The Indian Criminal Law System and Its Distinction from The Canadian Setup

The Indian Criminal Law System

The Indian Criminal law system has been distributed under three major legislations that protect the country and its citizens from every possible criminal act that it can face in today’s society. The three major legislations are the Indian Penal Code 1860, Code of Criminal Procedure 1973, and Indian Evidence Act 1872. Other than these three, there are several other legislations pertaining to criminal law passed by the Indian Legislature like the Prevention of Corruption Act, Dowry Prohibition Act, Food Adulteration Act et cetera that are made to address specific issues.

Coming back to the significant legislation, the Indian penal Code is the official criminal manual of India which covers the substantial subject matters of the criminal law pertaining to the Indian context. The Code strives to provide the definition of the crimes and the specific punishments related to such particular crimes. The Criminal Procedure Code is the most significant procedural legislation that states the procedures, standards and conducts that are followed for the administration of the criminal laws in the country. It acts as machinery that helps in understanding the structure of the court system in India, the way to investigate criminal cases, collection of evidence, evaluation of the innocence or guilt of the accused, determination of the type of punishment, et cetera. In addition, it also comprises of provisions for dealing with public nuisance, maintenance of wife, child and parents, and prevention of offences among others. On the other hand, Evidence Act comprise of a set of rules and regulations that deals with the admissibility of different types of evidence in a court of law. The Evidence Act is based on the work of Sir James Fitzjames Stephen, who could be considered as the founder of the Evidence Act. It mainly consists of two types of provisions, one is about admitting the evidence by the court and the other one is its evaluation.

Type of Criminal Code

The Indian penal Code has shifted from being an adversarial criminal justice system to an inquisitorial criminal justice system over the passage of time since it was drafted. The Indian Penal Code was drafted by the First law Commission under the chairmanship of Thomas Babington Macaulay which was then submitted for approval to the Governor-General of India Council. It is based on the law of England and aimed to be free of peculiarity, technicality and superfluity. The Indian penal Code is the official criminal manual of India which covers the substantial subject matters of the criminal law pertaining to the Indian context. The Code strives to provide the definition of the crimes and the specific punishments related to such particular crimes.

It is a general penal code for India. It comprises of 23 chapters and 511 sections. It includes the different types of punishments and the general exceptions that the accused may cite for their defence. It comprises of provisions regarding abetment, criminal conspiracy, offences against the state, offences committed by or against the public, offences related to weight and measure, offences that affect public health and safety, offences affecting the religious sentiment of the people, offences against property, an offence against the human body, offences relating to breach of contract of services, offences relating to marriage, offences pertaining to the cruelty by husband or his relatives, the offence of defamation, the offence of criminal intimidation and the offence of attempting to commit or abet offences, among many other categories.

The Indian Penal Code is acknowledged universally as an effectively drafted code which was ahead of the time when it was drafted. It has been applauded by Nicholas Phillips, Justice of the Supreme Court of the United Kingdom for his efficiency and relevance even after a century. Irrespective of being concrete and strict, it has faced several controversies that have forced the Legislature to make suitable amendments over the years. The code has always been in debate for its strictness regarding matters like barring homosexuality (recently amended in 2018), attempts of committing suicide, adultery (struck down finally in 2018), death penalty or Capital Punishment even when the world has been through revolutionary changes. The Indian Penal Code Reform Committee has recommended the separation of investigation procedure from the powers of prosecution.

The Prosecutor

The Chief Prosecutor of India is the Attorney General who is the primary advocate of the Supreme Court of India. It is a Constitutional post which is appointed by the President of India. The post requires a person who has the qualification to be appointed as a judge of the Supreme Court of India which calls for an experience of five years as a Judge in any of the High Courts or an experience of ten years as an advocate in the country. The post of Attorney General has been created as an advisor to the ruling Government in terms of legal matters when referred to. He is meant to appear on behalf of the government. Unlike the Attorney General of the United States and Canada, the Attorney General of India is not vested with executive powers or duties. In addition, it must be noted that the Attorney General is not a government servant and has the liberty to appear for his personal clients, except for cases that would require him to stand against the government. He is prohibited from defending an accused in a criminal proceeding as it is the Government of India who is the main prosecution of a criminal case and as per the regulation, the attorney General cannot appear against the Government.

The Attorney general receives the assistance of the Solicitor General and a few other additional Solicitor General. The Attorney General is consulted for significant legal matters after it has been dealt by the Ministry of law.

The Court System

The Indian Criminal Law system is dealt by the Indian Judiciary, which exhibits a common law system for legal jurisdiction where customs, precedents and legislations are the sources of all kinds of law. The judiciary is comprised of different kinds of Courts, each of which are vested with different kind of power and duties. It maintains a strict hierarchy where the Supreme Court of India is the supreme decision-making authority. The Supreme Court, being the chief legal decision-making body, is vested with the duty and responsibility of safeguarding the provisions of the Constitution of the country, which is the supreme law of the land. It is known as the ‘Guardian of the Constitution’ and it makes sure that no law is made by the legislature that violates the Constitution. It has a narrower original jurisdiction (refers to the institution of fresh legal matters) in comparison to the lower courts for it mainly devotes its time in dealing with the appeals that originate from the lower courts. Following the Supreme Court, the High Courts take the charge of dealing with the matters concerning the 29 states of the country. While, the District Courts are vested with the responsibility of looking after the legal matters of the district (each state is divided into several districts), both civil and criminal separately.

Distinction from the Canadian set-up

There are certainly unique as well as controversial features of the Indian Criminal law system in comparison to the Canadian criminal law system. One of the major distinctions would be the removal of the jury system in the Indian legal system, both in terms of civil and criminal matters. In 1960, the jury system was abolished after the acquittal of Kawas Nanavati in the case of K. M. Nanavati vs. State of Maharashtra where it was held that the jury was biased and influenced by public opinion and media pressure. Comparing it with the Canadian system, it is a stark difference in cases of a criminal proceeding where trial by jury is still in practice and it is regarded as a fundamental feature of a democratic society. Another significant difference would be the prevalence of Capital Punishment or death sentence in India, which is strongly debated on. While in the case of the Canadian criminal law system, the Government strongly opposes the use of capital punishment in any case. In addition, the offence of attempting to commit suicide is considered as an offence in India under Section 309 of the Indian penal Code; however, the Mental Health Care Act 2017 speaks strongly against the implementation of this provision of the Indian Penal Code. While the Canadian Parliament removed the offence of attempting to commit suicide in 1972 from its Criminal Code as it was argued that deterrence in this matter seemed too harsh and unnecessary. However, the Canadian government has a codified provision for punishing any person who might be an abettor or counsel who has assisted such suicide, under section 241 of the Criminal Code.

References

• K. M. Nanavati vs. State of Maharashtra 1962 AIR 605
• Mental Health Care Act 2017
• The Canadian Criminal Code
• The Code of Criminal procedure 1973
• The Constitution of India
• The Evidence Act 1872
• The Indian penal Code 1860