Reforms in Special and Local Laws | 23 Oct 2023

Source: TH

Why in news?

Recently, several Bills have been tabled for reforming substantive criminal law as codified in the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and Indian Evidence Act (IEA), but Special and Local Laws (SLLs) have been largely neglected.

What are Special and Local Laws (SLLs)?

• About:
  • SLLs are specifically designed to address region-specific, cultural, or unique legal matters within a particular state or local area.
  • They are distinct from the general laws and regulations outlined in the Indian Penal Code (IPC).
  • It identifies Criminal Activities that the state government frames for specific issues.
• Significance:
  • SLLs constitute a crucial part of India's Criminal Justice System, encompassing the most critical offenses and procedures. They are immensely relevant in the Indian Criminal Justice System.
  • Nearly 39.9% of all Cognisable Offenses registered in 2021 were under SLLs.
    • In Cognisable Offences, an officer can take cognizance of and arrest a suspect without seeking a court’s warrant to do so, if she has “reason to believe” that the person has committed the offence and is satisfied that the arrest is necessary on certain enumerated bases.
    • Within 24 hours of the arrest, the officer must have detention ratified by a judicial magistrate.

What is the Need for Reforms in Special and Local Laws in India?

• Ambiguous Definitions:
  • Some SLLs, such as the Unlawful Activities (Prevention) Act, 1967 suffer from deficient, ambiguous, and vague definitions of offenses and terms like 'terrorist act,' 'unlawful activity,' and 'organized crime.'
  • These ambiguities can lead to misuse and misinterpretation, affecting the due process of law.
• Variability in legal process
  • SLLs can result in different treatment for individuals or groups based on their geographical location, leading to disparities in access to justice and legal protection.
  • The lack of legal consistency can create uncertainty for individuals and businesses, making it difficult to navigate legal rights and obligations.
• Inherently Indiscreet:
  • The absence of contemplative considerations can lead to inefficiencies and uncertainties.
    • For example, the Protection of Children from Sexual Offenses Act, 2012, has been criticized for its application to consensual sexual activities between minors, raising concerns about criminalising such conduct.
    • Supreme Court (SC) in the case of P. Mohanraj versus M/s Shah Brothers Ispat Ltd., 2021 referred to Section 138 of the Negotiable Instruments Act (NI Act), 1881 as a ‘civil sheep’ in a ‘criminal wolf’s’ clothing.
      • Section 138 of the NI Act provides for criminal provision regarding a cheque bounced due to insufficiency of funds.
• Undermining of Due Process:
  • SLLs have led to the sabotage of due process values, exemplified by increased powers of search and seizure and admissibility of confessions recorded by police officers.
  • It does not adequately safeguard the rights of the accused, creating concerns about fairness and the protection of individual liberties.
  • The lack of robust safeguards can open the door to potential abuse of the legal process, affecting the accused's rights
  • Restrictive Bail Provisions in SLLs make obtaining bail nearly impossible infringing on the rights of the accused.
    • E.g: Under Section 43(D)(5) of the UAPA, the bail provisions are exceptionally stringent, making it nearly impossible for those accused under the UAPA to secure bail.

Conclusion

• SLLs criminalizing conduct should be integrated into the penal code as separate chapters. SLLs with distinct procedures for reporting, arrest, investigation, prosecution, trial, evidence, and bail must be included in the Code of Criminal Procedure (CrPC) or treated as exceptions.
• The current omission of SLL aspects in the ongoing reform process is a significant limitation, necessitating a second wave of reforms to rectify these deficiencies.