More than 160 years after Lord Macaulay laid down a penal code for what was then a colony of the British crown, India is poised to supplant it with new laws free of colonial vestiges and designed to speed up the judicial process.
The government has introduced three bills in parliament that it says will provide a special focus on crimes against women and address the intolerable delays in the system which can leave people waiting 15-30 years for a verdict.
But some lawyers have called the new focus on crimes against women “old wine in new bottles” in that the provisions remain broadly similar. Gang rape will attract a 20-year jail sentence or life in jail which is what the current law provides for.
The act of obtaining sex by promising marriage to a woman will be treated as a crime for the first time and will carry a 10-year sentence. The new law also specifically defines the notion of consent. However, marital rape has not been recognised as a crime.
The bills – replacing the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act – have been referred to a parliamentary committee for further deliberation but could be passed before the current legislature dissolves ahead of general elections next May.
Some legal experts said the bills, if approved, simply moved existing provisions around, and might add complexity to the legal process as courts figure out the procedural implications for tens of thousands of existing trials. But those in favour said they enabled fresh discussions on the need to reform laws protecting women and girls, and also increased transparency on criminal codes.
Introducing the bills on Friday, home minister Amit Shah said the existing penal code was a sign of “slavery” since it was suffused with the desire to entrench imperial rule.
“The foundation of these procedures was to protect the British, not the common people of India. They were complex, only to penalise Indians whereas the Indian concept is that of giving justice to the poor and punishing the guilty,” said Shah.
Although the colonial-era laws have been extensively amended over the years to bring them in line with modern realities, the entire legal system retains the stamp of the British Raj. Homosexuality remained a crime for 157 years until India repealed the law in 2017. Adultery was a crime for 158 years until the supreme court ruled in 2018 that it was a civil matter, not a criminal offence.
Shah said the overhaul would result in shorter trials and faster verdicts. At present, infinite adjournments are allowed by the legal system. The courts are clogged with 47m cases. There are instances of relatives of murder victims dying before trials are completed, while in other cases, witnesses grow old and die before they can give testimony.
These delays, along with poor methods of evidence collection by the police, result in a conviction rate of about 57%. In rape cases, it is 32%. Consequently, many Indians have lost faith in the legal system.
“The goal is to take the conviction rate to 90%. Every Indian will get justice in a maximum of three years,” Shah told MPs.
The bills specify that judgments will have to be given within 30 days of hearing closing arguments; the courts can allow only two adjournments after hearing the objections of the other party; and forensic evidence must be used in offences carrying a jail sentence of seven years or more for which more labs will be set up across the country.
Shah told MPs that new crimes have been defined by the bills to cover the fact that the existing law has no provision for them, such as hate speech and mob lynching.
The controversial crime of sedition which dates back to the Raj and which critics of the government say is used to silence dissent, continues to be an offence, albeit under another name. “The bills make the definition of sedition even more open and wide, thereby allowing it to be misused,” said opposition Congress party spokesperson Randeep Surjewala.
Rebecca Mammen John, a senior advocate in the supreme court, told the Guardian that Shah’s claim of a “total overhaul” was exaggerated.
She said the reforms were no more than “a housekeeping exercise” in that they streamlined many similar provisions that were scattered in different places of the penal code and amalgamated them according to the nature of the crime.
John said the new laws would not necessarily lead to faster justice for the simple reason that they were “disconnected from the reality on the ground”.
It was not the first time, she said, that this government and previous governments had ordered tighter time limits for trials or set up “fast track courts”, all of which had failed.
“Some years ago, judges were told to conclude rape trials in 90 days but did it happen?” she asked. “No. The infrastructure just doesn’t exist. Where are the judges? Where are the forensic labs? Even in big cities there is a huge backlog of cases in the labs. How can a judge deal with 125 cases a day to such timelines? When reforms are disconnected from reality, what you get is a gimmick,” said John.
As of 2020, India had 21 judges for every million Indians.
