New criminal statutes have not decolonized the law: Justice S. Muralidhar

The three new penal laws that came into force recently have not introduced dramatic changes or decolonized the law, says Senior Advocate and former judge of the Delhi High Court and Orissa Dr. S Muralidhar said Sunday.

Dr. Muralidhar emphasized that even after 76 years of independence, certain aspects of criminal law remain unchanged, citing the Criminal Law Amendment Act of 1908, which is still used to ban organizations.

“So don’t be distracted by the statements you hear that these three new (penal) laws have brought about a dramatic change and have decolonized the law. None of that.” noticed Dr. Muralidhar op.

He gave a lecture on this theme ‘Guilty until proven innocent: dark areas of criminal jurisprudence’ as part of the Rakesh Endowment Lecture Series for Justice and Equality organized by Rakesh Law Foundation & Roja Muthiah Research Library in Chennai.

In his speech, Justice Muralidhar said that the Defense of India Act, 1915 forms the basis for preventive detention laws after independence. He explained that the bail provisions in the statute serve as the precursor to the dual test seen in identical provisions in a range of statutes such as the Unlawful Activity (Prevention) Act (UAPA), the Prevention of Money Laundering Act (PMLA) and the Companies Act.

Further, with reference to Article 22 of the Constitution of India, which permits preventive detention, Dr. Muralidhar asserted that the statutes of preventive detention are supposed to be temporary measures in emergency situations.

However, it has become a legislative custom to rule through preventive detention and a judicial custom not to interfere with such preventive detention, he said, quoting Prof. Upendra Baxi.

However, the fight must continue, Dr. Muralidhar said, stressing that the new criminal laws do not address any of the issues raised in the Law Commission’s 277th report on compensation for those maliciously prosecuted.

He pointed out that Section 358 of the Indian Penal Code (IPC), which awards only ₹1,000 as compensation for wrongful arrest, has been upheld in Bharatiya Nyaya Sanhita (BNS). Section 211, which deals with framing a false case, also provided little or no compensation and has also been retained in the new law, he pointed out.

“There is no talk of encounters, no mention of disappearances, no talk of mass crimes. There is no mention of crimes against humanity. The new laws do not address the real problems where human rights violations occur with impunity in our country. It is not just about the IPC, but a range of special and local laws.” said Doctor Muralidhar.

Towards the end of his lecture, Dr. Muralidhar encouraged students who want to become criminal lawyers to have role models to emulate and not to take one’s status as a criminal for granted until they are satisfied themselves.

“As a lawyer, you have to know that whatever you are told: ‘This person is a criminal, a terrorist,’ don’t take it for granted. Question it. Ask to be satisfied.” he said.

As a lawyer you have to stand up for everything someone brings up in court. He emphasized a suspect’s right to remain silent, the right against self-incrimination and the right to call for non-action following their statement to a police officer.

“Do not distort facts or evidence, but please present the person’s case to the Court. That is your fundamental duty as a professional. Just as a doctor will not refuse to operate on a terrorist who needs heart surgery or a kidney.” transplant, you as a lawyer are not allowed to make these choices. Leave it to the courts whether the person is guilty or not. said Doctor Muralidhar.