the Indian Penal Code or any other special or local penal criminal law, is indeed a welcome step in the direction of preventing misuse of preventive detention law by the police or the investigating authorities.
The Court ordered the release of petitioner Rekha along with seven others who were placed under preventive detention law since April 2010 on charges of selling date expired drugs and quashed the order of the Madras High Court and allowed the appeal.
(11) The system of collection of intelligence and reporting should be overhauled so that facts are reported correctly. Many a times persons prompted by evil motives such as spite, jealousy, anger and self-interest do not even hesitate to set the law into motion against their enemies or rivals. Therefore, if the intelligence and police personnel perform their duties honestly without being influenced by external pressures or party politics, then only respect for law enforcement agencies can be restored.
(12) Undoubtedly, crime control is the responsibility of police agency but there is need to recognise the role and importance of State agencies other than the police, such as customs and excise officials, revenue authorities, and medical and other social service agencies in prevention of crime. They may help in dealing with particular offences, offenders and victims pertaining to their respective field.
For example, in drug-trafficking the Customs and Excise professionals may be involved. Similarly, corporate offences, may involve factory officials or environmental agencies. The active cooperation of these State agencies in prevention of crime pertaining to their respective field will certainly help the police agency in its crusade against crime prevention.
It must be stated that crime problem is a complex and complicated one. The crime results from multiple factors intricately inter woven with one another. Therefore, efforts of police alone to control crime will meet with limited success, unless there is a multi-pronged attack from different agencies of society and also an Endeavour is made to eradicate the real causes of crime, like poverty, ignorance, unemployment, deprivation etc.
(13) Frequent interference in investigation of cases by politicians or politically motivated prosecuting machinery headed by politician lawyers who are more interested in party in power, has distorted the image of criminal law administering agencies, particularly the police. Therefore, there is a manifest need for determined efforts to deal with this problem more effectively.
(14) Crime reporting in India continues to be faulty even to this day. As a result of this, crimes are either suppressed, minimised or not reported. The reporting procedure therefore, needs to be overhauled.