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Revamping India's Criminal Laws: Special & Local Challenges.



  Oct 23, 2023

Reforming India's Criminal Laws: Challenge of Special and Local Laws



Introduction:

Special and Local Laws (SLLs) refer to a category of laws in India that are distinct from the general laws applicable throughout the country. These laws are specialized and are often enacted to address specific issues or circumstances in particular regions or states.

The recent presentation of bills aiming to reform criminal laws in India has garnered significant attention. These bills primarily target amendments to the Indian Penal Code (IPC),
Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA). While these amendments are essential, it's crucial to recognize that a substantial part of India's criminal law lies within Special and Local Laws (SLLs), which have not received the same level of attention in the reform process.

The Significance of Special and Local Laws (SLLs):

Quantitative and Qualitative Relevance: SLLs hold immense importance in India's criminal justice system, both in terms of quantity and quality. In 2021, approximately 39.9% of all cognizable offenses were registered under SLLs. These laws have triggered fundamental debates on the limits of the state's power to criminalize, especially concerning individual rights and liberties.

Substantive Issues: SLLs encompass a wide range of substantive issues. Some, like the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), suffer from deficient and vague definitions of offenses such as 'terrorist act' and 'organized crime.'
Concerns have arisen regarding the applicability of the Protection of Children from Sexual Offences Act, 2012, to consensual sexual activities between minors, which some argue should be addressed as civil or regulatory matters rather than criminal offenses.

Procedural Concerns: Procedurally, SLLs are diluting universally accepted due process values. Examples include increased search and seizure powers under Section 43A of the UAPA and the admissibility of confessions recorded by police officers under Section 18 of the MCOCA.
Stringent provisions in SLLs make the grant of bail nearly impossible in cases like Section 43(D)(5) of the UAPA, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Section 45 of the Prevention of Money Laundering Act (PMLA) 2002.

The Evolution of Criminal Laws:

Bentham's Vision: The evolution of criminal laws in India has shifted significantly since the enactment of the IPC in 1860. The increasing use of SLLs represents a departure from Jeremy Bentham's idea of a "Pannomion" – a comprehensive collection of rules codified in one place.
The IPC was initially designed to encompass all criminal laws, subject to necessary amendments for new offenses, clarifications, and removal of inconsistencies.

The Need for Codification: While the IPC has faced criticism for retaining archaic morality and colonial roots in some of its provisions, it cannot be denied that the idea of codification was largely successful.
Challenges like the decriminalization of homosexuality (Section 377) and sedition (Section 124A) have highlighted the need for reform but do not negate the success of the codification concept.

The Call for Second-generation Reforms:

Inclusion of SLLs: As governments increasingly rely on SLLs for various reasons, it is crucial not to overshadow the original idea of codification embodied in the IPC and CrPC.
All SLLs that criminalize specific conduct should be incorporated as separate chapters within the broader penal code. Procedures related to reporting of offenses, arrest, investigation, prosecution, trial, evidence, and bail in SLLs should either be integrated as separate procedures within the CrPC or be established as exceptions to its general provisions.

Conclusion:

While the ongoing criminal law reform in India is essential, it's imperative to address the issues presented by Special and Local Laws comprehensively.
These laws hold quantitative and qualitative significance in the criminal justice system and cover a wide range of substantive and procedural concerns.
A second generation of reforms should prioritize the inclusion and integration of SLLs into the larger structure of penal laws, ensuring that the original idea of codification is not undermined.


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