This article, “ A Call for Change: Reforming Criminal Law” is written by Urvashi Lanjhewar a 4th year Law student at Sage University, Indore
Introduction:
Criminal law stands as the bedrock of any society’s legal system, defining what behaviors are deemed unacceptable and prescribing corresponding punishments. However, the efficacy and fairness of these laws can be subject to scrutiny, particularly in light of evolving societal norms, values, and understanding of justice. In this comprehensive exploration, we delve into the urgent need for reform in three key areas of criminal law: drug possession laws, sentencing guidelines for non-violent offenses, and the treatment of juveniles within the criminal justice system.
Rethinking Drug Possession Laws:
For decades, punitive approaches to drug possession have dominated criminal justice systems worldwide, contributing significantly to mass incarceration and perpetuating cycles of harm, particularly within marginalized communities. However, mounting evidence suggests that such punitive measures are not only ineffective but also exacerbate social inequalities and public health crises.
a. The Failures of the War on Drugs:
The War on Drugs, declared in the 1970s, intensified punitive measures against drug-related offenses, leading to soaring incarceration rates, especially among communities of colour. Despite extensive resources allocated to enforcement efforts, illicit drug use persists, and rates of addiction remain largely unchanged. Moreover, the criminalization of drug possession has fueled a lucrative underground market, contributing to violence and organized crime.
b. Decriminalization and Harm Reduction:
In contrast to punitive approaches, decriminalization and harm reduction strategies have shown promising results in mitigating the harms associated with drug use. Portugal’s decriminalization model, implemented in 2001, emphasizes treating drug addiction as a public health issue rather than a criminal offense. Under this approach, individuals found in possession of small quantities of drugs are diverted to administrative sanctions or offered access to treatment and support services.
c. The Case for Reform:
Reforming drug possession laws involves shifting away from punitive measures towards a public health-oriented approach. Such reforms may include decriminalizing the possession of small quantities of drugs, expanding access to evidence-based treatment programs, and reallocating resources from enforcement to harm reduction initiatives. By prioritizing compassion and rehabilitation over punishment, societies can address the root causes of drug addiction while reducing the burden on the criminal justice system.
Revamping Sentencing Guidelines for Non-Violent Offenses:
The imposition of harsh and disproportionate sentences for non-violent offenses has contributed significantly to the phenomenon of mass incarceration, straining resources and perpetuating cycles of recidivism. Mandatory minimum sentences, three-strikes laws, and sentencing disparities based on race and socio-economic status highlight the inherent flaws in current sentencing practices.
a. The Impact of Mandatory Minimums:
Mandatory minimum sentences, enacted to deter crime and ensure consistency in sentencing, have instead led to injustices and perpetuated racial disparities within the criminal justice system. By removing judicial discretion and mandating predetermined sentences for certain offenses, these laws have disproportionately affected marginalized communities and exacerbated overcrowding in prisons.
b. Alternatives to Incarceration:
In contrast to incarceration, alternative sentencing measures such as community service, probation, drug treatment programs, and restorative justice practices offer viable alternatives for non-violent offenders. These approaches prioritize rehabilitation, accountability, and community reintegration while reducing the social and economic costs associated with incarceration.
c. Toward Sentencing Reform:
Reforming sentencing guidelines necessitates a comprehensive reassessment of the principles underlying criminal punishment. Rather than focusing solely on punishment and deterrence, sentencing practices should prioritize rehabilitation, proportionality, and individualized justice. Moreover, efforts to address systemic biases and disparities within the criminal justice system are essential to achieving meaningful reform.
Rethinking Juvenile Justice:
The treatment of juveniles within the criminal justice system raises significant ethical and practical concerns, particularly regarding the efficacy of punitive measures in rehabilitating young offenders and preventing future delinquency. Despite advancements in understanding adolescent brain development and the rehabilitative needs of juveniles, many jurisdictions continue to subject young offenders to harsh and disproportionate penalties.
a. The Vulnerability of Juvenile Offenders:
Adolescents are inherently susceptible to external influences and exhibit greater potential for rehabilitation compared to adult offenders. However, punitive approaches, including the imposition of lengthy prison sentences and the transfer of juveniles to adult courts, often hinder rather than facilitate the rehabilitation process. Moreover, the trauma and stigma associated with incarceration can have long-lasting detrimental effects on young offenders’ well-being and prospects.
b. Promoting Rehabilitation and Reintegration:
A rehabilitative approach to juvenile justice emphasizes the importance of individualized treatment, education, and support services tailored to the unique needs of young offenders. Diversion programs, therapeutic interventions, and restorative justice practices offer alternatives to incarceration while promoting accountability and addressing the underlying causes of delinquency. Furthermore, efforts to involve families, communities, and other stakeholders in the rehabilitation process are essential to ensuring successful reintegration and reducing recidivism among juvenile offenders.
c. The Imperative for Reform:
Reforming juvenile justice requires a paradigm shift away from punitive measures and towards approaches that prioritize the well-being and future prospects of young offenders. Policies and practices should be guided by principles of compassion, equity, and evidence-based intervention. Moreover, addressing systemic issues such as racial disparities and socioeconomic inequalities within the juvenile justice system is crucial to achieving meaningful and sustainable reform.
Criminal law reform
The Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB), replace the Indian Penal Code,1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA), respectively. These Bills seek to modernise the current legal framework and overhaul the criminal justice system.
The Bills seek to move towards a reformative justice system by providing community service instead of imprisonment. However, they mostly retain the current punitive character of the criminal justice system. The BNSS contains procedures for investigation and trial, as well as provisions on maintaining law and order. The question is whether a law on criminal procedure should deal with maintaining public order as well. The Bills retain several provisions from the IPC, which have been incorporated into other special laws. Removing these might help in reducing inconsistencies and administrative duplication.
The Bills also add provisions from other special laws related to terrorism and organised crime. The minimum age for criminal responsibility has been retained at seven years, which is lower than the norm in international conventions and other jurisdictions. The Bills retain several offences from the IPC and CrPC which may be civil disputes, that is, these cause injury to a person instead of being offences against the public. The BNSS retains the current provisions in CrPC. It also prohibits bail for the accused if they have multiple cases pending. It does not allow plea bargains to be struck for a lesser offence. They provide:
Speeding up Justice: One of the major issues in India’s legal system is the delay in dispensing justice. Reforms aimed at streamlining procedures, reducing case backlogs, and expediting trials could lead to quicker resolution of cases and improve access to justice for citizens.
Modernization and Clarity: Updating the IPC and CrPC to reflect contemporary societal norms, technological advancements, and legal standards can enhance clarity and effectiveness in dealing with various types of crimes. This may include defining new offenses, revising sentencing guidelines, and incorporating provisions for digital evidence and cybercrimes.
Protecting Rights: Reforms that prioritize human rights, due process, and fair trial standards are crucial for safeguarding individuals’ rights within the criminal justice system. This may involve strengthening legal aid services, enhancing safeguards against wrongful convictions, and ensuring access to legal remedies for victims and defendants alike.
Addressing Systemic Issues: Criminal law reform can also address systemic issues such as police reforms, judicial capacity building, and improvements in forensic capabilities. These reforms can contribute to a more efficient, transparent, and accountable criminal justice system.
Balancing Punishment and Rehabilitation: Striking a balance between punitive measures and rehabilitative efforts is essential. Reforms that promote alternatives to incarceration for nonviolent offenders, prioritize rehabilitation programs, and support reintegration into society can lead to better outcomes in terms of reducing recidivism and promoting rehabilitation. Public Participation and Feedback: Engaging stakeholders, legal experts, civil society organizations, and the public in the reform process is critical for ensuring that the changes reflect diverse perspectives, address pressing issues, and garner broad support for implementation.
Conclusion:
While these reforms hold promise, their success will depend on effective implementation, adequate resources, capacity building, and ongoing monitoring and evaluation. Continuous engagement with stakeholders and adaptation based on feedback and outcomes will be key to realizing the potential benefits of India’s criminal law reform efforts
Reference
https://www.drishtiias.com/daily-updates/daily-news-analysis/reforming-criminal-laws
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