Chief Justice of India DY Chandrachud on Saturday said the country was set for a significant overhaul of its criminal justice system with the upcoming implementation of three new criminal laws.
Speaking during the Conference on India’s Progressive Path in the Administration of Criminal Justice System, the CJI said that these laws signified a watershed moment for the society because no law affected the day-to-day conduct of the society like the criminal law.
A criminal law directed the moral arc of a nation and had the ability of depriving people of their cherished liberties, he added.
The CJI was talking about the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, which will replace the Indian Penal Code, 1860; the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872 respectively.
He said the underlying justification for the substantive provisions was the age-old harm principle which was best summarised in the saying, ‘Your right to swing your arms ends just where the other man’s nose begins.’
As per the CJI, the procedural law which governed crimes from the state of setting the criminal process in motion to the conviction for the commission of the offence ensured that no person was charged and subsequently convicted for offences without following the due process of law.
The traditional harm principle has found resonance with the understanding that crime was immoral.
The father of criminology, Raffaele Garofalo, defined crime as “an immoral and harmful act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as is possessed by a community – a measure which is indispensable for the adaptation of the individual to society,” he added.
As per the CJI, the ideals underpinning the combination of harm and immorality were premised on the perception that deprivation of liberty lead to repentance and moral salvation.
He said there were two problems with this approach. The first one was that it was not a victim-oriented approach. The impact of the harm on the victim was not considered. Victims of crimes often felt like their agency over their own decisions was lost by the commission of a crime. The laws must aim to give victims a sense of agency and control in the criminal process as well as a sense of justice.
The second problem with the harm and immorality approach was that it advanced a perpetrator perspective to crime which viewed crimes as an individual failing. It did not address systemic causes which pushed the people to commit crimes.
For example, a law addressing gender violence will rightly condemn such violence as immoral and punish it. But it did little to change the sexist and patriarchal framework of the society, which induced the commission of these crimes.