From Danda To Nyaya: How Change In Names Will Affect Mindset Of The Criminal Justice System

Kunal Apastamb and Piali Thatte

Jan 10, 2024, 02:19 PM | Updated 02:19 PM IST

Criminal jurisprudence in its truest essence is based on the aspect of ‘reform’. (Representative image)
Criminal jurisprudence in its truest essence is based on the aspect of ‘reform’. (Representative image)

In the era when Indian criminal laws were formed, penalising was at the forefront, because it ensured the dominance of the coloniser. Ensuring justice and safeguarding the rights of the colonisee was not the objective of the system.

The names of the laws — Indian Penal Code,1860; Criminal Procedural Code, 1973; and Indian Evidence Act, 1872 ensured that the prosecutors had a mindset of penalising the colonisee.

The key aspect of a just system is to create a sense of innate security. The system should adopt mechanisms that create an environment for protecting the victims.

The system cannot work with a mental framework where deterring criminals is the only goal and safeguarding citizens’ rights is a by-product of the process. The stakeholders must differentiate between duty and obligation, and not contribute to a skewed deterrence system.

In a democracy, a citizen-centric approach to safeguarding rights should be at the forefront and deterring criminals is part of that process. The reframing of criminal codes to Bhartiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Sakshya Vidheyak, 2023 is an attempt to re-calibrate the system.

‘Penalty’ and ‘punishment’ are neither two sides of the same coin, nor are they similar.

Punishment at the very core, seeks to reform the criminal mindset and sensitise them about the gravity of the crime. Whereas, the penalty does not seek to reform the individual, it just perceptively creates fear.

Post-independence, the nature of the system did not change. Even today a common citizen would want to stay away from the police and the courts.

In a democracy, the laws must be citizen-centric, where Nyaya is at the forefront. It should not serve the dominance of the state by following a system of Danda. This attitude of ‘victim shaming’ and ‘criminal blaming’ is colonial at its very core.

Nyaya is an all-encompassing term that goes beyond ensuring justice by creating an inherent moral understanding of performing one’s duties. Justice is the outcome of a system, whereas Nyaya is the nature of the system itself. The Nyaya prakriya sees all stakeholders equally.

Today, the police and lawyers often assert certain dominance, but the change in laws makes them accountable. It is a first-of-its-kind citizen-centric legal structure, that has community service as a form of punishment. It also addresses judicial pendency seriously and insists on forensic evidence collection.

Criminal jurisprudence in its truest essence is based on the aspect of ‘reform’. Etymologically, Danda means punishment, not leaving much room for any reformative change.

Whereas, Nyaya in Sanskrit is ‘that by which man is guided’, which inherently is a system that seeks societal reform. The contextual understanding of reform lies with the individual, and then within the system.

The names of the Acts attempt to trigger a change and inculcate a reformative attitude in the police and legal system.

In pursuance of the change of names, prioritising the protection of victims in cases of heinous crimes against women and ensuring effective investigation by way of forensic investigation and time-bound reporting is one of the highlights of the new legislation.

The change in the names does not mean that the entire system is revamped, it simply seeks to change the attitude of the stakeholders.

According to the Union Home Minister Amit Shah, the new legislations give procedural reasoning and create a change in perception.

By using positively framed terminology, there is an attempt to change how the system sees the victim and the accused.

Even though the tangible action remains the same as deterring the criminal, it is not the target anymore. The outcome is to ensure Nyaya to the victim and Danda now becomes the means to achieve Nyaya in its truest form.

To ensure that this true spirit of Nyaya is embodied, the right use of words and interpretation is imperative. The words ‘Bhartiya’ and ‘Nyaya’ connote a positive framing and consciously-framed words slowly change the social mindset.

The words we use and the way they are framed alter our behaviour and actions. For example, asking people to start using cloth bags, and start eating healthy food has worked better than asking them to stop using plastic bags or stop eating junk food.

Language shapes societies and takes the culture forward. The way words are framed affects our emotions and that response translates into our actions.

When we listen, read or use a certain word, all the schemas (information-storing mechanism of our brain) get activated at once, which helps in retrieving all the memories and functions oriented with that word.

In a classic study, it was observed the students primed with old-age-related words walked slowly after leaving the lab, as compared to the students who were in the neutral priming condition. It shows that words that trigger certain emotions alter our physical actions.

Such ‘subconscious priming’ was also observed when participants primed with ethical and positive words (donate, fair, righteousness) activated the moral standards and influenced their actions in an affirmative way, as compared to participants primed with negative words (cheat, steal).

Negative priming creates a bias in our minds. This is harmful especially when the words are related to people around us, because it will define their schema in our mind.

Framing the words in the right terminology is important, may it be by using correct pronouns or words to describe someone’s identity or may it be replacing the term Danda with Nyaya.

The current criminal justice system based on the idea of deterrence has created a schema that leads to a mindset of penalising. All stakeholders within the system, right from the police, judges, lawyers and citizens are conditioned to think in a retributive manner.

This colonial conditioning has been accepted and its continued usage seems to have a deterrent impact on our society. Better words will lead to a better view and approach of all law enforcement agencies which are brought under one umbrella within the Indian criminal justice system.

When positively framed words are frequently used by the stakeholders, the essence will be solidified in action.

The Panch-Praan pledge guides these proposed changes. The second pledge seeks to embrace Bharatiyatva and shed the traces of a colonial mindset.

The changing of the names to Nyaya and Nagrik Suraksha will instill a sense of reformation. The priming of all the stakeholders and changing the psyche of the society is a slow process. The names might be questioned now, ridiculed for using an Indian language that is supposedly seen as backward (this is also primed!). But a decade from now, the positive framing will lead to ensuring Nyaya and Nagrik Suraksha.

This change, at its very core, seeks to push the envelope by doing away with the lingering colonised effect. It instils a sense of Indianness within the legal framework and makes it more connected and relevant to today’s Bharatiya Nagarik.

Kunal Apastamb has completed his MSc in Behavioural Economics from the University of Warwick, United Kingdom. He was previously working as a Research Associate at the Centre for Behavioral Science at the Indian Institute of Management, Ahmedabad. His area of research interest includes behavioural public policy. He seeks to contribute to the growing behavioural science field in India. Piali Thatte is an advocate at the Bombay High Court. She has an experience in corporate law. She has previously also written about jurisprudence in international journals. Her areas of research interest include the growing relevance of digital public infrastructures in India and its interplay with fiscal policies.

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