18 August 2023 : Indian Express
Indian Express
18-August–2023
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1. STANDING THE GROUND
Context:
The Latest round of border talks between India and China did not lead to any solution, according to the official readout after the meeting.
Background:
- More than three years and three months have passed since the border standoff started in eastern Ladakh.
- This has led to an unprecedented buildup of troops on both sides.
- Over the last three years, the Indian Air Force is estimated to have airlifted nearly 70,000 troops and heavy platforms, including tanks, and artillery guns weighing over 9,000 tonnes, as part of efforts towards enhancing the overall operational preparedness in eastern Ladakh.
Current Scenario:
- The government has been making the case for the last couple of weeks that it has built infrastructure in the border areas during the previous nine years, leading to faster deployment of forces since the standoff.
- Indian and Chinese foreign ministers and national security advisors had met last month before the Corps Commander level talks.
- This meeting has raised hopes that there could be a breakthrough—before Prime Minister Narendra Modi and Chinese President Xi Jinping meet in Johannesburg for the BRICS leaders summit on August 22-23.
Earlier instances where both countries resolved their issues:
- In 2017, the two-and-a-half-month Doklam border standoff was resolved just days before Modi and Xi met in Xiamen for the BRICS leaders’ summit.
- The three-week 2013 standoff in Depsang was resolved weeks before then-Chinese Premier Wen Jaibao visited India.
India’s present position:
- Even though the window of opportunity exists between now and Chinese President Xi’s visit to India for the G20 summit, India has made it clear so far that the border standoff affects bilateral relations, and only a complete de-escalation will lead to normalcy in the ties.
- While disengagement at the specific friction points can be achieved, a broader de-escalation will take time.
- That is because troops and equipment will take time to be moved from the border areas.
Example of a similar long deadlock between both countries:
- It is similar to the Sumdorong Chu standoff in 1986-87, which took almost seven years to disengage and de-escalate completely.
How Chinese political leadership is hand in glove in this deadlock:
- The fact that the border standoff started months after the 18th meeting between Xi and Modi at the Mamallapuram informal summit indicated that the buildup was at the direction of the political leadership in Beijing, not a local military operation.
- It became even more apparent that it had the sanction of the Chinese Communist Party since the standoff has sustained over the last three years.
What should be India’s stand on this?
- Delhi must not budge and demand the complete withdrawal of troops and de-escalation before it normalizes ties. Xi’s visit next month gives India some leverage; the government must use it.
2. Missed opportunity
Context:
- The recent introduction of three Bills to reform India’s criminal laws has opened up debates about its utilities.
- Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Bill will be replacing IPC, CrPC, and Indian Evidence Act.
- The task of testing their sustainability, efficacy, adherence to rule of law, and justice delivery capacity, becomes paramount.
Utility:
- Criminal Law’s promise as an instrument of safety is matched only by its power to destroy.
- It is arguably the most direct expression of the relationship between a state and its citizens.
Historical Background
- Home Minister Amit Shah, like Lord Macaulay, will be remembered for initiating a sea change in Indian criminal law.
- The 42nd report of the Law Commission, 1971 had proposed a revision of the Indian Penal Code (IPC). But the amendments in 1972 and 1978 lapsed due to the dissolution of Lok Sabha.
- In 1860, when the IPC was enforced, it was certainly ahead of its time. Macaulay had himself favoured regular revision of the IPC.
- It was widely appreciated as a state-of-the art code and was, indeed, the first codification of criminal law in the entire British Empire.
- Today, it is the longest-serving penal code int he common law world.
List of Issues with the new codes:
- Even though the Modi government has taken the extremely difficult task of improving the IPC in terms of precision, comprehensibility and accessibility, unfortunately, for most crimes, the new code has not been able to improve the definition clauses and has merely clubbed penal sections with the definition sections.
- The term “subversive activities” again widens the scope with no definition of subversive activities given in the code.
- The inclusion of financial means in this section is unnecessary as terror financing has been included in the offence of terrorist acts, where the stringent special law of UAPA has been incorporated in the general code itself.
- The new code does not improve definitions of words like “culpable homicide”, ”murder” except for punishing killings in mob lynching by five or more persons without using the term “mob lynching”. But unlike ordinary murder where minimum punishment is life imprisonment, the new mob lynching murder may have just seven years’ imprisonment.
- Having sex with the promise to marry has 10 years imprisonment as punishment.
- The retention of the death penalty shows the government continues to believe in the dated ideas of retribution and deterrence. It keeps India in the company of China, USA, Pakistan, Iran, Saudi Arabia etc.
- The death penalty has been provided for the rape of a minor. The much-abused crime of cruelty has not been made gender-neutral, despite this being one of the rationales for the new code.
- The insanity provision has replaced the wider idea of “unsoundness of mind” with just “mental illness”.
- The deleted Section377 was so far used in cases of non-consensual sex or sexual assault between two adult men. The Supreme Court had only decriminalized consensual homosexuality.
- The new code also has not made any improvements on the inadequate hate speech provisions of Sections 153A and 153B.
- The offence of adultery reappears in a new avatar as the offence of having sex on the false promise of marriage or promotion etc.
- Criminal conspiracy was made a substantive offence only in 1913. The offence is objectionable because it was added to the code by the colonial masters to deal with political conspiracies. A code committed to the constitutional ideals of the rule of law and democracy should not have it.
- Criminal defamation has a chilling effect on free speech and should have been decriminalized. Unfortunately, even the punishment of two years imprisonment has been retained by Section354(2), though community service has been added as an alternative punishment.
- The offence of blasphemy has been retained though most countries in the world have decriminalized it. Liberal India should not be seen in the company of regressive Islamic states.
- The new code has also retained membership of an assembly without any participation in the actual crime as an offence. There have been instances where people have been sentenced to death and hanged, despite not even being present at the scene of the crime.
Positive changes in the codes:
- It has certainly widened a few definitions in cases like rape and sedition though the word “sedition” has been dropped.
- The requirement of men’s rea or guilty mind with the use of the expression “purposely or knowingly” and “secession or armed rebellion” and removal of “disaffection towards government” are welcome changes.
- In a welcome move, community service has also been provided for first offenders in cases of theft that involve values of less than Rs 5,000 and for the misconduct of drunken people in public places.
- The inclusion of forensic investigations in major crimes is to be appreciated. A good criminal justice system must be accused-centric, as it pits one little man against the might of the state.
Way Forward:
- Criminal justice policy is largely irrelevant in reducing the incidence of crime. Achieving higher conviction rates may be a good goal but it requires that innocent people not be prosecuted.
- It remains to be seen how the new laws will be instrumental in delivering justice to the society.
- Only the coming decades can tell to what extent the three new Bills meet the stated objectives of improving law and order, simplifying the criminal justice process and achieving the laudable goal of “ease of life”.
- Ideally, making criminal law compatible with the constitutional vision should be the foremost object of the new codes.
For Enquiry
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18 August 2023 : PIB
18 August 2023 : The Hindu Editorial Notes PDF
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