11 Nov 2023 : The Hindu Editorial

Editorial 1 : Over the Top

Context: On Mahua Moitra and panel’s disqualification recommendation

Introduction

• The alacrity with which the Lok Sabha Ethics Committee went about recommending the expulsion of Trinamool Congress Member of Parliament (MP) Mahua Moitra from the lower House is certainly not a sign of any fidelity to ethics, or fairness. The recommendation is a brazenly partisan attempt to silence a critic of the government.

Ethics Committee- Lok Sabha

• A Presiding Officers’ Conference held in Delhi in 1996 first mooted the idea of ethics panels for the two Houses.
• Then Vice President (and Rajya Sabha Chairman) K R Narayanan constituted the Ethics Committee of the Upper House on March 4, 1997, and it was inaugurated that May to oversee the moral and ethical conduct of members and examine cases of misconduct referred to it. The Rules applicable to the Committee of Privileges also apply to the ethics panel.
• In the case of Lok Sabha, a study group of the House Committee of Privileges, after visiting Australia, the UK, and the US in 1997 to look into practices pertaining to the conduct and ethics of legislators, recommended the constitution of an Ethics Committee, but it could not be taken up by Lok Sabha.
• The Committee of Privileges finally recommended the constitution of an Ethics Committee during the 13th Lok Sabha. The late Speaker, G M C Balayogi, constituted an ad hoc Ethics Committee in 2000, which became a permanent part of the House only in 2015.
• The members of the Ethics Committee are appointed by the Speaker for a period of one year.
• The 15-member Committee’s function is to examine every complaint relating to unethical conduct of a Member of Lok Sabha referred to it by the Speaker and make such recommendations as it may deem fit.

Concerns

• It is also a warning shot meant to intimidate MPs from doing their job of holding the executive accountable. Neither the process nor the conclusions of the committee are grounded in any decipherable principle.
• The committee, with the help of the Ministry of Electronics and Information Technology found that the MP’s credentials were used online from Dubai 47 times to access the Parliament portal.
• Parliamentary questions were submitted from abroad. As Opposition members in the committee have pointed out, the drafting and the submission of questions are routinely done by aides of MPs.
• And MPs raise questions in Parliament based on representations from various constituents. To assume without solid evidence that any question is in exchange of material favours and then to expel an elected MP, is an assault on parliamentary democracy itself.
• The committee is calling upon the government to investigate the allegation of ‘quid pro quo’ raised by one of its members against Ms. Moitra, after holding her guilty, turning the principle of natural justice on its head.
• If MPs are barred from sharing their login credentials with others, the rule must equally apply to one and all. Now that the committee has taken this extreme step of calling for the expulsion of an elected member from the House, thereby depriving the voters of her constituency representation, it should also investigate how other MPs prepare and submit parliamentary questions.
• The selective investigation of one MP, based on insinuations and conjectures, clearly comes out as what it is — intimidation. It is also in stark contrast with the tardy response of the Lok Sabha Committee of Privileges to a serious complaint against Bharatiya Janata Party MP Ramesh Bidhuri who used derogatory communal slurs against a fellow member in the Lok Sabha.

Conclusion

• That said, Ms. Moitra’s act of allowing a person who is not employed by her to execute official work on her behalf betrays a lack of discretion and judgement. This should act as a lesson for all those who seek to hold the government accountable: to keep themselves beyond reproach.

Editorial 2 : Revamping the criminal justice system to fit the bill

Context: There needs to be proper parliamentary scrutiny of the new Bills replacing the IPC, the CrPC and the IEA to ensure a fair, just and efficient criminal justice system.

Introduction

• The Government has introduced three Bills to replace the core laws, i.e., the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act (IEA), 1872, which form the basis of the criminal justice system.
• These Bills are being examined by the Parliamentary Standing Committee on Home Affairs. (The Bharatiya Nyaya Sanhita Bill will replace the IPC; the Bharatiya Nagarik Suraksha Sanhita Bill will be in place of the CrPC, and the Bharatiya Sakshya Bill will replace the IEA.)

Questions raised by the Bills

• As these Bills replace the entire Acts — and are not merely Amendment Bills to fix some gaps — they provide an opportunity for an overhaul of the laws underlying the criminal justice system. This raises the following questions — Do they update the law to reflect the concepts of modern jurisprudence? How do these Bills relate to various special laws? Do they help unclog the criminal justice system? Are various definitions and provisions drafted well without ambiguity?

Issues related to modernising jurisprudence

• First, whether these Bills exclude civil law. Usually, criminal law deals with issues that are seen as an offence against the broader society or state while civil law deals with loss to a person.
  • However, the CrPC includes provisions for maintenance of wife and children after divorce. It also allows compounding of some offences by the affected person, which means the accused person is acquitted.
• Second, whether these Bills create a reformative system rather than a punitive system. There is a move towards this by making community service as a form of punishment. However, several minor offences (such as keeping an unauthorised lottery office, which carries a maximum penalty of six months imprisonment) are not compoundable, which means they will go through the process of trial and conviction.
• Third, whether maintenance of public order and the process of criminal prosecution should be in the same law. The CrPC has provisions charting out the process of arrest and trial as well as items such as Section 144 that empower the district magistrate to impose various restrictions. The new Bill retains this structure.
• Fourth, whether various directions of the Supreme Court of India have been codified in these proposed laws. The Bill codifies the procedure for mercy petitions. However, there is no codification of various directions related to arrests and bail.
• Fifth, whether the Bills try to ensure consistency of implementation. Typically, penalties for offences specify a range, with the judge expected to specify the sentence within the range based on the circumstances of each case.
• Sixth, whether the age provisions have been updated for modern norms. The IPC specifies that a child below the age of seven years cannot be accused of an offence. It provides such exemption until 12 years of age, if the child is found not to have attained the ability to understand the nature and consequences of his conduct.
• Seventh, whether gender related offences have been updated. The Bill is in line with the Supreme Court judgment which struck down the offence of adultery. Section 377 of the IPC, which was read down by the Court to decriminalise same sex intercourse between consenting adults has been dropped; consequently, the parts retained by that judgment including rape of a male adult and bestiality have also been removed.

Duplication as well as inconsistency across the laws

• The IPC was enacted in 1860 as the principal law specifying offences and penalties. Since then, several laws have been enacted to deal with specific offences. However, the IPC and the Bill to replace it continue to specify some of these offences and the applicable penalties. This leads to duplication as well as inconsistency across these laws. In some cases, the penalties are different; also, a person may face prosecution under different laws for the same action.
  • In some cases, this has been addressed. For example, the Legal Metrology Act, 2009 states that provisions of the IPC related to weights and measures will not apply; the Bill removes these provisions.
  • However, the Bill (like the IPC) overlaps with several other Acts such as those related to food adulteration, sale of adulterated drugs, bonded labour, and rash driving. Abortion continues to be an offence though it is permitted under certain conditions under the Medical Termination of Pregnancy Act, 1971. The Bill replacing CrPC retains the provision requiring maintenance of a parent though a special Act was passed in 2007 regarding this.

Definitions and Drafting

• The Bill replacing the IPC provides a person suffering from mental illness as a general exception from being an offender (this was called unsound mind earlier).
• The definition of mental illness is the same as in the Mental Healthcare Act, 2017.
  • That Act aims to provide medical treatment to persons suffering from mental illness, and, therefore, excludes mental retardation or incomplete development; it also includes abuse of alcohol or drugs. Consequently, the new Bill will provide full exemption to someone who is addicted to alcohol or drugs but not to a person who is unable to understand the consequences of their actions due to mental retardation.
• The three laws had a number of illustrations from daily life to clarify their provisions. Some of these illustrations have become obsolete but have still been retained. These include people riding chariots, firing cannons and being carried on palanquins. It may be useful to update these illustrations to events from modern life.

Conclusion

• These Bills will become the basis of the criminal justice system. Parliament should examine them with great care so that they create a fair, just and efficient criminal justice system.

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