Menaka Guruswamy on Centre’s criminal code bills: Weakening criminal law’s guardrails

Menaka Guruswamy on Centre’s criminal code bills: Weakening criminal law’s guardrails

One of the general patterns in India’s criminal law is that offences that are particularly difficult to regulate and especially elaborate in their organisation internally, while having a large-scale impact on society, are addressed by “special statutes”. These special statutes, while being harsh in punishment, are rigorous in the procedural safeguards they offer the accused. The emphasis is on checks and balances in the state’s quest to prosecute and the accused’s efforts to defend herself.

Any detraction from the procedural protections that general criminal law offers will have checks in place in these special statutes. There is a deviation from this general pattern with the introduction on August 11 of three Bills in the Lok Sabha by the central government. These Bills are intended to dramatically change criminal law.

The Bharatiya Nyaya Sanhita, 2023 (to replace the Indian Penal Code, 1860), the Bharatiya Nagarik Suraksha Sanhita, 2023 (to replace the Code of Criminal Procedure, 1973) and the Bharatiya Sakshya Bill, 2023 (to replace the Indian Evidence Act, 1872) have been tabled in the lower house of Parliament. In my previous column (‘The custody question’, IE, August 19), I discussed reforms — both positive and negative — to the Bharatiya Nagarik Suraksha Sanhita, 2023.

This law reform effort by the State is at odds with the established legislative practice of having separate and distinct harsh “special statutes” with procedural checks and balances. The current effort shows that special laws are being absorbed into general criminal law — without any of the necessary procedural safeguards. This will make it impossible for the accused to defend herself and will bring within the criminal process many innocent people, for whom the process will be punishment and for which very few convictions will be returned. This is worrying — for the purpose of criminal law is not to persecute, but to prosecute ably, while affording the accused a fair chance to prove their innocence.

Let me illustrate my point. Special legislation includes statutes like the Prevention of Money Laundering Act, 2002 (PMLA) and the Maharashtra Control of Organised Crime Act, 1999 (MCOCA). Both statutes are illustrations of special legislation intended to combat alleged offences that are elaborate in how they are planned and fulfilled. While the punishments are harsh, both attempt to have some balance in the form of procedural safeguards.

The PMLA law has many deficiencies — we will discuss the effort to bring in “money laundering”, a special law offence, into general criminal law through the criminal codes in subsequent columns. In this column, I will focus on the “organised crime” provisions that have been introduced into a general criminal law statute like the Bharatiya Nyaya Sanhita, 2023 (BNS). At present, organised crime is principally dealt with by the MCOCA, which is applicable in both Maharashtra and the National Capital Territory of Delhi. Other states have their own versions of MCOCA. However, the BNS brings it into general criminal law by having provisions that define and punish organised crime within this statute.

The BNS brings organised crime within Chapter VI of the Code that pertains to “offences affecting the human body”. In the IPC, the equivalent chapter that pertains to “offences against the body” included classic criminal offences like murder and culpable homicide not amounting to murder. Within this classical framework is introduced the rather elaborate offence of “organised crime syndicates”. As per the BNS, an organised crime syndicate means “a criminal organisation or group of three or more persons, who acting singly or collectively in concert, as a syndicate, gang, mafia or crime ring, indulging in commission of one or more serious offences or are involved in gang criminality, racketeering and syndicated organised crime”.

The BNS defines “organised crime” as being “any continuing unlawful activity including kidnapping, robbery, land grabbing, contract killing, economic offences, drug or human trafficking, weapons or prostitution either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect material benefit including a financial benefit.”

Also included within this fold are economic offences, which include criminal breach of trust, forgery, counterfeiting of currency and valuable securities, financial scams, running Ponzi schemes, mass marketing fraud or multi-level marketing schemes with a view to defraud people at large for obtaining the monetary benefits or large-scale organised betting, any forms, offences of money laundering and hawala transactions. It’s like the drafters thought of all the possible offences that can exist when three or more accused are involved and stuffed them into one unwieldy definition and pasted them into the Bill. It is vague, poorly worded, and unwieldy — everything that definitions should not be. The punishment is stringent — anyone “who conspires or organises the commission of an organised crime” shall be punishable with imprisonment for a minimum of five years to life. But there are no safeguards afforded at present.

MCOCA has procedural safeguards that prevent abuse of such a “special law with stringent and deterrent provisions” as per its statement of objects. For instance, Section 23 presently provides that no information about the commission of an offence of organised crime shall be recorded by a police officer without the prior approval of an officer below the rank of Assistant Commissioner of Police (ACP). Further, no investigation shall be carried out by a police officer below the rank of ACP. No “special court” shall take cognisance of any offence under this Act without the sanction of a police officer of the rank of ACP and above.

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MCOCA’s “special courts” are staffed by judges specially appointed by the government with the concurrence of the Chief Justice of the Delhi High Court. Such a judge should have had experience as an Assistant Sessions or Sessions Court judge previously. Importantly, authorisation for interception of wire, electronic or oral communication shall be allowed only after an officer not below the rank of Deputy Commissioner of Police, who is supervising the investigation of organised crime, submits an application to the competent authority. A review committee consisting of the Principal Secretary of Delhi, Law Secretary and Home Secretary shall review orders of the competent authority.

In essence, the MCOCA, an example of a special statute intended to combat an elaborate offence (organised crime), balances the stringency of not only the punishment it mandates, but also the invasion of privacy by wiretaps to further enhance the investigation, along with procedural safeguards. Great care has been taken by the legislature in the constitution of “special courts”, and the qualifications in terms of prior experience of the judges who will hear such cases. All of this is absent in the reforms that are proposed. The principles of criminal law are being weakened— and it is the general public that will suffer by way of a lack of procedural protections and the absence of checks and balances. The right of fair trial and rule of law also become casualties in the process.

The writer is a Senior Advocate at the Supreme Court of India

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