On August 11, the Home Minister presented three Bills in the Lok Sabha that, if passed, will replace the existing criminal laws of the country.
Strengthening law and order is the intended aim of this effort according to the statement of objects and reasons. Implicit in this articulation is the correlation between social order and enforcement of criminal law. The Bills assume that the law can maintain “public order” by reducing crimes. But the role of criminal law in achieving this goal is often exaggerated. With its exclusive focus on blaming and punishing individual offenders for crimes, criminal law obscures the socially rooted nature of crimes. Given this reality, the capacity of criminal law to be an instrument of crime control is rather limited. Yet, governments routinely insist on the ability of legislative reforms to control crimes and provide security. It must force us to question what this “overhaul” is really about.The system of criminal law is premised on the idea of “universal individualism” where responsibility for crimes lies solely with individual offenders. While social circumstances have an immediate bearing on instances of crime, criminal law represents crimes as a matter of individual choice for which full responsibility must be borne by the individual.
It universally ascribes free will and complete autonomy to all individuals over their decisions, irrespective of their social context.However, that is a rather outdated way of thinking about crimes. There is now a significant body of knowledge to suggest that a person’s decision making process and their ability to cope with risks is greatly influenced by their environmental factors like socio-economic status, social upbringing, education, family and friendships. Individual psychological and biological factors interact with these environmental factors in influencing individual responses to different situations.Understanding the dynamics of the social production of crime raises difficult questions about the obsessive and singular focus of criminal law on individual criminal responsibility. What role and weight must we assign to environmental factors in engendering and perpetuating conditions that lead to crimes?
In fact, the continued prevalence of many crimes is deeply influenced by the socio-cultural realities of our society. For instance, the rape culture in our society is a constant and violent reminder of this dynamic. This might ultimately lead us to question and fundamentally reimagine our criminal justice system. But any meaningful understanding of incidence of crime must come with the acknowledgement of the extremely limited role of legislative reforms in preventing crimes and strengthening law and order.
However, it is also just as true that governments repeatedly exaggerate the capacity of criminal law to reduce crimes. It is not that those in charge of governance are not aware that their project focused on criminal law is set up to fail in its intended aim. In fact, the actual motivation is different and deeply political in nature. Adopting the legislative reform route allows the state to take on the symbolic role of condemning crimes and garnering public support. In doing so, it offers the illusion of strict action from the state without any worthwhile and long-term efforts towards addressing real problems that plague the criminal justice system. Intrinsically, the main purpose of the law and order discourse is “demonstrative rather than substantive.”
Not only is the potential of criminal law grossly overstated, it also hides the operations of power that characterise criminal justice administration. The social, cultural, and political contexts in which criminal law operates make it a powerful tool of oppression and violence. Along with selective criminalisation and arbitrary application, the disproportionate impact of the force of criminal law on the poor, the vulnerable and the powerless is well-documented across the world and India is no exception to that. Therefore, any claims about the neutrality of criminal law and its administration is suspect. The strenuous tensions between law and justice play out in violent terms in the context of criminal law.
When we talk about “reforms” in this context, it is much more meaningful to invoke the framework of “criminal justice” rather than the significantly narrower idea of “criminal law”. The law, by itself, can deliver very little of the reforms we need. We need to consider the sites of reform on a much larger canvas for the law to contribute in any substantial sense. We need to fundamentally reconfigure institutions that play a role in delivering criminal justice — a reconfiguration that is sufficiently invested in fairness, justice, and being effective for both victims and accused persons. Our system fails victims and survivors as much as it fails accused persons and mere legislative changes will not change that. The institutional imagination of our police, investigation mechanisms, criminal courts, prosecution and defence services, prisons, and support services in criminal justice administration needs urgent and fundamental reconsideration if we are truly interested in an “overhaul”.
We must confront the rather obvious reality that there is no overhaul that these three criminal law Bills can achieve. Even a bare textual comparison will demonstrate the large proportion of existing provisions from the IPC, CrPC, and the Evidence Act that have been reproduced in these Bills.
Apart from that widespread textual borrowing, there is no overhaul in the approach to criminal law or criminal justice that these Bills seek to usher in. We must see it for what it really is — a populist move where the empty rhetoric of “overhaul” and “decolonisation” seek to convey something that these Bills come nowhere close to delivering.
Neetika Vishwanath is Director (Sentencing) at Project 39A, National Law University, Delhi.
Anup Surendranath is a Professor of Law at National Law University Delhi.
This article first appeared on The Indian Express and can be accessed here.