DailyPost 2707
THE “OPERATIVE CRIMINAL LAW”
We see and some on other side of law experience the operative criminal law. There are any number of opinions aired on the operative criminal law. We mistake them as opinions on registration of cases, investigation, judicial trial and at times on the whole of the criminal justice system. Off late the debates on operative criminal law and various shades of it are happening in full bloom across the political spectrum. When we have the penal law in place and criminal procedure and evidence as well, then what is this operative criminal law.
How can operative criminal law be at variance with the codified one? What is the “operative criminal law”? Within the parameters of codified criminal law, the use of discretion and practice to negate its fairness and objectivity is the operative criminal law. The operative criminal law does not operate in every instance but when it does and quite frequently so, it delivers results in the way the legal perpetrators want it happen. Very rarely it misfires. The victim keeps crying foul but the straightjacketed system does not provide for that scope.
The criminal law comes into action when cognizance is taken of the crime. But the blatant bodily crimes and trademark property offences, the liberty of taking cognizance or not can be lethal. It becomes a matter of choice. One criminal can be booked and other one can be let off in a style – as if he was never a criminal. The way a case is handled during the investigative process and beyond has a direct bearing on the outcome of the case. Here also the operative criminal law comes in play at quite a few times. The court at the end of the day is forced to decide primarily based on the evidence produced. The outcry for SIT and cases to be tried outside the concerned state speaks volumes about the operative criminal law.
Different investigative agencies have different conviction rates depending on their competence and handing over a case to an agency with good investigative skills / conviction rate is also at times an outcome of the operative criminal law. In a country where the process itself is a punishment, any non-genuine criminal case registered is a manifestation of the operative criminal law. Some cases are registered only in states where a concerned political party is in power, is a perfect example of operative criminal law. The police overacting or crisscrossing the country in flimsy cases also means the same things. Just think of the same criminal act either attracting simple rioting sections or NSA sections. And above and beyond the powers of the governments to withdraw cases and at times mindboggling instances of parole and remissions.
OPERATIVE CRIMINAL LAW IS A SPOKE IN THE FAIRNESS OF THE CRIMINAL JUSTICE SYSTEM.
Sanjay Sahay
Have a nice evening