The Third Eye: Implementation of legal reforms

New Delhi: Enactment of new Penal Codes a year ago, as Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita and Bharatiya Shaksha Sanhita for replacing colonial era laws, has been a step in the right direction. The objective was to provide a modern set of laws, move towards citizen-centric justice and most importantly, leverage technology to ensure swift investigation and conviction.

Amidst preoccupations with matters of governance and internal security, Union Home Minister Amit Shah fulfilled the most fundamental obligation of getting our legal system to provide easy accessibility, besides meeting the contemporary challenges of cyber offences, terrorism and crimes against women and children.

Prime Minister Modi has to be complimented for prioritising legal reforms in a manner that placed the common citizen at the heart of governance by mandating a ‘citizen first’ and ‘ease of justice’ approach in the sphere of justice. Democracy is ‘for the people’, but a democratic state also has to have a firm commitment towards safeguarding the nation’s sovereignty, security and economic progress against possible attacks from adversaries.

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We live in the era of ‘proxy wars’ in which terrorism, externally instigated insurgencies and internal strife precipitated by agent provocateurs, could be used as instruments – requiring a new level of awareness on the part of the police about the importance of public cooperation for crime control. Police reforms to achieve this goal are as important as the revision of laws, particularly in a situation where policing is a state subject that makes it more vulnerable to political influences.

Provisions relating to the use of technology and forensics are perhaps the most important part of the new laws. It has been made mandatory for forensic experts to visit crime scenes and collect evidence in serious offences punishable by a year’s jail term or more. Also, the process of evidence collection at the crime scene will be mandatorily video-graphed to prevent tampering of evidence. Further, summons can now be served electronically, hastening the legal process, reducing paperwork and ensuring effective communications between all parties involved.

Moreover, by conducting all legal proceedings electronically as provided for in the new laws, the judicial process has been made more convenient for victims and witnesses and less sparing for the accused. Streamlining and expediting the entire legal process is a timely response to a situation where the justice system had been seriously discredited on account of the unexplained delays.

The new laws encourage the use of the National Automated Fingerprint Identification System (NAFIS) and other biometric techniques such as DNA matching in POCSO cases, to ensure that offenders would no longer be able to exploit loopholes in the processes- this was expected to boost conviction rates significantly. Home Minister Amit Shah has rightly said that the legal reforms will make the judicial process affordable, accessible and approachable while rendering it simpler, more consistent and transparent. Laws have to be developed to cope with new criminal trends.

Artificial Intelligence (AI)-assisted deepfakes and misinformation on social media have compelled the government to amend Information Technology (IT) Rules to prevent criminal misuse of this medium. The new laws promise faster and fair resolution of cases and lay down that the investigation has to be completed in 90 days in most cases, leaving a period of 14 days for any preliminary enquiry. The victim as well as the accused have to be supplied with all documents within 14 days. A period of 60 days is prescribed for framing of charges or the filing of a ‘discharge’ application.

After the filing of charges, the court must pronounce judgment within a maximum of 45 days after the conclusion of arguments, granting a maximum of two adjournments to avoid unnecessary delays and ensure ‘timely’ justice. The reformed Penal Codes prioritise investigation for offences against women and children, ensuring completion within two months of recording information. Offences against women and children have been given precedence over all other crimes, and the age differential in the case of gang-rape of a minor under 16 years and 12 years has been done away with.

Now, gang-rape of a minor below 18 years of age is punishable with life imprisonment or death, which should act as a more effective deterrent. In order to provide more protection to women and allow for transparency in investigation, the statement of the victim shall be recorded through audio-visual means by the police or in person by a woman Magistrate and in her absence by a male Magistrate in the presence of a woman. No woman will be examined at a place other than her residence.

Sensitivities of a woman or girl child have thus been fully respected, and this should be regarded as a major reform considering the indignities that were allowed to creep into investigations earlier. It should be noted that the new provisions of law enjoin upon medical practitioners to send the medical report on a rape victim to the Investigation Officer (IO) within a week. In the new Codes, there is a much harsher punishment for terrorist acts, cyber offences and organised crime syndicates.

The contemporary crimes on the rise have been dealt with on a special footing. Terrorism is an instrument of ‘proxy war’, cyber crimes are now an effective tool for destabilising a country and crime syndicates are operating at national and international levels for making material profits. BNS defines terrorism as an act intended or likely to threaten national unity, integrity and security, strike fear or coerce authorities and cause destruction of public property – it has been made punishable by death or life imprisonment.

The new law gives a lot of discretion to the police in interpreting an act of terrorism, and hence supervision by senior officers should be considered especially important and insisted upon. Organised crime is seen as a continuing unlawful activity, like kidnapping, extortion, and contract killing, all of which have severe consequences. Trafficking in people, drugs, illicit goods or weapons done by a member of a crime syndicate, resorting to the threat of violence, intimidation or coercion for obtaining material benefit, falls in the category of organised crime. The new Code treats cybercrime by such a syndicate as a distinct offence and prescribes much harsher punishment for the same.

The transformative character of these laws is beginning to make an impact at the ground level. Strict timelines for investigations, charge sheets and judgements ensure a swift and effective justice delivery. By prioritising victim-centric provisions such as Zero FIR and incorporating a separate chapter on crimes against women and children, the laws establish a benchmark of transparency and accessibility and empower citizens to a new degree. In contrast to the punitive focus of earlier laws, the new Penal Code framework adopts a reformative approach and strikes a balance between accountability and rehabilitation.

Community service has been introduced for minor offences, which will help to prevent recidivism and enhance the awareness of social responsibility among the young offenders. Nearly 15 lakh policemen and 42,000 prison personnel have been trained in the new laws, and the orientation of others connected with the judicial system is being undertaken. What has been attempted is a transformative overhaul to create transparency and efficiency in the judicial system with particular reference to the role of the police in ensuring citizens-centric justice.

This, perhaps, is the most difficult part, as the Police Station was still steeped in colonial period practices. Public awareness is critical for the success of the reformed laws. The law and order system is in the hands of state governments, which must fulfil their obligation of appointing the right kind of Station House Officers (SHOs), enlarging the Forensic Sciences infrastructure, and qualitatively improving the supervisory role of senior police officers in ensuring that the new laws are implemented in letter and spirit. (The writer is a former Director Intelligence Bureau)