Justice S Muralidhar Critiques New Criminal Laws for Lack of Real Change and Oversight of Key Human Rights Issues
Justice Muralidhar notes persistent unchanged aspects in criminal law post-independence, citing ongoing use of 1908 Criminal Law Amendment Act for banning organizations.
Senior Advocate and former Delhi and Orissa High Court judge Justice Dr. S Muralidhar recently commented on the impact of three new criminal laws that have been implemented. Speaking at the Rakesh Endowment Lecture series for Justice and Equity organized by the Rakesh Law Foundation & Roja Muthiah Research Library in Chennai, Justice Muralidhar expressed that these laws haven't brought about the significant changes or decolonization that some may claim.
He emphasized that despite 76 years of independence, certain aspects of criminal law remain unchanged. He pointed to the continued relevance of the Criminal Law Amendment Act of 1908, which is still utilized to ban organizations. In his remarks, Justice Muralidhar cautioned against overstating the transformative effects of the new laws, stating, "So, don't get taken away by the statements that you hear that these three new (criminal) laws have brought about dramatic change and decolonized the law. None of that stuff."
During his lecture on the theme 'Guilty Till Proved Innocent: Dark Areas of Criminal Jurisprudence,' Justice Muralidhar delved into the historical roots of preventive detention laws in India. He noted that the Defence of India Act of 1915 forms the basis for post-independence preventive detention laws. Moreover, he drew attention to bail provisions within these statutes, which he likened to the twin test present in laws such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA).
Regarding Article 22 of the Indian Constitution, which permits preventive detention, Justice Muralidhar stressed that such measures were intended to be temporary and employed only in emergency situations. However, he lamented that preventive detention has become a common legislative practice, with little judicial intervention, citing legal scholar Prof Upendra Baxi.
Justice Muralidhar underscored the importance of continuing the fight for justice, noting that the new criminal laws fail to address concerns raised in the Law Commission's 277th report regarding compensation for malicious prosecution. He highlighted provisions like Section 358 of the Indian Penal Code (IPC), which offers a meager ₹1,000 as compensation for wrongful arrest, and Section 211, which deals with framing false cases, as areas where the new laws fall short.
He emphasized that the new laws overlook critical issues such as encounters, disappearances, mass crimes, and crimes against humanity, which continue to occur with impunity in the country. Justice Muralidhar emphasized that addressing these real issues requires more than mere legislative changes, extending beyond the Indian Penal Code to a range of special and local laws.
In closing, Justice Muralidhar offered guidance to aspiring criminal lawyers, urging them to question assumptions and uphold the principles of justice. He emphasized the importance of defending individuals to the best of one's ability, highlighting fundamental rights such as the right to silence, the right against self-incrimination, and the right to have statements made to police officers not be used against them.
He urged lawyers to refrain from twisting facts and evidence but to present their cases diligently before the court. He likened a lawyer's duty to that of a doctor, who must treat patients regardless of their status. Similarly, lawyers should defend individuals without prejudice, leaving the determination of guilt or innocence to the courts.
