No room for ambiguity

LAWS represent the will of the legislature to cater to the needs and ethos of society; they are expected to evolve by accommodating sentiments of the masses and harmonising them with the judicial wisdom expressed in judgments of the Supreme Court from time to time. The statute reflects not only on the wisdom of contemporary political thinkers but also stands witness to the professional draftsmanship and legal acumen of its makers. The Bharatiya Nyaya Sanhita, 2023, a Bill which seeks to replace the Indian Penal Code (IPC) of British vintage, has been referred to a Parliamentary Standing Committee for suggesting improvements.

THE TRIBUNE DEBATE: Overhaul of criminal laws

The move to revamp criminal laws is welcome, but the fears and concerns over the new legislation must be allayed

Though it takes decades for a new law to attain functional clarity and operational maturity, it is expedient that it should be free from all kinds of drafting anomalies and conceptual confusion at the outset. Since laws are often referred to by the legal fraternity at national and international levels, any language- and punctuation-related mistake and conceptual ambiguity, which are seen at many places in this Bill, could undermine the intellectual credentials of its architects.

The new legislation has been introduced as a consolidating and amending statute, though the stakeholders, including lawyers, law teachers, police personnel and adjudicators, do not seem to be convinced with the idea of a complete overhaul of the sequencing and numbering of the sections of the IPC. They argue that the IPC sections are so ingrained in the memory of the masses that any change in their names/titles would create confusion even in the minds of professionals in the criminal justice system. The search for citations and correlating of precedents as well as maintaining comparative statistics of crimes would also become Herculean tasks.

The rhetoric over replacing the colonial law with the indigenous one gets dwarfed singularly by the fact that the substance of the offences contained in the Bill remains almost the same as that of the IPC; not much has changed at the conceptual level except renumbering of the sections and addition or deletion of some provisions here and there.

Laws do not wear the identity of their draftsmen on their sleeve; they are best known by their contents and their expounding by constitutional courts. Ideally, a general penal code should be like a banyan tree, whose glory lies in preserving the old trunk alongside the prop roots hanging from the branches, not only to lend support to the ageing tree but also to infuse new life into it, besides its extension and expansion with the passage of time.

Both the letter and spirit are equally important to interpret the law. The spirit of laws lives in their legal history and linkages with legislative intent and judicial interpretations. Therefore, the legacy associated with any section of the law assumes significance. Nothing would have been lost by retaining the identity of the IPC sections in the new law as it is.

Renumbering and changing the sequence of the offences in a law under review are akin to changing the name of a person midway through his or her life; it should be avoided as far as possible in order to prevent confusion and operational complications.

The ‘title’ of a section is its introduction and it is enacted separately along with the text. It is surprising that sections in the proposed law are without titles; instead, ‘marginal notes’ are appended. Marginal notes are mere catchwords and are not enacted parts of the statute; they are inscribed on the side margin by the draftsmen for the ease of understanding the content after the Bill is passed by the legislature. A marginal note cannot be a substitute for the title of a section.

There appears to be no compelling reason to include ‘special crimes’ — such as corruption, forced labour, crime against children, election-related offences and terrorist activities — in the proposed general code, as they are already separately codified elsewhere in the special laws to meet the requirement of distinct procedures to ensure effective investigation and prosecution. The British included some of these crimes in the IPC because not many special laws were in existence in those days. Moreover, the Supreme Court, in Sharat Babu Digumarti (2016), held that the special law on the subject shall prevail over provisions of the general law, proving the futility of codifying special crimes in the general code.

Like IPC, the Bill subscribes to the unconstitutional provision of ‘solitary confinement’ and mentions outlawed concepts of slavery in the marginal note of Clause 143, which reads ‘Habitual dealing in slaves’. Similarly, the word ‘compulsory’ in Clause 144 does not go well with its contents. Some of the issues highlighted by the SC, such as marital rape, gender neutrality of some offences and non-custodial penal provisions, etc., also remain inadequately addressed.

The sequence of sections under a chapter as well as in the whole scheme of a statute is an important aspect to be taken care of while writing a statute. Sections in a chapter are suitably listed in the increasing order of gravity; starting from the least serious offence and ending with the most heinous one. At the same time, offences of the same genus of criminality should be codified together under one chapter. The Bill falls short in this regard.

The drafting of statutes is the domain of specialists, and ample literature on the principles of construction and interpretation of statutes is available for guidance. Even a cursory look at the Bill gives the impression that it needs multiple readings by experts, who are conversant with the legal vocabulary and semantics and have experience in drafting legal documents, in order to improve it and enhance its utility.