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A Priceless Legacy~II

Soon after Independence, all pre-existing laws and codes were naturally tested on the touchstone of the Constitution, including the three Acts that regulated the criminal justice system in India prior to independence. The Parliament of free India adopted these Acts verbatim, without the slightest change.

A Priceless Legacy~II

(Representational image: iStock)

Another certitude of a modern secular democracy is the abolition of class distinctions and racial divisions, without which secularism is ill-served. The Code had in-built safeguards against any favouritism on grounds of caste, class, or status and social standing which found no mention therein. The Code abolished all traditional discrimination based on class, race and majority or minority religion that had plagued the Great Indian Civilization for millennia.

All the denizens residing in the ancient land of Bharat were overnight transformed into equal ‘citizens’, with equal protection of law to safeguard them against the State and its instrumentalities. The civil magistracy was enjoined by law to respect and treat all citizens as innocent until proven guilty by an independent court of law. Another basic certitude of modern democracy is the freedom of the Press. By law, every magistrate was empowered to proceed against any citizen suspected of wrongdoing. But there was an in-built check on the independent field magistrate’s powers to proceed against the Press, which power was reserved with the Government.

A District Magistrate or any authorized civil magistrate could issue a search warrant for recovery of any “objectionable article or obscene object” by the police and impound the same. But the magistracy was barred from issuing a search warrant without the written authority of the Government to impound a newspaper or a book (even if it contained anything objectionable). This was designed to ensure a more mature and responsible consideration at the highest levels in the Government when dealing with the Press.

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Preventive criminal jurisdiction was conferred by the Code on the independent field magistracy to obtain security for good behaviour, or for keeping the peace in public from any suspected person. It also empowered the field magistracy to obtain security from anyone who, in its opinion was “disseminating seditious matters”. But the Code enjoined on the magistracy not to proceed against someone who happened to be an “editor, proprietor, printer or publisher” of any newspaper or a book. This authority, like the authority to issue a search warrant against a newspaper was reserved with the Government, again ensuring a more mature and responsible consideration in the case of the members of the ‘fourth estate’.

The Code, framed way back in 1833 can be said to be the first draft of independent India’s Constitution which was conceived more than a century later. The Constitution identified all the inhabitants of India as equal citizens of India based on their domicile, not caste or religion. They had equal protection against arbitrary arrest or State action. As for the criminal justice system, the Constitution of independent India enshrined these concepts as Fundamental Rights.

And some of the provisions incorporated in the Code of 1833 were read into the enumerated Fundamental Rights by the Supreme Court of India decades after the Constitution was first promulgated. Thus, as a basic safeguard of freedom and liberty, an accused is presumed to be innocent till proven guilty. The Prosecution must first bring the charge before the accused can be asked to defend himself in an open court of law. That an accused shall not be forced to be a witness against himself was enshrined as a Fundamental Right in the Constitution of free India.

The 1833 Code contained a provision that an accused cannot be asked to testify in a criminal proceeding without his consent in writing. Well aware of the cruel legacy of the ‘Daroga Raj’ in India before the advent of the British, the law forbade the police from recording the ‘confession’ of an accused. The classical concept of ‘res judicata’, drawn from Roman jurisprudence was incorporated in the 1833 Code. Prosecution was barred against a citizen for the same offence twice. An accused was allowed by law to be represented by a pleader of his choice.

A century and a half later, the Supreme Court of India read into the chapter on Fundametal Rights in the Constitution an “unenumerated” Right ~ an accused has a Fundamental Right to be represented by a lawyer of his choice. Similarly, the Prosecution must first establish its case prima facie, before the Defense can be asked to present its case. One of the most fundamental of Fundamental Rights enumerated in the Constitution of free India is the protection against arbitrary arrest and detention by the police.

Every person who is arrested and detained in custody must be produced before the nearest magistrate within twentyfour hours of such arrest. The 1833 Code contained an identical provision, enacted a century and a quarter earlier that a police officer arresting a person without a warrant shall produce him before the nearest magistrate within twenty-four hours! The checks and safeguards built into the CrPC arguably make it the first draft of the Chapter on Fundamental Rights in the Constitution of independent India. The abiding genius of Macaulay is nowhere more manifest than in the ‘preamble’, so to say to the chapter on Fundamental Rights in the Constitution of free India.

“All laws in force in the territory of India immediately before the commencement of this Constitution (1950), in so far as they are inconsistent with the provisions of this Part (Fundamental Rights), shall, to the extent of such inconsistency, be void.” The term ‘law’ includes any ordinance, order, bye-law, rule or regulation that may have been incorporated in any law framed and enforced by the British prior to independence. Soon after Independence, all pre-existing laws and codes were naturally tested on the touchstone of the Constitution, including the three Acts that regulated the criminal justice system in India prior to independence.

The Parliament of free India adopted these Acts verbatim, without the slightest change. As ‘police’ is a State subject in the Constitution, the Acts were required to be independently adopted by the states as well, before these could be enforced there. Or, in the alternative, to frame new state-wide laws to fully conform to the Fundamental Rights in the new Constitution. In a further tribute to the work of a law genius, all the states, like the Parliament of free India, unanimously adopted these Acts verbatim. The CrPC is a detailed, voluminous law running into almost 500 sections.

These cover not only the rights and safeguards of citizens who may be accused of crime but also citizens who may be indicted for civil misdemeanours. From time to time, ever since the introduction of the Constitution in 1950, various provisions of the Code, as distinct from the entire Act itself, have been challenged right up to the apex court, as being invalid. Not a single provision has ever been held by the Supreme Court of independent India to be inconsistent with the Fundamental Rights as enshrined in the Constitution. Or even with any of the Directive Principles of State Policy.

In sum, these laws are a precious, irreplaceable legacy bequeathed by the British. These continue to define the basic freedoms and liberties of citizens. From time to time, these flawless masterpieces have been tinkered with, to “update” or to “amend these to meet the modern challenges”. In the memorable words of Justice Krishna Iyer, former judge of the Supreme Court and one of the greatest jurists of modern India, such tinkering “has not advanced the cause of justice but the cause of justices, has not promoted the rule of law but the rule of lawyers”.

(Concluded)

(The writer is a retired IAS officer)

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