Why Special And Local Laws Also Need To Be Reformed?

Relevance: GS2 - Government policies and interventions for development in various sectors and issues arising out of their design and implementation

(Source: The Hindu, 10/20/2023)

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Why in the news?

• Recently, Bills to amend the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act were presented in Parliament.
• This article discusses the need to amend the Special and Local Laws as most critical offenses and procedures are encompassed within these laws.

What are Special and Local Laws?

• Special and local laws are a category of laws that cover specific issues and criminal activities.
  • They can also be applicable to only a particular part of India or a particular locality, like the Port Trust Act.
• Examples: Protection of Children from Sexual Offenses 2012 and Prevention of Money Laundering Act (PMLA) 2002
• They are a critical part of the Indian judicial system as most critical offenses and procedures are covered by Special and Local Laws (SLLs).

Why are SLLs significant?

• Around 39.9% of all cognizable offenses registered in India in 2021 were under Special and Local Laws.
• According to the Crime in India Statistics of 2021, 24.3 lakh offenses of 61 lakh cognizable offenses were registered under SLLs.
• SLLs are an important category to be considered when discussing the limits of the state’s power of criminalization and violation of individual rights and liberties as it covers offenses and procedures not mentioned in the IPC or CrPC.

Why are reforms in SLLs necessary?

• Ambiguity and inapplicability: SLLs have been criticized for the use of ambiguous and vague definitions of offenses, which raises concerns about their applicability in civil or regulatory wrongs.
  • Example: Terms such as “terrorist act”, “unlawful activity”, “organized crime”, and “organized crime syndicate”, etc are ambiguously and vaguely defined in acts such as the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the Maharashtra Control of Organised Crime Act, 1999 (MCOCA).
  • The POCSO Act, 2012 has also been criticized for its applicability to and criminalization of consensual sexual activities between minors.
• Procedural issues: SLLs have been used to dilute universally accepted due process values.
  • Example: Expanded search and seizure powers under the UAPA and the admissibility of police-recorded confessions under the MCOCA.
• Difficulty in securing bail: SLLs such as Section 43(D)(5) of the UAPA and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Section 45 of the Prevention of Money Laundering Act (PMLA) 2002 have stringent provisions that make securing bail an impossible task.

All-encompassing legal code

• The Indian Penal Code was enacted in 1860 with the aim of codifying all criminal laws in the country inspired by Bentham’s Pannomion, a comprehensive collection of rules codified in a single place.
• The IPC was meant to be amended in suitable situations such as the creation of new offenses, clarification of existing offenses, and the removal of inconsistencies.
  • However, the IPC has also been criticized for retaining an archaic sense of morality and the colonial nature of offenses mentioned by it.
  • The challenges to homosexuality under Section 377 in Navtej Johar versus Union of India (2018) and sedition under Section 124A in S.G. Vombatkere versus Union of India (2022) indicate the need for reform of India’s criminal laws.
• There has been an increase in the enactment and application of SLLs representing a deviation from the original intent of codification.

Way forward

• A second generation of reforms is necessary in order to address the lacunae in the SLLs and legal architecture of the country.
• Integration in larger criminal framework: SLLs that criminalize or seek to criminalize specific conduct should be integrated as separate chapters within the larger framework of the penal code.
• Integration in CrPC: SLLs that create distinct procedures to report offenses, arrests, investigations, prosecutions, trials, evidence, and bail should be included as separate procedures within the CrPC or as exceptions to its general provisions.

Conclusion

• The increasing reliance on the SLLs should not overpower the idea of codification of penal laws as imbibed in the IPC as well as the CrPC.
• The non-inclusion of the SLLs in the present project to reform criminal laws in India is a significant limitation and must be addressed with urgency in order to secure the integrity of the justice system.

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FAQs

MCQs

Question: In essence, what does ‘Due Process of Law’ mean? (UPSC CSE 2023)

(a) The principle of natural Justice

(b) The procedure established by law

(c) Fair application of law

(d) Equality before law

Question: Consider the following statements:

1. Warren Hastings was the first Governor General who established a regular police force in India on the British pattern.
2. A Supreme Court was established at Calcutta by the Regulating Act, 1773.
3. The Indian Penal Code came into effect in the year 1860.

Which of the statements given above are correct? (UPSC CSE 2005)

(a) 1 and 2

(b) 2 and 3

(c) 1 and 3

(d) 1, 2 and 3