Bharatiya Nagarik Suraksha Sanhita

Full Text | Central Hall: Do the New Criminal Laws Really Tackle Colonial Foundation?

Kapil Sibal discusses how the new laws have held on to their colonial past with three eminent guests: Congress’s P. Chidambaram, Justice Madan Lokur and Justice Mukta Gupta.

With the hasty introduction and drafting of the new criminal laws, Kapil Sibal, along with Congress leader P. Chidambaram, Justice Madan Lokur, and Justice Mukta Gupta, engage in a discussion about the so-called modernisation and actual expansion of colonial-era laws. They delve into issues such as peculiar nomenclature, potential threats to civil liberties, unchecked powers granted to the police, and inconsistent precedents, highlighting the regressive nature of these laws.

The following is the full text of the discussion, edited lightly for syntax and clarity.

Kapil Sibal: Namaskar, as you know, as of July 1, 2024, three new criminal laws have come into force. Instead of the old Indian Penal Code (IPC), we have the Bharatiya Nyaya Sanhita, called BNS; instead of the Criminal Procedure Code (CrPC) of 1973, we have the Bharatiya Nagarik Suraksha Sanhita (BNSS); and instead of the Evidence Act, we have the Bharatiya Sakshya Sanhita. Now these laws will be scrutinised in time to come by courts, but there’s a lot of controversy about the nature of these laws and the manner in which they have been drafted. Now what’s important is that the home minister, when introducing these laws in 2023 — and they are now in force from July 1, 2024 — made a statement that he wants to get rid of the yoke of the colonial era, that these laws were all laws of the colonial era, and that now we have drafted more modern laws getting rid of the colonial era.

Ninety to ninety-five percent of the provisions of the IPC, the Evidence Act, or the code of criminal procedure have been retained. Only 5–7% have been changed, and those changes are also the subject matter of a lot of controversy. Now, just before we introduce the panellists who are here to discuss, and we have really very eminent people, I just want to mention one fact. There is a provision in our Constitution, which is Article 21, which says that no person shall be deprived of his life or liberty save in accordance with procedures established by law. So, the three criminal laws fall within this fold because the penal code, as it was, took away your liberty and your life if you committed an offence under the penal code. The procedure on the basis of which you were to be tried is the criminal procedure code, which is also prescribed by law under Article 21, and the manner in which the facts have to be proved for you to be convicted is the Evidence Act.

So, the three laws are part of Article 21, so we’re going to examine whether these laws are at all consistent with Article 21 of the Constitution or not. But before we do that, let me introduce the panellists that we have. Mr. Chidambaram, as you all know, a famous and most eminent lawyer for years, has been, I think, six-seven times a Member of Parliament from Sivaganga (now he’s given it up and Karti is now a Member of Parliament there). He presented the dream budget of 1997; before that, he’s been Minister of Commerce; before that, in Rajiv Gandhi’s time, Deputy Minister of Commerce, Minister of the Department of Personnel, presented nine budgets; he has been the finance minister and the home minister. So, you know, he is the best person to really talk about the government side as to how laws are framed and how these laws are inconsistent. We have Justice Madan Lokur, who, of course, as you all know, has been Chief Justice of Andhra, Chief Justice of Guwahati, was a senior advocate, then became an Additional Solicitor General (ASG) for a while, and then he’s been a judge in the Supreme Court for several years with several landmark judgements, especially in the context of the environment. We have Mukta Gupta, who, I didn’t know, did your B.A. in Zoology. [Mukta Gupta: I’m a science student]. You’re a science student. I never knew that, but I discovered it. She’s been a judge of the Delhi High Court from 2009 to 2022. She has rendered some remarkable judgments. She was standing on the criminal side of the National Territory of Delhi. She was with the CBI for several years, and she’s done the trial as a prosecutor in the parliament attack cases, the Nitish Katara case, and many other important cases. She is now lecturing on these laws all over the country, also in the IAS Academy.

So, we have three really eminent participants in this, say, dialogue. Let me start with you, Chidambaram Ji. Is this getting rid of the British era?

P. Chidambaram: I’ve said it’s a posthumous tribute to Lord Macaulay, whose 90 to 95% of the Indian Penal Code has been retained. There are 511 sections—23 plus two chapters. 18 chapters have been cut and pasted. Not a word has been changed, and not a comma has been changed. So, in fact, you have conceded and admitted your inability to improve upon the language of Lord Macaulay. So, what colonial law have you overhauled?

I am objecting to the manner in which these new laws were drafted. If you are revising the Indian Penal Code, which is of the year 1860, the Indian Evidence Act, which is of the year 1872, and the CRPC, which is of the year of the year 1973, you should have sent it to the Law Commission. What is the Law Commission for? The Law Commission is only for the purpose of advising the government on how to revise laws. If you are contemplating a complete overhaul of the law, you should have sent it to the Law Commission. The law commission was bypassed. You handpicked a few professors at universities who held full-time jobs, and they were able to devote part-time to this drafting exercise, and they have done their best, which is not good enough. That is why you have these complete copy-and-paste laws. I object to the procedure, and it’s certainly not a complete overall review of the criminal laws.

Kapil Sibal: Well, Madan Ji, what is your view on this?

Madan Lokur: Yes, I agree with him that, you know, there are a few things like he has said about the colonial aspect. Now there are some expressions that have been used in the Indian Penal Code. “A woman quick with a child” is an expression I don’t think anybody has heard of for the last 100 years, right? But it’s there in the BNS. Then you have an instrument for some kind of surgery called a trepan. I don’t think anybody has heard of that instrument. And that is used in the illustration in the IPC and also in the BNS in case a person falls off his horse and injures his skull, and the surgeon uses a trepan on him. Now, how many people do you know of who fall off a horse, injure their skull, and there’s a surgeon hanging around with a trepan?

I mean, it’s just an exercise undertaken for the heck of it. That is one. The other thing is that I’m a little upset at the use of the word ‘Bharatiya’. The Indian Penal Code, Indian Contract Act, and Indian Succession Act were all drafted by the British parliament and applicable to India. Now why do you need to use the word ‘Bharatiya’ or ‘Indian’ for a new law? I mean, the Indian Parliament is doing it. Just call it the Nyay Samhita.

Kapil Sibal: India won the Cricket World Cup this time in T20.

Madan Lokur: Yeah, so why do you want to use the word ‘Bharatiya’? I mean, I don’t have anything against the word ‘Bharatiya’ for Indians, but it’s not necessary for a law drafted by the parliament of India for Indians. Are you going to call all our, say, the Biodiversity Act, which is being enacted, the Bharatiya Biodiversity Act? Are you going to call the Finance Act the Bharatiya Finance Act? Why are you doing this?

Kapil Sibal: Let me take this, since it’s very interesting. You mention this, but it’s ‘Bharatiya Nyay Sanhita’. What I don’t understand in this title is that under the penal code of the Nyay Sanhita, who prosecutes you? The state. An individual doesn’t prosecute you, right? What’s the purpose of this prosecution? That somebody has committed an offence not against one person but against society. All these offences are offences against society, so the purpose of the law is not justice. The purpose of the law is to punish him. So how do you use the word ‘nyay’? ‘Nyay’ is when one person is making out a case against another person and the court decides as to who is right. That’s when it’s justice. Here, you’re punishing. The intent of the law is to punish the individual. Therefore, ‘Bharatiya’ and ‘Nyay’, according to me, are words that are inconsistent with the intent of Article 21.

Also read: Full Text: Why Indira Jaising Thinks the New Criminal Laws Should Be Deferred

Mukta Gupta: My take on the BNS is that its preamble says it’s an act to consolidate the penal provisions. They have introduced some penal provisions from special statutes, like MCOCA, GCOCA, and APCOCA (Maharashtra/Gujarat/Andhra Pradesh Control of Organised Crime Act), where organised crime is bunched. They have been brought in in BNS as sections 111 and 112. The definition is verbatim. Now the effect of this is that the police are at liberty to use either the BNS Provisions or the special enactment. Similarly, Section 113 BNS has an offence of terrorist act. The definition is again the same as in the in the UAPA (Unlawful Activities Prevention Act).

It is the discretion of the police to either take the BNS route or the UAPA route. The procedures are different for both. If there are certain presumptions available to the prosecution, there are certain checks that are in those special statutes. If they wanted to amend and consolidate the acts, they would have brought these provisions into BNS at the same time but not repealed those special statutes. They could have consolidated all the penal provisions into one statute, as it would have made it much simpler than going to different statutes, and the interpretation of one provision would have been applicable to all.

P. Chidambaram: Electoral offences of the RP Act (Representation of People Act) have been brought into the new law.

Kapil Sibal: But coming to the issue of the hangover of the colonial era, there are two provisions on which I want your comments. One is to arrest a person on suspicion and keep him in police custody for 15 days. There is no penal code in the world that allows the police to keep you in custody for 15 days. There is no such parallel provision in the world. So that’s the hangover of the colonial era. What is the reason for police custody? Do you have the right to investigate? You investigate. You find material? You punish me, or you prosecute me. Why do you need police custody? This was done when the British were ruling us. This is the hangover of the colonial era.

Two is sedition. That’s the hangover of the colonial era in a much wider form. The moment you threaten the security or integrity of the state, you can be put away. These are the two real provisions that were part of the colonial era, and they have retained them. What is the basis on which you say that you are getting rid of the colonial era? In fact, you are perpetuating the provisions of the colonial leaders. You [Mukta Gupta] would know better in which country of the world you have police custody.

Mukta Gupta: All over the world, the basis for arrest by the police is reasonable grounds to suspect, and that is not the subjective satisfaction of the police officer. Here, the word used is ‘reasonable suspicion.’ What was used in Section 41 of the CrPC has been retained here. When the word used is ‘reasonable ground’ it shows that there should be some material with the police officer to affect the arrest. So, there is that dichotomy that continues in these provisions, plus there is no congruence. They have brought the provisions of registration of FIR ‘irrespective of the area where the offence is committed’. We had Section 154 of the of the CrPC, and now it’s Section 173 of the BNSS. Now the only addition in 154-1 CrPC is ‘irrespective of the area where the offence is committed’. So, if an offence is committed in one state, the FIR can be registered in another state, including the investigation carried out and all incidental procedures, including the arrest carried out, which is further fortified by Section 185 of the of the BNSS, which says that the confession will be recorded by the magistrate where the FIR is registered.

Kapil Sibal: Therefore, Gujarat police can come to Delhi and arrest anybody and then investigate. You can get a confession, but the CH sheet will have to be filed correspondingly.

Mukta Gupta: Correspondingly, the provisions where the trial has to take place are verbum, the same as CrPC, where 177 to 184 CrPC is verbatim in 197 of the BNSS.

P. Chidambaram: How can the police of one state investigate a crime committed in another state? Even the CBI cannot investigate without consent. Part of the cause of action or part of the crime must have been committed within that state.

Mukta Gupta: No, the word uses ‘irrespective of the area.’

P. Chidambaram: Contrary to federalism?

Kapil Sibal: This is what they will do. They will arrest anyone at any place. This is much worse than the colonial leader law.

P. Chidambaram: I think that they have given a greater latitude to the police and have restricted the discretion of magistrates. As far as I understand, 15 days of police custody, irrespective of the area, is 15 days in the first 15 days. That is the present position in the way the present law is being applied. Today, the 15 days can be divided into parts and spread over 40 to 60 days, for a total of 60 to 90 days of custody. Which means that effectively for 40 to 60 days, nobody will get bail in this country. Because the police arrest you and ask for your custody for three days, then they tell the magistrate they will come back in a week and ask. Now what will the poor magistrate do? He will grant police custody for three days, send you home, and then, after police custody, send you to judicial custody. So, in 40 to 60 days, nobody can get bail.

Kapil Sibal: And if you ask for bail, the police will say that the investigation is yet to be completed. Since they’ve got another, you know they have 12 days to investigate and keep you in police custody. Nobody will get bail.

Mukta Gupta: There is a provision in Section 480 BNSS that provides that ‘the accused being required for police custody beyond the first 15 days will not be the sole ground for refusing the grant of bail to the accused’ but we all know if one of these claims is taken that the accused is still required for custodial investigation, then the grant of bail becomes much more difficult for you.

Madan Lokur: Also look at it from the point of view of the accused person. He’s been in police custody for three days. Assuming the judge gives him bail after that, he is on bail for seven days, but the police come and say they want you in custody. So, he will be going home for three days or one week before coming back into police custody, and you know, like a shuttlecock, he’ll be going between home and custody.

Mukta Gupta: If he is not on bail, once he is released on ban, they cannot take him into police custody.

P. Chidambaram: That is why the magistrate will not grant him bail.

Mukta Gupta: That is why the provision to 480 BNSS will always be a ground to deny bail.

Kapil Sibal: The magistrate will say, but they have not yet taken you into police custody. anytime they will say we need to confront him with this witness or as they do now, and nobody will get bail for 40 days in a 60-day charge sheet case and 60 days in a 90-day charge sheet case. So, what are you going to do? And then you say that you want to get rid of the colonial era. I mean, I just don’t understand.

P. Chidambaram: See, the Supreme Court has said in a couple of judgements that when you arrest a person, a magistrate must examine the legality of the arrest. Chief Justice Chandrachud has said that the power to arrest does not mean the necessity to arrest. The magistrate must ask about the legality of the arrest and the necessity for the arrest, but this law does not even reflect that development of the law.

Kapil Sibal: But this has been happening in the past. Even under 41A, when the sentence is seven years old, you can call him, and at that point in time, you can arrest him. You don’t have to give reasons.

P. Chidambaram: But if they were modernising criminal juris prudence, they should have added legality and necessity.

Mukta Gupta: They should have, in fact, added the Arnesh Kumar judgement as well.

But apart from that, supposing how are you going to decide on the legality of the arrest unless the accused knows what is against him at that point in time? If you really want a reasonable law that is fair, then if you say these are the reasons why we want to arrest him, then that reason should be given to the accused so that he can ask for bail. Otherwise, it’s between the trial judge, the special court, and the prosecutor. How does the accused know on what grounds he’s being arrested and whether his arrest is legal or not? If you want to modernise the law, this is where you must improve.

P. Chidambaram: None of the landmark Supreme Court judgements of the last ten years are reflected in the new law. We’ll have to go back to the court and say that notwithstanding the new law, the principles will have to be applied.

Mukta Gupta: Ninety to ninety-five percent is verbatim, they say. There is tweaking done in most of the provisions where there are changes, but they have not maintained continuity. If one provision is there, then that should be put in continuously towards the end, but halfway there are amendments, but later there are no amendments. So, there is so much dichotomy when you read the provisions because others have been directly retained as they are. As I said, the trial is like a charge sheet investigation by another state police, and the charge sheet goes back to the same place where the offence has been committed. Now, who will grant bail? What will happen to the remands already granted? When will the papers be transmitted, and during the transmission of papers to the court of competent jurisdiction, what will the stage of that period of remand be called? Because cognizance will be given by the magistrate who is competent to do the trial. One day, they cannot just transfer it to the competent court. Supposing they do it on the 90th day and matters are then transferred to the competent court on the charge sheet, what will this interim custody be called? Will it be illegal custody?

Kapil Sibal: These are all very serious issues. If I may read the new provision of the BNS on sedition, this is what it says. It doesn’t call it sedition, but this is what it is. It says, “It penalises the following: exciting or attempting to excite secession, armed rebellion, or subversive activities; encouraging feelings of separatist activities; or endangering the sovereignty, unity, and integrity of India. These offences involve the exchange of words or signs, electronic communication, or the use of financial means.” So now you know you have a protest march, you have a bandh, you have some form of violence, it would be subversive, it will affect the unity of India, there are some speeches made that are incendiary, and you will be put in jail for life. For Life. This is the definition of sedition. This is wider than 124a.

Now let me give you another definition of terrorism. This is even more serious. “Includes an act that intends to threaten the unity, integrity, security, or economic security of the country.” It becomes terrorism.

Mukta Gupta: This economic security had already been added.

Madan Lokur: Membership in an organisation makes the person a terrorist too.

Mukta Gupta: Yes, that’s under the UAPA as well.

Kapil Sibal: ‘Strike terror in the people or any section of the people’. So, what do you mean by striking terror? You can do it by any means.

Madan Lokur: You see, one of the problems that I find, not only with these laws but generally, is the question of application or the implementation of the law. The police will implement the law the way they think. Whether it’s right or wrong, it doesn’t matter. So, a tweet, for example, can amount to sedition; they have arrested people for tweets. So now, even today, under the new BNS, if somebody gives a tweet that the police think is subversive and all, they’ll put that person in. So, implementation is also, I think, a very crucial aspect.

Kapil Sibal: Laws of this nature have to be defined carefully.

Madan Lokur: You have to be very precise.

Kapil Sibal: This is the problem. There is so much vagueness in the definitions that the police officer would do what he wanted.

P. Chidambaram: Kapil, I think economic security was eventually dropped. What are you reading in which section?

Kapil Sibal: I’m in the section on terrorism.

P. Chidambaram: Terrorism? 152, which is equivalent to 124a?

Kapil Sibal: No. 124a is sedition. I’m talking about terrorism. That’s the serious part, which means a big financial scam is terrorism.

P. Chidambaram: 152 is also used. “Whoever, by use of financial means, excites a session,” etc. So, if, through financial means, you endanger the unity and integrity of India, you can be punished and will come under 152. This punishment includes imprisonment.

Kapil Sibal: With what mindsets have these people drafted these laws? I don’t understand.

P. Chidambaram: See, none of them was a practicing lawyer except Mahesh Jethmalani. All the rest are professors. I’ve seen the names.

Kapil Sibal: I must share this with you (ML). You, of course, gave a faint note to the recommendations in the standing committee. But I know for a fact that I gave the names of several prominent lawyers in the Supreme Court to come as witnesses before the committee, and they were not called.

P. Chidambaram: We gave a list of judges witnesses. No one was called. The chairman summarily rejected our list. We wanted judges, lawyers, and jurors to be called, but none were called.

Kapil Sibal: This is shocking. Now take the definition of organised crime, which is even more interesting. “Organised crime includes offences such as kidnapping, extortion, control killing, land grabbing, and financial scams,” becomes organised crime, “and cyber-crime carried out on behalf of a cyber-syndicate.”. Attempting or committing organised crime will be punishable with death or life imprisonment.

Mukta Gupta: The dichotomy in this is that a criminal breach of trust is not an offence under PMLA (Prevention of Money Laundering Act), so it’s not thought to be serious. Whereas under this, this economic offence is an organised crime. Whereas 420 IPC, which is for cheating, which was an offence under the PMLA scheduled offence, is a petty organised crime under 120.

P. Chidambaram: Cheating is a petty organised crime. That was very petty of them to say that.

Mukta Gupta: See, 112 includes cheating, theft, snatching, and unauthorised selling of tickets. Cheating is a petty organised crime offence. The punishment for this is imprisonment for a term that shall not be less than one year, but which may extend to seven years. Now, under Section 46, a subsection has been included that provides for handcuffing. The Supreme Court in Prem Shankar Shukla clearly said that the nature and gravity of the offence cannot be the criteria. The same is violative of Article 21 of the Constitution. Now the nature and gravity of the offence are the criteria, and that will be decided by the police officer.

P. Chidambaram: There are several retrograde provisions. For example, adultery has been brought back. Solitary confinement has been introduced as a punishment, and then they have now said all witnesses can be deposed by electronic means. I mean, one should be cross-examined, and you have to have eye contact. Furthermore, documents can be proved by a successor. Not only when the officer is dead, but even when he’s transferred, the successor can prove the document. If a man prepares and registers a document, he must come and give evidence, as it is from his predecessor, if you oppose the document. These are retrograde provisions, and the sooner they are challenged, I think, the better.

Kapil Sibal: Let me give you another definition of mob lynching. It says, “Murder or grievous hurt by five or more people on specified grounds is an offense.” These grounds include race, caste, sex, language, or personal belief. Punishment for such murder is life imprisonment or death. So, you put somebody, add five more people, use 149 here, and you can call it mob lynching. Now they will not do anything about the previous 153a (promoting enmity). On that, they have not done anything. That’s the law that needs to be reformed. Here, their very important dignitaries are actually misusing those provisions, and nobody takes action against them. That’s the law that should have been changed to make it more modern. But they’ve not done any of that. I want to point out that this electronic means is a good step. One has had to use electronic means nowadays since we’re going into the electronic age. But where’s the infrastructure?

Mukta Gupta: They’ve given a five-year period for it, but in the meantime, you will help with the help of the adjoining states.

Madan Lokur: But also, you know what Mr. Chidambaram says: if you want to cross-examine a witness, you should be there in front of you. I mean, you have things like demeanour and body language.

Mukta Gupta: You don’t know what he is assessing—if it’s electronic. Even guidelines were laid out in Praful Bidwai’s case by the Supreme Court, saying that he has to be present as a place, there should be somebody to monitor the evidence, and he will be at the high commission. There’ll be a competent officer, and then only deposition can be there. Now, electronically, you never know that the witness has opened his statement in front of you and that he’s reading it out.

P. Chidambaram: What about approving his evidence? Unless you have eye contact with him, you have to look him in the eye; he must look you in the eye. If he casts his eyes down and his fidgets are factors that must be noticed by the judge, this guy is obviously lying, and he is not willing to look the defence counsel in the eye or the accused in the eye.

Kapil Sibal: You at one stage raised this point about community service?

P. Chidambaram: This is another issue. I said you had to define it first. For example, the guy in Pune or somebody he was asked to write a 300-page. 300 words—is that community service?

Mukta Gupta: So, they have given in the explanation to BNSS that it is a court-directed work without any remuneration; that’s the definition given. It’s provided as a punishment under the BNS, but the explanation is given under the BNSS that it’s court-directed work without any remuneration that’s so very wide power.

P. Chidambaram: What is community service? For example, somebody can be told you do Kar Seva in a gurudwara. Someone can be told to go to a temple and sing bhajans for two hours. Is that community service?

Kapil Sibal: It all depends on what the judge wants judge.

P. Chidambaram: So, you have to define it.

Kapil Sibal: But let’s see in which cases there’s community service that’s required under the law. It says this punishment for offences such as theft of property of less than $5,000 or attempts to commit suicide will be having to go do community service and tend to restrain a public servant. So, if you tell a policeman, don’t do this; you’ll have to do community service.

P. Chidambaram: For every civil disobedience and protest.

Kapil Sibal: Those people have to do community service. Then, more importantly, appearing in a public place intoxicated and causing annoyance. For example, if young people drink too much and are intoxicated and causing annoyance, they will have to do community service. I mean, how is this going? Nobody has applied his mind.

Mukta Gupta: Then there is no corresponding provision that says whether community service will be treated as a punishment. That it will have the stigma of a punishment, like earlier in the probation if probation is granted, it was very clear that it will not have the stigma of a punishment. So, community service, whether it will carry the stigma of a conviction or a punishment, is also not there.

Madan Lokur: It is a punishment.

Mukta Gupta: It’s a punishment, so whether it will carry that stigma or not is not clear. The provisions of the Offenders Act were very clear, but this is not clear. Once you leave him on probation, it will not carry the stigma of a conviction. But this is not clear. When you leave community service, whether the stigma will be there or not is not clear.

Madan Lokur: It will carry a stigma because it’s a punishment.

P. Chidambaram: I want to raise another point. Subject to correction by the former judges. The rank of assistant session judge has been abolished. There’s no assistant session judge. Now, which means, I’m told by criminal lawyers, that all offences punishable with imprisonment exceeding the 3-year limit of a magistrate and the seven-year limit of a chief judicial magistrate must now be tried by a session judge. If that is correct, all first will go to the high court?

Mukta Gupta: No, the bar was earlier on the chief judicial magistrate giving punishment for more than seven years even if the trial could take place. The trial was as per the schedule of the CrPC, for which the schedule is retained. So even if it is triable by the chief judicial magistrate, there is a limit to the punishment that can be given. Virtually, at least in Delhi and many states, there were hardly any assistant session judges; we had additional session judges who were equivalent to session judges. Additional session judges will be there; that is, session judges would include additional session judges. They have abolished magistrates of the third class, so it will be magistrates of the first class, which will include the chief judicial magistrate, and then magistrates of the second class, so there’ll be only four categories of judicial officers, and the fourth is the executive magistrates.

P. Chidambaram: I just want to avoid the first appeal going to the high court. Anything less than seven years, the appeal must go to the session judge?

Mukta Gupta: Even now, it will go to the session judge.

P. Chidambaram: I accept what you say, but criminal lawyers in Chennai have told me that the appeal will go to the high court.

Kapil Sibal: Let me raise another issue now. Under the old law, if the sentence was ten years and you’ve served five years, you’ll automatically be released. The new law says you won’t be released if you are also charged with another offense. Which means that if you have been charged with some other petty offence, they don’t say which category of offence—for example, any petty offence—you will not be released.

P. Chidambaram: No, even in the same crime, there can be two sections, and both would be counted as two offences.

Kapil Sibal: Yes, but I don’t think that provision will apply to one transaction. This is with reference to another offence altogether, not part of the same transaction.

Mukta Gupta: It is a different offense. Not offences in the same transaction. Otherwise, a person will never be released for one transaction since there can be multiple offences.

Madan Lokur: Do the police agree with you? They have their own interpretation.

P. Chidambaram: But it also uses the expression in multiple cases. What is the difference between two or more offences and a multiple case?

Kapil Sibal: That’s one case with multiple offences in one case because you can be charged under the organised crime act; you can be charged under the regular provision; even today, you can be charged for several offences.

P. Chidambaram: Why use language that creates such ambiguity? It should have been clear.

Kapil Sibal:: That’s another matter, but as I said, this is done in a hurry; it is done to show the world that, see, this government has brought about enormous changes; we have modernised the criminal justice system, though this has nothing to do with justice. This has something to do with enhancing fear in the minds of people (ML) and punishment.

Mukta Gupta: Now there is another addition that they have made. If a complaint is filed before the magistrate before directing the registration of an FIR, a provision akin to Section 156-3 CrPC will be called. But if it is a public officer against whom the complaint is made, then that public officer will be heard, and his superior will also be heard to find out if there is any case made out. Secondly, the preliminary investigation permitted, contrary to Lalita Kumari’s judgement under Section 173-4 BNS, says that the scope of the preliminary inquiry will be whether a prima facie case is made out or not. So even at that stage, the police can go into the truth of the allegation, unlike what was said in Lita Kumari, where all the police can look into is whether the complaint discloses the commission of a cognizable offense. Contrary to that, if a complaint case is filed before the magistrate, he cannot direct registration of the FIR unless he cannot summon the accused, but he will have to first issue a notice and ask what he is saying so the accused will be heard at the pre-cognizant stage, and once it is found out, cognizance will be taken. So, what will you call that first stage? Storage of notice, and then someone is summoned as an accused. So, there are restrictions on the powers of the magistrate, but as far as the police powers are concerned or the registration of FIR, going ahead with the arrest, the law has been simplified.

Kapil Sibal: There’s another issue here under the law now. If, under Lalita Kumari, you have committed a cognizable offence, the FIR has to be registered. That’s done away with now. Under this law, the police officer has the discretion not to register, so this is where politics will come in. If you’re a member of a particular party or someone known to you, then that police officer will not register the FIR and will start doing a preliminary inquiry, and there’s no time limit for that. If it is, whether the person is inimical to you politically or otherwise, he’ll immediately register the FIR.

Mukta Gupta: There is a time limit given of two weeks. But the fact is, he will find out if a prima facie case is made out or not.

Kapil Sibal: But he will not. He will say that no case is made out. So, what do you do? And that’s the end. There’s no protest provision at that stage.

Madan Lokur: Under the new law, you can’t file a protest.

Mukta Gupta: In the case where the police say there is no prima facie case, they close it. Then, when you go to the magistrate to get the FIR registered, they will first call the police report, which will say no case is made out. If the magistrate takes the route of treating it as a complaint case and summoning, then he will first call the accused, hear him say whether any case is there, and then he will take cognizance against the accused.

P. Chidambaram: But how will the accuser defend himself or resist it?

Kapil Sibal: Because he won’t have any documents either.

Mukta Gupta: Also imagine a case of a complainant where the accused is unknown. If the accused is unknown, which is the case in many cases,

Kapil Sibal: Obviously, therefore, these particular laws are a lawyer’s paradise.

P. Chidambaram: It’s actually a carte-blanche to the police.

Kapil Sibal: Off course. That’s why it’s a lawyer’s paradise because the more the police do whatever it normally does, the more opportunity there is for the lawyer to say, look what is happening in my country.

P. Chidambaram: Meanwhile, justice will suffer, and people will suffer because of the police excesses. As it is, the complaint is that police have too many powers and too few restrictions.

Madan Lokur: And no accountability.

Kapil Sibal: This is the modernisation of the law. They say they do. The fact that it is going back to the Middle Ages. I mean, this is what Rajas used to do. Put somebody in prison without accountability.

P. Chidambaram: Well, the only hope is that quickly the courts, or certainly the Supreme Court, must list a dozen provisions that are seriously affecting liberty and are prima facie unconstitutional and decide that. You can’t have case-by-case challenges coming from one provision challenged here and one provision challenged there.

Kapil Sibal: The problem is that if somebody says, how does Article 32 lie?

P. Chidambaram: No, you can file it under 226. The fundamental rights 32 and 21 will lie in the Supreme Court, but the lawyer’s body has to get together and list, say, 10–15 provisions that are serious invasions of liberty and bring them to the Supreme Court.

Kapil Sibal: That I understand, but if it goes to particular benches, it all depends on how the bench is going to see these things. Saying let the high courts decide first, then we’ll deal with it. It’s very problematic. This whole situation is very problematic.

Madan Lokur: You know the Civil Advocates Association case with regard to the amendments in the CPC. I mean, it was a composite petition saying that these are the eight or nine problem areas. I think a similar kind of petition should be entertained by the Supreme Court.

Kapil Sibal: This jeopardises freedoms in our country, and we can’t be at the mercy of a state that uses the police to destroy what little is left of our freedoms, but thank you very much for being here for this wonderful talk.

‘Linguistic Imperialism’: PIL in Kerala HC Over Hindi, Sanskrit Titles to Central Legislation

The petitioner, a lawyer, urged the court to issue directions to the Union government to provide English titles to Bharatiya Nagarik Suraksha Sanhita 2023, Bharatiya Nyaya Sanhita 2023, and Bharatiya Sakshya Adhiniyam 2023.

New Delhi: A public interest litigation (PIL) has been filed in the Kerala high court arguing that parliament has no authority to name legislation in any other language except English.

The petitioner, a lawyer, urged the court to issue directions to the Union government to provide English titles to the Bharatiya Nagarik Suraksha Sanhita 2023, Bharatiya Nyaya Sanhita 2023, and Bharatiya Sakshya Adhiniyam 2023, which recently replaced the Code of Criminal Procedure, the Indian Penal Code, and the Indian Evidence Act, respectively.

Petitioner P.V. Jeevesh said the use of Hindi and Sanskrit titles to important legislation is “ultra vires”, according to the scheme of the constitution. He said such nomenclature proves disadvantageous to the legal fraternity in south India, where people are not conversant with Hindi and Sanskrit.

“The nomenclature in Hindi and Sanskrit for these legislations would create confusion, ambiguity, and difficulty for the legal community of non-Hindi and non-Sanskrit speakers, especially those belonging to the southern part of the nation,” PTI quoted him as saying.

He also went on to add, “Moreover, the names provided in the aforesaid languages are hard to pronounce for non-Hindi and non-Sanskrit speakers. Therefore, it violates the fundamental right under Article 19 (freedom of speech and expression) of the constitution.”

He also pointed out that such naming goes against Article 348 of the constitution, which deals with language to be used in the Supreme Court, high courts, and for Acts, Bills, etc.

He underlined that Article 348(1)(b) mandates that all Bills introduced in the legislative bodies and the Acts passed by them be in English.

“Therefore, the action of the respondents 1 to 4 (Centre and Union Law Ministry) is a classic example of linguistic imperialism. The actions of the respondents 1 to 4 are autocratic, capricious, unjustified and arbitrary, and antithetical to the democratic values and the principles of federalism,” he noted in his plea.

Second Avatar of the Criminal Law Bills: The Key Changes

In their second drafts too, the character of the Bills remains fundamentally anti-democratic. A few modifications proposed, however, are noteworthy.

The latest twist in the criminal law reform tale is that the three Bills introduced by the Union government in the Lok Sabha in August 2023 to replace respectively the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act were unexpectedly withdrawn on December 9, 2023 and replaced in short order by revised second drafts which were tabled by the Union home minister on December 12, 2023 in the Lok Sabha.

The August 2023 first drafts of the three Bills had drawn wide public outrage as an assault on our democracy. The Wire carried a detailed analysis of the Bills. The August 2023 first drafts were reviewed by the Parliamentary Standing Committee which published a report on them on November 10, 2023, hailing and approving them. Reflecting the extremely poor quality and the alarming nature of the Bills, even the BJP-led Parliamentary Standing Committee was constrained to recommend a slew of changes. The Committee went to the extent of cautiously expressing mild concern about the vagueness of crucial definitions in the drafts (see here for an analysis of the recommendations of the committee).

The fundamental objection to the first draft of the Bills is not removed by the second draft. The character of the Bills remains fundamentally anti-democratic. The bulk of changes made by the second drafts of the three Bills are almost entirely editorial and inconsequential in nature, often simply correcting quite embarrassing errors. A few modifications proposed in the second draft are, however, noteworthy. Five key changes made to the first draft of the Bills are briefly discussed here — discussion of the unchanged portions of the first draft of the Bills is not repeated.

Terrorism [Clause 113, second draft of Bharatiya Nyaya Samhita (BNS)]

The most important change made by the second draft of BNS, which will replace the Indian Penal Code, is that the Union government has entirely pulled back from the first draft’s frightening expansion of the crime of terrorism beyond the existing definition in the Unlawful Activities (Prevention) Act, 1967 (UAPA). The UAPA, itself famously draconian, defines as terrorist any act “with intent to threaten or likely to threaten the unity, integrity, security economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country”.

In contrast, the definition in the first BNS draft included as terrorism extremely vague acts such as “intimidating the general public or a segment thereof”, “disturbing public order”, “creating an atmosphere or spreading a message of fear”; “destabilising or destroying the political, economic, or social structures of the country”, or “creating a public emergency or undermining public safety”. Under the first BNS draft, these acts would be terrorist acts even if they are in the form of mere non-violent speech that does not involve the commission of any crime. Each of these vague formulations has the potential to be abused to lock up virtually anyone by converting legitimate public discourse into ‘terrorism’.

The second draft of BNS withdraws the definition of a terrorist act in the first draft and entirely adopts the UAPA definition (except on one relatively minor point of detail: UAPA includes in terrorism the “production or smuggling or circulation only of high quality counterfeit Indian paper currency, coin or of any other material” whereas the second BNS draft widens this definition to cover the same activities with respect to any counterfeit Indian paper currency, coin or of any other material). Contrary to erroneous media reports, threatening ‘economic security’ and ‘sovereignty’ of the country have not been introduced into the definition of terrorism for the first time in the second BNS draft — they are part of the existing UAPA definition of terrorism and have now been included in BNS as part of its adoption of the UAPA definition. The second draft of BNS also changes the punishment for ‘terrorism which results in death’ from life imprisonment without parole to life imprisonment as provided in UAPA (i.e., without ruling out parole).

While the modifications to the BNS definition of terrorism are welcome, it is disappointing that the government refused to drop the terrorism offence altogether from BNS as it is already covered under UAPA. With this new BNS provision, the government will now have a double-barrelled weapon to prosecute and imprison terrorism under two statutes – a special law (UAPA) with some wafer-thin ‘procedural safeguards’ and the other a general law (BNS) without even that fig leaf. We may fully expect that the government will be firing from both barrels at political and ideological dissenters. BNS provides unguided power to the police to choose the statute under which investigation and prosecution of alleged terrorism will take place (UAPA vs BNS). Given that one statute (UAPA) has some safeguards and a special court and the other (BNS) does not, this in itself creates an opportunity for potential rent-seeking and corruption on the exercise of this extraordinary police discretion. No justification has been provided for the need to maintain the offence of terrorism in two separate statutes.

Illustration: The Wire.

Petty organised crime (Clause 112, second draft of BNS)

Another potent weapon to be misused against non-violent dissent lay in the vague definition of “petty organised crime” in the first BNS draft under which any crime that causes general feelings of insecurity among citizens relating to thirteen enumerated acts and “other common forms of organised crime committed by organised criminal groups or gangs” was criminalised. The government has pulled back on this open-ended definition and replaced it in the second draft with a more circumscribed definition:

“Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.” [Emphasis supplied]

Punishments [Clause 4, Second draft of Bharatiya Nagarik Suraksha Adhiniyam (BNSS)]

In the second BNS draft, the government dropped the earlier proposal that life imprisonment in all cases shall be “imprisonment for remainder of a person’s natural life”. This does not mean, however, that the government has ‘got religion’ on the need to move from imprisonment to a more humane and rational approach to dealing with crime – on the contrary, the drafts are still anchored in an ancient and feudal philosophy of harsh punishment.

The second BNS draft clarifies punishment for ‘culpable homicide not amounting to murder’ which had not been clearly drafted in the first draft. Under the revised version, causing death by any rash or negligent act not amounting to culpable homicide will be punishable by five years’ imprisonment, reduced from seven years.

The offence ‘causing death by rash and negligent driving of a vehicle, not amounting to culpable homicide’, will have an aggravated punishment of ten years if the driver fails to report it to a police officer or a Magistrate soon after the incident.

The second draft of the BNSS offers this definition of the new community service punishment which was missing in the first draft: “Work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration”. This definition is not enough to ensure that punishment through forced community service is not arbitrary, is free of caste and gender bias and class prejudice and is free of any taint of corruption. The close involvement of social workers and probation officers is essential to ensure that the punishment of community service is administered with restorative rather than punitive intent.

Mental unsoundness

The first drafts of the Bills wrongly substituted the Indian Penal Code, Criminal Procedure Code and Evidence Act concept of “mental unsoundness” with the term “mental illness” without noticing the critical distinction between these two concepts. This error has been rectified in the second draft of all three Bills.

Use of electronic technology

The draft Bills clearly indicate a lack of clarity and understanding about the use of electronic means in criminal justice. The second BNSS draft, for example, deletes various proceedings that were authorised to be conducted electronically in the first draft without explaining the need for the change.

Some key recommendations not accepted

The Union government has surprisingly rejected the socially conservative recommendation of the Parliamentary Standing Committee that adultery be maintained as a gender-neutral crime. This is, of course, welcome. However, given the strong support this recommendation may have amongst the core constituencies of the government, it may well be re-introduced in future through a further amendment.

The Standing Committee’s recommendations that (i) non-consensual sexual acts covered by IPC Section 377 should continue to be criminalised; (ii) grounds must be provided by the Executive for commutation of sentences; as well as (iii) a special provision be included to protect healthcare workers; should have been, but were not, accepted in the second drafts.

The fundamental character of the Bills

The Bills weaponise the police and the criminal justice system to give the political leadership at all levels – centre, state and local – even greater opportunity to abuse the criminal justice system for political gain through selective, targeted and politically biased prosecution against ideological and political rivals. For this, the Bills create and maintain high-sounding but vaguely worded and easily abused offences such as “terrorism”; “organised crime”; endangering “sovereignty, unity and integrity of India”; and what we may call “sedition plus”.

The Bills scale up police powers and discretion in a number of areas to be used for prosecuting these vague crimes. Violating well-established judicial standards, the Bills dilute the legal obligation of the police to file FIRs and register cases by providing police the option to conduct a preliminary inquiry before registering an FIR in certain cases. They empower police officers to choose the law (UAPA or BNS) under which a person should be prosecuted for alleged terrorist acts. They criminalise refusal to obey orders of the police (which is in addition to existing crimes on disobeying orders of public officials in general). They increase the scope of police custody some six-fold from a maximum of 15 days to up to 90 days.

To expand the surveillance state, the Bills mandate the provision of biometrics by those who are not accused but are arrested in a case (enhancing the incentive for arresting a person who is sought to be surveilled).

Violating long-standing judicial standards, the Bills escalate handcuffing not only during arrest but also during production in court. Unsurprisingly, at the recommendation of the Parliamentary Standing Committee, ‘economic offenders’ have been removed from the initial list of suspects and accused suggested for enhanced handcuffing.

On the other hand, there is no real effort in the Bills to enhance police accountability to the people. At a time when the judiciary is all too often unable to protect citizens from false, malicious and selective prosecution and prolonged incarceration, often even without proper charges, these Bills are a recipe for enhancing repression in our country.

Rather than strengthening criminal justice administration, the Bills primarily serve political aims. The obdurate and xenophobic refusal to add to the Bills a name in English legible to non-Hindi-speaking Indians, while retaining the Sanskrit names of the Bills for use with the Hindi and vernacular versions of the laws, serves useful political campaign purposes. The Bills create a shield for the Sangh parivar by de-criminalising the carrying of weapons – including lathis – in mass drills and processions, as well as by avoiding explicit mention of religious hatred as a ground for the crime of lynching [clause 103(2), BNS] or for grievous hurt inflicted by a group [clause 117(4), BNS].

Like many other historic pieces of legislation, these three pivotal laws that will deeply affect the lives of all Indians will also be rushed through parliament with the explicit aim of avoiding any meaningful debate or genuine discussion on them. This is hardly surprising. Laws that battle democracy cannot be enacted in a truly democratic manner.

With Parliamentary Panel’s Rubber Stamp, Path Clear for New Criminal Code and ‘Police Raj’

The few substantive recommendations made by the Standing Committee on Home Affairs do not hamper the core objective of the Bills and the impact they will have on democracy.

On August 11, 2023 the Union government introduced in the Lok Sabha a proposed new criminal code for India consisting of three Bills that would respectively replace the Indian Penal Code, 1860 with the proposed Bharatiya Nyaya Sanhita (“BNS-IPC”), the Criminal Procedure Code, 1973 with the proposed Bharatiya Nagarik Suraksha Sanhita (“BNSS-CrPC”) and the Indian Evidence Act, 1872 with the proposed Bharatiya Sakshya Adhiniyam (“BSA-IEA”).

Quantitatively, the changes made by the three Bills to the existing criminal code are limited – they leave untouched some 70-75% of the current law. I argued, however, that although quantitatively limited, some of the changes sought to be made by the Bills are qualitatively game-changing. They would equip the government with adequate power to hollow out our democracy and transform India into a fascist state – should the government choose to deploy the new laws to their fullest extent. The proposed new laws would enable the government to dramatically scale up arrest, detention, prosecution and imprisonment of law abiding democratic opponents, dissidents and activists.

I identified in this regard a dozen chilling features of the new Criminal Code as requiring special attention: (1) the criminalisation of legitimate, lawful, non-violent democratic speech or action as ‘terrorism’; (2) the broadening of the offence of sedition in a new and more vicious avatar (as what I would call “sedition-plus”); (3) the expansion of the potential for “selective prosecution” — targeted, politically-biased prosecution of ideological and political opponents; (4) the criminalisation of a common mode of political protest against government through fasting; (5) encouraging the use of force against any assembly of persons; (6) exponentially enhancing ‘police raj’ by criminalising “resisting, refusing, ignoring or disregarding to conform to any direction given by [a police officer] (sic)” on pain of immediate detention by the police officer; (7) enhancing handcuffing; (8) maximising police custody during investigation; (9) making the recording of a FIR discretionary for the police; (10) dialling up the pain of imprisonment; (11) compelling all persons (even those not accused of any crime) to provide their biometrics to the government; and (12) shielding of some of the Sangh parivar’s activities.

Also Read | Know The Three New Criminal Bills: What’s New and What’s Old?

Committee’s report

The three Bills were promptly referred by the Lok Sabha to the department-related Parliamentary Standing Committee on Home Affairs for review. On November 10, 2023, the Committee, which is controlled by the ruling coalition, submitted to parliament its reports on the three Bills. As expected, the reports hail, endorse and rubber-stamp the Bills. The Committee addresses only a small proportion of the three Bills: less than 10% of the 356 clauses of BNS-IPC; around 5% of the 533 clauses of BNSS-CrPC; and around 6% of the 170 clauses of BSA-IEA. The committee’s recommendations mostly deal with inconsequential drafting and editorial errors. The central issue — the impact of the Bills on democracy — is not addressed.

The few substantive recommendations made by the Committee do not hamper the core objective of the Bills, which is to establish draconian police raj in the country. They include: (i) make adultery gender-neutral and maintain adultery as a crime given the sanctity of marriage in the Indian tradition; (ii) do not delete Section current 153AA of IPC which bans processions in which arms are carried; (iii) add acts against sovereignty of India to the list of acts of terrorism; (iv) clarify that the offence of grievous hurt by a mob would cover acts on grounds of religion and community of the victims: (v) criminalise attacks against healthcare workers; (vi) reduce punishment for use of force against public servants; (vii) exclude economic offenders from expanded handcuffing under the new laws; (viii) limit the time period within which a person may be prosecuted for the new crime of refusing to obey directions of the police; (ix) clarify the maximum limit for police custody during investigation; (x) require that reasons be provided for the executive branch commuting sentences; (xi) put safeguards against risk of misuse of digital evidence; (xii) clarify some key definitions such as “life imprisonment”; “community service”; “organised crime”; “petty organised crime”; and “intimidation” (part of the new definition of a terrorist act); and (xiii) do not substitute the reference to “mental unsoundness” as a defence by “mental illness” as it will widen the scope of defence against criminal prosecution.

The Committee report acknowledges that although the current crime of sedition will be deleted in the new code, “provisions of sedition law that are suggested for removal are somehow retained in clause 150 (of BNS-IPC) in mild form addressing actions that jeopardise the sovereignty, unity and integrity of India.” That consultations held by the Committee during its review were largely with “friendly” sources is indicated by the statement of the Committee that during its hearings “all domain experts welcomed the initiative of the Government to introduce these legislations in Parliament” (emphasis supplied, page 11 of the Report on BNS-IPC).

Opposition’s dissent inadequate

The dissenting notes of the opposition members of the Committee are annexed to the Reports. The opposition members of the committee have utterly failed to put together a cogent and effective argument against the draconian Bills. Many of them have simply signed onto pre-prepared photocopies of comments without any evidence of independent application of minds. Their comments miss the forest for the trees.

The main points made by the opposition in their notes of dissent include: (1) the claims of the government on the aims, objects, rationale and benefits of the Bill are false; (2) public consultation on the Bills is grossly inadequate and he Bills are being processed with undue hurry; (3) the Bills should have English names; (4) the Bills enhance the police powers of the Union without adequate checks and balances; (5) marital rape has not been criminalised; (6) handcuffing is being expanded; (7) the Bills provide for excess police custody during investigation; (8) safeguards are required for use of electronic evidence; and for the proposed provisions on trials in absentia; (9) issues such as terrorism and organised crime should be kept within the framework of special laws with special procedural safeguards; the proposed provisions on terrorism overlap with UAPA provisions on terrorism and are over-broad; consent of states which have existing state legislation on organised crime must be consulted with respect to the provisions of the Bills on organised crime; (10) vesting of power of commutation of sentences in the executive violates separation of powers; (11) proposed several proposed punishments are either too low or too high; and (12) some provisions of the Bills are unconstitutional.

The dissent fails to adequately and squarely raise the larger issue of the illiberal and anti-democratic character of the Bills. Indeed, this may be because some of them, such as P. Chidambaram, are themselves architects of notorious draconian laws in the past and can have little ideological objection to a police raj. It does not seem that opposition political parties have any serious intention to oppose the introduction of a draconian new criminal code – which some of them may be looking forward to using against their own opponents when they come to power.

P. Chidambaram. Photo: Facebook/PChidambaram.INC

The way forward

As the Bills have now been endorsed by the Standing Committee with relatively minor suggestions, it appears quite certain now that they will be adopted by parliament and enacted as laws in short order without any change in their fundamental anti-democratic character. When that happens, although we may not immediately recognise it, we will cease in effect to be a functioning democracy in any meaningful way. What is the way forward?

First, we must raise public awareness of the extremely dangerous, anti-national role of criminal law as a weapon against democracy through criminalising of dissent and of democratic action in the name of vague and ill-defined crimes such as terrorism, sedition, attacks against the unity, sovereignty, integrity of India as well as by vesting discretionary power in the police which is not tightly controlled by civilain authority and ultimately by an independent judiciary. These laws have for years been misused for targeted, biased persecution of democratic dissent and activism for decades through selective prosecution. All this is likely now to increase substantially under the expanded power being given to the State to suppress democracy using criminal law. We must demand reform of all such criminal laws.

Second, we must recognise honestly where we stand today. It is undeniable that our current criminal justice system is indeed colonial and authoritarian. It is designed to protect power, not to protect democracy and the rights of the powerless. The Congress, which ruled India for three unbroken decades from from 1947 to 1977, made several amendments and reforms. But it not only failed to scrap the colonial criminal justice system lock, stock and barrel and build a new democratic criminal justice system consistent with the preambular values of the Constitution, it actually made criminal justice even more draconian than it was under the British. The result is that we today have a dystopic criminal justice system which has become an engine of oppression of common people and suppression of democracy. There is therefore undeniably a genuine need to discard the current criminal justice system and replace it with a new one. Fascist forces have taken advantage of this demand to put in place even more draconian and repressive powers while pretending that they are meeting the demand to overthrow the hated colonial system and replace it with a just and democratic system.

Third, there is no long term option except a long and substantive democratic struggle for our liberty against the establishment of a police state in India. We must use the upcoming parliamentary debates on the new criminal code, as well as their enactment and implementation, as the basis for a democratic mass movement demanding a new post-colonial, post-feudal, democratic, humane and just system of criminal law in India, consistent with global human rights norms and best practice.

Indian criminal law is historically heavily tilted towards criminalising acts against the state and against property rights (roughly 80% of our criminal laws) rather than criminalising acts against individuals (only roughly 15% of our criminal laws). In contrast, some 40% of laws in Norway criminalise crimes against individuals (as against 60% of Norwegian criminal law criminalising acts against the state or property). This needs correction. Like in several other countries, our criminal code must include provisions against genocide, crimes against humanity, crimes during armed conflict, torture, crimes against civil rights, violation of constitutional values, hate speech and caste or religious discrimination. We have no time to lose.

G. Mohan Gopal is an advocate, Supreme Court of India and a renowned legal academician.

The Three Criminal Law Bills: Using Criminal Law to Establish Permanent Extra-Constitutional Emergency Powers

“Don’t give them space to breathe!” Twelve changes to criminal law in the three Bills introduced in parliament in August, 2023 will create a quantum leap in the power of the government, if and when it so wishes, to silence dissent and opposition and shut down public discourse, choking all channels that communicate conflicting news or views to the people.

In Strong Societies and Weak States (1988, Princeton University Press) Joel S. Migdal quotes Eugene Weber’s Peasants into Frenchmen (1976, Stanford University Press), “In one section of France, the evening prayers of peasants long included the line, ‘Deliver us from all evil and from justice.’” If the three bills presented to Parliament by the Union Government in August this year to replace the Indian Penal Code, 1860, the Indian Evidence Act, 1872 and the Criminal Procedure Code,1973 are enacted into law, we Indians would do well to also incorporate in our daily prayers a plea to “deliver us from criminal justice”.

On August 11, 2023 the Union Government introduced three new Bills in the Lok Sabha to replace the Indian Penal Code, 1860 (the Bharatiya Nyaya Sanhita Bill, referred to here for ease of reference as “BNS-IPC”) the Indian Evidence Act, 1872 (the Bharatiya Sakshya Adhiniyam Bill, referred to as “BSA-IEA”) and the Criminal Procedure Code, 1973 (the Bharatiya Nagarik Suraksha Sanhita Bill referred to as “BNSS-CrPC”).

Quantitatively, the bills only change some 20%-25% of the law in the three current statutes

Qualitatively, the changes consist mostly of an extensive (and entirely needless) re-ordering and re-numbering of the provisions to pretend that the laws have been slimmed down; several anodyne amendments to facilitate electronic proceedings; several largely non-consequential changes of nomenclature; and yet another unrealistic legislative attempt to set timelines on court proceedings.

The changes also include long demanded de-criminalisation of the attempt to commit suicide (except when directed against public officials, see below), homosexuality (although the wholesale deletion of S.377, IPC will create a number of serious issues) and adultery (although there is some indication that a gender-neutral prohibition on adultery may be demanded by the BJP-run select committee). There are welcome changes on gender equalisation and clearer criminalisation of gang rape of women below the age of 18, use of a child to commit offences, lynching and snatching. The amendments also mandate videography during some of stages of investigation. There are controversial changes criminalising sexual intercourse by employing deceitful means and replacing the concept of ‘incapability to form intent’ with ‘mental illness.’

Twelve chilling changes

What is crucial and requires very close public attention, however, are a dozen chilling changes to the law that have the potential to liquidate liberty, decimate democracy and fundamentally change the face of our polity from democratic to authoritarian should the government decide to deploy any or all of these changes to their fullest extent.

Six of the 12 sets of changes create powerful weapons to silence dissent, decimate opposition and shut down public discourse. Of these, three sets of changes add new weapons for targeted, biased, political persecution (TBPP) through prosecution and incarceration of individuals and organisations deemed by ruling ideologue to be its enemies; two attack direct democratic action; and one is a partisan exercise of legislative power to facilitate the Sangh Parivar’s work against democracy.

Five other sets of changes exponentially enhance police raj.

The 12th set of changes intensifies the pain and suffering of those who are targeted for democratic thought and action through enhanced incarceration, including in police custody. It seems also like a frisson of schadenfreude for the rulers (pleasure derived from another person’s suffering).

Taken together, these 12 changes, in conjunction with cognate changes not detailed here, will result in a quantum leap in the power of the government to use criminal law, if and when it so wishes, as an effective weapon to silence dissent and opposition and shut down public discourse, choking all channels that communicate conflicting news or views to the people.

The Bills, if enacted, will establish permanent extra-constitutional emergency powers in India through statutory means. Future governments are unlikely to surrender this power or revoke this extra-constitutional emergency. What makes this possible is that these new criminal laws do not reflect constitutional morality. They have no in-built constitutional constraints. They are anti-Constitutional in letter and spirit. The overall aim of the two Sanhitas and the Adhiniyam may perhaps best be summed up by the sentiment expressed recently by the Right Hon’ble Lieutenant Governor of Jammu, Kashmir and Ladakh: “Don’t give them space to breathe!”

We are without doubt at a dawn that comes before a night of deep darkness.

Illustration: Pariplab Chakraborty.

The first three changes discussed create new weapons for targeted, biased, political persecution (TBPP) through prosecution and incarceration against those who are deemed enemies of the ruling ideologues

I. Arbitrary power to label non-violent democratic action as ‘terrorism’

The first of the chilling statutory changes gives the government arbitrary power to label virtually any non-violent action for democracy or social, political or economic justice, or any non-violent dissent, protest or opposition, or public discourse that conflicts with the government narrative, as “terrorism” and unleash the full force of anti-terrorism laws to smash and silence it.

The current draconian definition of terrorism in the Unlawful Activities (Prevention) Act, 1967 (UAPA) includes enumerated violent acts that aim to “threaten or [are] likely to threaten the unity, integrity, security, economic security, or sovereignty of India or [are done] with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country”.

Clause 111(1)(iv) of BNS-IPC widens the UAPA definition of terrorism in two ways. (1) Under UAPA an act must be a violent act to be considered a terrorist act. BNS-IPC adds peaceful, non-violent acts to the definition of terrorism if they meet other relevant criteria. As a result, under BNS-IPC even a non-violent act, or a mere expression through speech or writing will fall within the definition of terrorism. (2) Under UAPA an act should “strike terror in the people or any section thereof” in order to be a terrorist act. BNS widens the net of terrorism and makes all acts that “intimidate the general public or a segment thereof” to be considered terrorist acts. BNS-IPC also adds a very broad criterion of “disturbance of public order” to the definition of terrorist act. BNS-IPC also adds a new ground to the definition of terrorism to further widen its net: an act is terrorist if it “destabilises or destroys the political, economic, or social structures of the country”. This last ground echoes the European Council Framework Decision of 13 June 2002 under which terrorism is defined as offences under national law committed with the aim of “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation”. The BNS-IPC definition drops the European requirement that only “offences” established under a statute can be included in the definition of terrorism. BNS-IPC also drops the European Council requirement that in order for an act to be considered a terrorist act, the “destablisation” or “destruction” must be of a “serious” nature and the political, constitutional, economic or social structures attacked must be “fundamental” structures. This way, BNS-IPC greatly broadens the ambit of its definition of terrorism well beyond accepted legal limits.

Also read: How Consultative Was the Framing of the Three Criminal Law Bills, Really?

The Constitution of India (Article 38) unambiguously calls on the State to secure a social order for the promotion of welfare of the people in which justice — social, economic and political — shall inform all institutions of national life. The Constitution commands the State “in particular, [to] strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.” These changes cannot be done without non-violently ‘destroying’ and ‘destabilising’, to a greater or lesser extent, the feudal, theocratic social, political and economic order that has dominated the country for centuries. These changes will inevitably ’divide’ people into those who want the revolutionary changes and the elites who oppose them and are ‘intimidated’ by them. The BNS-IPC provision puts all peaceful movements for revolutionary social, political and economic changes at risk of being prosecuted as “terrorist” movements (these may include for example Dr B.R. Ambedkar’s call for “annihilating caste” and movements against patriarchy or capitalism). In this context, it is significant that acts against the “social structures of the country” which are not in the UAPA definition of terrorism have been included in the BNS-IPC terrorism definition. This appears to signal an intention to use anti-terror tools to fight social reform that threatens the current caste-based social order. The significance of the convenient omission of attacks on the constitutional structure from the BNS-IPC definition of terrorism is discussed later in this article.

The new and open-ended provisions on terrorism introduced in BNS-IPC will co-exist with already existing sweeping criminalisation of terrorism under The Unlawful Activities (Prevention) Act, 1967 which includes three chapters on terrorism. These two sets of laws against terrorism are not identical. Those prosecuted for terrorism under BNS-IPC will not be able to avail of (the slim) protection measures available to them under the UAPA provisions and the special courts established under them. Those targeted could be prosecuted and convicted under both sets of laws and face interminable imprisonment. We may presume that this heavy deterrent against questioning the established social structure on pain of punishment for terrorism is intended to preserve the inequitable social structure of the country and to stave off much needed, revolutionary, peaceful social change envisaged in the Constitution.

II. Sedition is reborn as sedition plus — in a more vicious avatar

The second attack against liberty, democracy, dissent and opposition is the new channel that BNS-IPC opens up for targeted, biased, political persecution (TBPP) through prosecution and incarceration of opponents and dissidents through the creation of a new, ill-defined, over-broad mega-crime (“Acts endangering sovereignty unity and integrity of India”, Clause 150 of BNS-IPC). Clause 150 criminalises five activities: (1) “subversive activities”; “(2) secession”; (3) “separatist activities”; (4) “endangering sovereignty, unity and integrity of India.” and “armed rebellion”. None of them is statutorily defined, leaving unbounded discretion to the police and political executive. Clause 150 criminalises three types of ridiculously vague and undefinable methods by which these five activities may be undertaken: (1) “exciting” people in support of these prohibited activities, (2) “creation of excitement amongst people” in a positive way towards these activities; and (3) encouragement of feelings amongst people” in favour of these activities. Clause 150 creates four prohibited instruments through which such crimes may be committed. Two are new:(1) electronic communication; and (2) financial means. Three are copied from IPC Section 124A (sedition): (1) “words, either spoken or written”, (2) “signs” or “(3) visible representation”. These prohibited activities, methods and instruments are defined using such broad and vague language that any government will be able to target virtually anyone who the government wants neutralized or silenced, and to crush honest, democratic and non-violent expressions of dissent and opposition in the same way as has been done from colonial to contemporary times under Section 124A (sedition).

Section 124A of the Indian Penal Code (IPC) (sedition) is not included in BNS-IPC. The Union claims this deletion of Section 124A is a liberal revision of criminal law. The IPC crime of sedition is basically ‘the creation of, or any attempt to create’, one or more of five sets of negative attitudes towards the government: (i) “hatred” (ii) “contempt” (iii) “disaffection”; (iv) “disloyalty”, and (v) “enmity”. While deleting Section 124A, Clause 150 of BNS-IPC criminalises a much broader range of activities arising from such attitudes. Clause 150 is a reincarnation of Section 124A in an even more vicious avatar — sedition is dead, long live sedition plus!

Illustration: Pariplab Chakraborty.

III. Enabling targeting of dissidents and political opponents

The third attack on democracy is also, like the first two, a new legal weapon for targeted, biased, political persecution through prosecution (TBPP) against those who do not fall in line with the government and its social, economic and political masters (in addition to the two just discussed). This weapon consists of implicating its victims in organised crime (Clause 109) and petty organised crime (Clause 110). Existing draconian laws on organised crime such as Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and Karnataka Control of Organised Crimes Act, 2000 (KCOCA) provide definitions of organised crime. Under MCOCA and KCOCA “organised crime” is defined as “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”. The United Nations Convention against Transnational Organized Crime, 2000 also provides an established definition of organized crime: “Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group.” In contrast, BNS-IPC introduces a new definition of organised crime that is riddled with lack of clarity: “Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prostitution or ransom by the effort of groups of individuals acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit, shall constitute organised crime.” If there was need to create a new national offence on organised crime, why is a new and thoroughly confusing definition of organised crime used rather than the relatively clearer definitions that are available in state legislation and internationally — if not just to be able to misuse and abuse the provision to pursue and neutralise political and ideological opponents? If the intention is to seriously address the very grave problem of organised crime a professional and bona fide approach to the drafting of the offence is required.

IV. Attacking fasting as political protest

The fourth assault on our democratic rights is the criminalisation of the use of fasting as political protest — an instrument often used by the most powerless (for example, prisoners in jail) to fight for their human rights. While de-criminalising attempted suicide as a general matter, BNS-IPC Clause 224 (“Attempt to commit suicide to compel or restraint exercise of lawful power”) says, “Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both or with community service.” Its main purpose appears to only be to prohibit the use of fasting as a political weapon.

Also read: The New Criminal Bills Allow the Govt to Decide Who Gets Booked and Who Doesn’t for the Same Act

V. Encouraging force against assembly of persons

The fifth attack on our democratic rights is a strong statutory signalling by BNSS-CrPC to the police that force may be used against assemblies of people. Section 130 of the Cr.P.C. currently provides that if any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. Clause149 of BNSS-CrPC tweaks this provision and says that in such circumstances the District Magistrate or any other Executive Magistrate authorised by him, who is present (i.e., regardless of whether he is of the highest rank) may cause it to be dispersed by the armed forces.” The tweaking serves as statutory signalling encouraging use of force to disperse assemblies of people.

VI. Shielding the Sangh parivar

The sixth attack is a partisan change of criminal statute in favour of the Sangh parivar, shielding it it from legal liability and allowing it greater space to operate against democracy.

As noted earlier, the BNS-IPC definition of terrorism mirrors in part the European Council Framework Decision of June 13, 2002 under which terrorism is defined as offences under national law committed with the aim of “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation”.

Although attacks on the Constitutional structure are established offences under IPC and BNS-IPC including, for example, as attacks on the unity and integrity of India, it is very significant that the BNS-IPC definition of terrorism consciously omits attacks on the “constitutional structure”. As a result, an act to destroy or destabilize the “constitutional structure” of India would not be a terrorist act under BNS-IPC, terrorism whereas an act to destroy or destabilise the social structure of India (e.g, Varna system) would be a terrorist act even if it is not serious or fundamental! This customisation of the European definition of terrorism to omit attacks on the Constitutional structure of India from the definition of terrorism will allow the Sangh parivar to pursue its stated agenda of building a Hindu Rashtra polity in India which necessarily requires the destruction or destablisation of the current Constitutional structure, whether by stealth or by direct means, without it becoming terrorism. At the same time, as noted earlier, BNS-IPC also makes it possible to stave off all acts seeking to destroy or destabilise the traditional, feudal, casteist social structure by including such acts within the definition of terrorist acts.

A 2005 amendment had inserted section 153AA into the IPC which criminalised carrying arms in any procession or organising or holding or taking part in any mass drill or mass training with arms in any public place in contravention of any public notice or order issued or made under section 144A of the Code of Criminal Procedure, 1973 (2 of 1974), with arms being defined as “articles of any description designed or adapted as weapons for offence or defence and includes firearms, sharp edged weapons, lathis, dandas and sticks.” It is another matter that the Sangh parivar is so powerful regardless of which party rules India that Section 144A, CrPC (“power to prohibit carrying arms in procession or mass drill or mass training with arms”) is yet to be brought into force through a simple notification, 18 years after its enactment. The two Sanhitas have quietly deleted both these provisions so that the Sangh parivar can happily continue armed training of its cadres without legal impediment.

BNS-IPC Clause 101 introduces a new specific punishment for lynching which is defined as “murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground”. “Religion” is conveniently and noticeably left out as an enumerated ground.

VII. Exponentially enhancing police raj

The seventh change proposed by the Bills puts a crucial power in the hands of the police, which is a potential recipe for police excess. A draconian new BNSS-CrPC clause (Clause 172) provides that “All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty…” The clause also provides that “A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction given by him… and may either take such person before a Judicial Magistrate or, in petty cases, release him when the occasion is past.”. Although the coercive action by a police officer detaining a person would in the eyes of Constitutional law be an arrest, the suggestion seems to be that the detention may be done without complying with the Constitutional and statutory requirements for arrest.

VIII. Bringing back handcuffs

The eighth attack against Constitutional rights undermines decades old judicially created restrictions against use of handcuffs. In the 1978 judgment in Sunil Batra v. Delhi Administration the Supreme Court said, “Fetters, especially bar fetters, shall be shunned as violative of human dignity, within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases dealt with next below. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.” Two years later, the Supreme Court reiterated in Prem Shankar Shukla v. Delhi Administration, “To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our Constitutional culture.” Undermining the Constitutional ethos that lies behind these judgment, Clause 43(3) of BNSS-CrPC provides that “The police officer may, keeping in view the nature and gravity of the offence, use handcuff (sic) while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences.” This mechanical enumeration of specific crimes in which the police may use handcuffs will be applied as statutory licence to routinely use handcuffs in most, if not all, cases involving the listed offences. It will then soon infect the general police practice and resurrect the medieval culture of routinely shackling human beings.

Also read: Shoddy Drafting Has Left the Government’s New Criminal Bills With Glaring Errors

IX. Maximising police custody

The ninth attack on our freedom is the maximisation by BNSS-CrPC (Clause 187 (2)) of dreaded police custody during investigation. Under current law, as held by the Supreme court of India in State (Delhi Administration) vs. Dharam Pal (1982) and CBI vs. Anupam J. Kulkarni (1992), the accused can be sent to police custody only for up to fifteen days within the first fifteen days of the accused being presented before the Magistrate after his or her arrest, even if the actual number of days for which the police may get custody in that period is less than fifteen days. Clause 187 (2) of BNSS-CrPC over-rules this judicial dictum and provides that the Judicial Magistrate may give police custody for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of the maximum detention period of sixty days (for offences punishable with imprisonment for less than ten years) or ninety days (for offences punishable with death or imprisonment for life or imprisonment for a term of not less than ten years). As a result, the threat of police custody will hang over the heads of the accused during the entire investigation period.

Illustration: Pariplab Chakraborty

X. Forcing provision of biometrics

The tenth attack on peoples’ Constitutional right to privacy is the unreasonable and excessive compulsion created against all persons to provide specimen signatures, finger impressions, handwriting or voice samples in connection with an investigation even if he or she is not an accused person. Clause 349 of BNSS-CrPC provides that a magistrate “may direct any person, including an accused person, to give specimen signatures or finger impressions or handwriting or voice sample” Clause 349 of BNSS-CrPC mainstreams and integrates into the “mother” penal law the provisions of the recent Criminal Procedure (Identification) Act, 2022 which gives power to a police officer or a prison officer to compulsorily take from convicts and persons arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law “measurements” (including finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure,1973 (except that a person arrested other than for an offence committed against a woman or a child or for an offence punishable with imprisonment of seven years or more) is not obliged to allow taking of biological samples). The impact of clause 349 of BNSS-CrPC is that even persons not falling under the Criminal Procedure (Identification) Act, 2022 (i.e., convicts and arrested persons) will also now be liable to be forced by a magistrate to provide her or his “measurements”.

XI. Enhancing discretionary power of police

The 11th change that enhances the discretionary power of the police in relation to crimes committed against powerless victims is the reversal of the direction of the Supreme Court of India in Lalita Kumari vs. Government of Uttar Pradesh (2014) that every information received by a police station must be recorded as a first information report and investigated even if the police is not satisfied with the reasonableness or credibility of the information. This judicial decision responded to the reality that powerful people can ensure that no FIR is registered and no investigation is conducted based on information provided by powerless people with respect to crimes committed by the powerful against them. Clause 173(3) of BNSS-CrPC would now make the recording of a FIR discretionary for the police. The police will have the power to conduct a preliminary enquiry to ascertain whether there exists a prima facie case before proceeding to investigate information alleging commission of a cognizable offence punishable with imprisonment between three years and seven years.

XII. Intensifying the pain of imprisonment

The 12th attack on democracy is the enhancement of incarceration. While there is a poorly developed and limited introduction of community service as a limited alternative punishment, the Bills increase the length of imprisonment virtually across the board, almost routinely. The Indian list of capital offences and offences punishable with life imprisonment was already much too long for a democracy under existing law, reflecting the draconian approach adopted by even social democratic governments that largely ruled India until a decade ago. The new Bills add at least three new capital offences and six life sentences to this list. While life imprisonment that must mandatorily last for the remainder of the convict’s natural life (as against 14 years) is now confined to a few offences, Clause 4(b) of BNS-IPC makes imprisonment for the remainder of the convict’s natural life the only form of life imprisonment in India. The possibility of house arrest of under-trials is ruled out by the new BNSS-CrPC Clause 187(5) which provides that “no person shall be detained otherwise than in police station under police custody or in prison under judicial custody or place declared as prison by the Central Government or the State Government.” Under-trials from marginalised social groups constitute the bulk of inmates in India’s over-crowded and inhumane prisons where their incarceration becomes punishment even before they are convicted. Closing this door and forcing them all to be in jail, shows that one of the objectives of these reforms is to make the process the punishment.

The new laws seek to make a Stan Swamy of us all.

Also read: Know The Three New Criminal Bills: What’s New and What’s Old?

Overview and conclusion

We have had several law commission reports and reform committee reports that have recommended changes to criminal law over the years — indeed it has been one of the principal topics of the work of the law commission. We have always been able to understand and analyse the goals and rationale guiding proposed amendments to the law from these reports. This is the first time, however, that we do not have the benefit of the report of the committee that drafted three new statutes because, if there is such a report beyond the draft, it is not publicly available. A very important unanswered question is why was it necessary to repeal the existing laws and enact three new laws? Separately, it must be noted that the draft Bills are riddled with drafting errors and typos.

In a reference to the then still draft Indian Penal Code, Thomas Macaulay, the principal draftsman of the Indian Penal Code, said in a speech delivered to the U.K. House of Commons on the 10th of July 1833, “We propose no rash innovation; we wish to give no shock to the prejudices of any part of our subjects. Our principle is simply this; uniformity where you can have it: diversity where you must have it; but in all cases certainty.” If there is anything colonial that has been rejected in the new language proposed in the two Sanhitas and the Adhiniyam, it is this precept. At least for now, however, this precept remains a part of the inviolable Constitutional basic feature of “the rule of law”.

The overall flavour of the changes sought to be made by the new statutes is captured by a relatively minor change of vocabulary. The current Indian Penal Code refers to the local and district criminal courts as “courts of justice”. There are at least some 39 such references in the IPC. This vocabulary is a gentle reminder to the judges who sit in these courts that they are guardians of justice, sitting as sentinels against injustice by the executive, that they are not mere extensions of the law and order machinery, not police in black more concerned with increasing conviction rates (a main goal identified by the Union in this reform exercise) and throwing people in jail than with justice. Sadly, the new BNS-IPC entirely drops the term “court of justice” and refers to these courts merely as “courts”. Perhaps the drafting committee found that “justice” is a colonial idea that had to expurgated from criminal law.

It is clear that the ethos of these provisions is not drawn from our secular, democratic, republican constitution and its idea of the rule of law and power emanating from the people. It is drawn from the ethos of religion — where dharma, laid down by God and administered by rulers and priests, is the source of law and is to be obeyed unquestioningly by people. The names of the Bills are significant in this regard: Bharatiya Nyaya Sanhita (the collection of Bharatiya justice which is based on Sanatana Dharma); Bharatiya Nagarik Suraksha Sanhita (the collection of Bharatiya security for citizens, drawn from Sanatana Dharma); and Bharatiya Sakshya Adhiniyam (the law of Bharatiya Evidence). The name “Bharatiya Nyaya Sanhita” for the keystone law is of special significance. Although the literal meaning of the word “Sanhita” is “collection”, it is widely understood as referring to a collection of hymns and mantras in each of the Vedas. The Manusmriti, known for its discriminatory content, is also known as a Sanhita. This is the first time that a statute in India is being given a theocratic name — not any “ordinary” statute, but the most consequential legal instrument in our country after the Constitution. This change of nomenclature reveals the intent and essence of the criminal law reform. It is a modest start of the process of shifting the foundation of our legal system from constitutional to theocratic, the shilanyas of the construction of a Hindu legal system in India.

There is not a single liberal strand in any of the changes made in the law. The entire IPC toolkit now selectively targeted against liberal voices is retained in the new Sanhitas including ‘promoting enmity between different groups on grounds of religion, race, place of birth, residence, language and doing acts prejudicial to the maintenance of harmony’; ‘statements creating or promoting enmity, hatred or ill-will between classes’;‘imputations prejudicial to national integration’;‘deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs;’ and ‘uttering words, etc., with deliberate intent to wound the religious feelings of any person’. An epochal change such as the introduction of an entirely new set of criminal laws is also a huge missed opportunity to correct the skewed balance in our criminal law in favour of protecting state power and wealth as against protecting individual rights.

The Union home minister has repeatedly said that the purpose of the reforms is to decolonize criminal law and put in place laws “imbibed with the Indian soul”. This is far from the truth. That the aim of the new laws is to decolonize criminal law is at best a populist political claim. The fact, in the words of a scholar of the subject, is that “criminal law in the British Empire was neither fully benevolent nor fully despotic, constrained by race and inequality in one direction, and constitutionalism and an ideological adherence to the rule of law in the other.” The Union government’s proposed amendments embrace, retain and enlarge most of the despotic colonial content of the Indian Penal Code, in letter and in spirit. The colonial soul is safely ensconced in the two Sanhitas. On the contrary, what is decolonised is the progressive content of the colonial code such as the ideologies of constitutionalism and the rule of law.

The Supreme Court will face one of the greatest tests in its history when the constitutionality of the three Bills are challenged once they are enacted.

Criminal law deeply affects the common masses. Apart from crimes committed by the state and powerful segments of society, crime is for the most part violence by poor males against poor males and females. The common people of India will therefore look to the Supreme Court for an accurate determination of the existence, non- existence, nature or extent of their fundamental rights and the protection of these rights against the all-powerful state, not a balancing of their rights against the interests of an anti-Constitutional ideological movement acting as the government of the day.

G. Mohan Gopal is an advocate, Supreme Court of India and a renowned legal academician.

Parliamentary Panel Defers Adopting Draft Report on Bills to Replace Criminal Laws

Three opposition members filed dissent notes, demanding changes to the Bills that seek to replace the Indian Penal Code and the Code of Criminal Procedure, according to reports.

New Delhi: The Parliamentary Standing Committee on Home Affairs did not adopt the draft report on the three Bills that seek to replace existing criminal laws on Friday as scheduled, as opposition members sought more to examine it.

According to The Hindu, while the English version of the draft report was circulated last week, the Hindi version was sent to the panel’s members only on Thursday evening, hours before it was slated to be adopted.

The newspaper reported that Congress MPs Adhir Ranjan Chowdhary and Digivijay Singh, and Dravida Munnetra Kazhagam (DMK) MP N.R. Elango have filed dissent notes to chairman Brijlal, demanding changes to the Bharatiya Nyaya Sanhita Bill, 2023 (to replace the Indian Penal Code), and the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (to replace the Code of Criminal Procedure).

There is “unanimity” in the draft report regarding the Bharatiya Sakshya Bill, 2023 which will replace the Indian Evidence Act, The Hindu reported.

The Bills were introduced in August, during the Monsoon Session of Parliament, by Union home minister Amit Shah and were immediately sent to the standing committee.

According to reports, the panel is scheduled to meet again on November 6. The panel has held 12 meetings so far on the three Bills, which opposition members feel is inadequate given the changes that they propose.

Also Read | Know The Three New Criminal Bills: What’s New and What’s Old?

After Friday’s meeting began, according to The Hindu, panel chairman Brijlal, a BJP MP, told the members that the draft reports would be withheld but did not provide the reasons for doing so.

The Trinamool Congress, whose MPs Derek O’Brien and Kakoli Ghosh Dastidar had travelled to Delhi for the meeting, criticised the chairman for not providing the reasons. Their party had written to Brijlal on Friday morning, saying that the committee should seek an extension of at least three months to submit its report on the Bills.

Congress MP P. Chidambaram had also sought more time and increased consultations on the Bills.

According to The Hindu, DMK MP. Elango raised “three key points” at Friday’s meeting. The Bills need “extensive consultations” with governments and stakeholders in the states, he said. He also criticised the Hindi nomenclature of the Bills for being “exclusionary for a large section of the country”. He added that because the Bills are “largely a copy of the existing codes”, the government could have sought to amend the laws instead of bringing in new legislation, according to the newspaper.

Earlier reports said that the draft report recommends that a gender-neutral provision criminalising adultery should be brought in, as well as criminalising non-consensual sex between men, women or transpersons.

The New Criminal Bills Allow the Govt to Decide Who Gets Booked and Who Doesn’t for the Same Act

The new Bills are actually quite colonial in the way that they give enhanced power to the state to assign meanings to words and actions.

Decolonisation is a delicate task. Among other things, it requires the difficult acknowledgment that there are always continuities in knowledge, and that the trick is not to be embarrassed by them, or conceal them, but rather to engage critically with colonial contributions to knowledge, and correct or adapt it where necessary, in order to redistribute power and expand freedoms in the present.

On the other hand, decolonisation may also be imagined as an act of violent rupture from the past, where each new achievement is seen not as building upon (or even breaking apart) existing knowledge but as reconquest. Such a position views ‘civilisations’ as homogenous and isolated blocs in time and space, and decolonisation merely as reclamation (and not redistribution) of lost power. There is always the risk, then, that the process is reduced to a ‘civilisational’ show of supremacy and strength.

Ironically, the denial of epistemological and cultural continuities with the past is very much a colonial mode of exercising control. Moreover, such repudiation results either in violent, yet often meaningless, ruptures like simplistic rendering of histories, or in some cases complete erasures – changing familiar names, altering architectural heritage or, and often at the same time, it also results in an unexamined acceptance of the underlying logic of colonialism which, put loosely, treats people as expendable to state power and profits.

We seem to be living in such a moment at present.

A significant portion of state and populist discourse is framed around conquest, reconquest, and attempts to establish some sort of epistemic hegemony. We would rather be ‘vishwaguru’ (global teacher), implying a preference for benevolent domination, than ‘vishwamitra’ (universal friend), which might evoke something closer to decolonised, equal friendships.

Also read: Shoddy Drafting Has Left the Government’s New Criminal Bills With Glaring Errors

It is also in this moment that the government has introduced three new Bills in parliament, with the objective of repealing the ‘colonial’ criminal laws comprising the Indian Penal Code of 1860, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1898 (reenacted in 1973). The new Bills are not mere amendments but apparently ‘decolonised’ laws for contemporary times.

It would be interesting to examine the continuities and the ruptures that are on display in the new Bills. It would also be worthwhile to see whether the attempt at ‘decolonisation’ manages to redistribute power.

How does the state organise power within the criminal justice system?

One of the tasks that laws perform is to ascribe meanings to everyday acts. They organise cognitive abilities such that certain actions are collectively recognised as being criminal, and certain others as not.

Laws also arrange and organise acceptable forms of violence: an individual who confines another against their will, in order to coerce them into doing something, is committing an offence, unlike the state which may hold a suspect for six months without charge as a coercive interrogation tactic.

Such arrangements of the law leave scope for inequity in the distribution of power between state and citizens. Yet this is tolerable, since there is a presumption of neutrality with the state. It is presumed that the state enforces restrictions only in the larger ‘public interest’, and does so equally with respect to different interest groups. The state is shorthand for nobility of purpose.

These are rebuttable presumptions, of course. In a constitutional democracy, laws also provide space for groups and individuals to rebut the supposed neutrality of the state, or to try to shift the meanings ascribed to certain actions: to make the case, for instance, that six months of detention without charge in order to be able to interrogate under duress is unreasonable and a form of violence upon a suspect’s liberty. Of course, for the courts to recognise such detention by the state as any kind of violence would require a clear cognitive shift.

Also read: Amit Shah Misled Parliament on Three Criminal Bills: Congress

The redistribution of power rests in such pulls and pushes over meaning. Colonial, authoritarian or majoritarian states (and their drafting committees) guard the power to assign meanings very jealously. Such states use both structural and direct violence as instruments of governance more frequently. They are more invested in organising cognitive abilities in a way that recognises state excesses not as violence but as nationalism; and correspondingly, all critique as “conspiracy”, “violence” or “terrorism”.

Thus any attempt at decolonisation of criminal laws must naturally engage with the appropriations of meanings – and the push backs – as they have been playing out on the national scene in all too obvious ways. I have two dramatic examples in mind.

The resurgent state’s right to meanings

1. Nalini and the anti-CAA protests

The word ‘terrorism’ is associated with acts of spectacular, and generalised violence. To label an act as ‘terrorism’ is to completely delegitimise and to hollow it of all meaning and context. When an act is recognised as terrorism, it deserves no more understanding or engagement.

In State of Tamil Nadu through Superintendent of Police, CBI/SIT vs. Nalini & 25 Ors. (1999) 5 SCC 253, a three-judge bench of the Supreme Court of India gave a concurring finding on whether the assassination of former Prime Minister Rajiv Gandhi amounted to a terrorist act. The court ruled that the assassination was an instance of political violence but did not constitute terrorism:

“It is true, LTTE leaders were bitterly critical of the ‘India- Sri Lanka Accord’, which was signed on 22-7-1987. […] The mere fact that their action resulted in the killing of 18 persons, which would have struck great terror in the people of India, has been projected as evidence that they intended to strike terror in the people. We have no doubt that the aftermath of the carnage at Sriperumbudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that is a different matter and we cannot attribute an intention to the conspirators to kill anyone other than Rajiv Gandhi and the contemporaneous destruction of the killer also.” [Pages 298, 300].

Nalini was still convicted and sentenced for murder under IPC Sections 302/34. However, one might argue that the judgement did recognise how politically loaded the term ‘terrorism’ is, and kept the state from classifying violence as such, at will.

One of the last photographs of Rajiv Gandhi, taken just before his assassination, by the freelance photographer Hari Babu, believed to have been tasked by the LTTE’s Sivarasan. Tanu, the actual assassin, is standing behind the girl in a white shirt.

Years later, a resurgent state, appearing before the constitutional court, reclaimed the right to unilaterally delegitimise criticism.

In a judgement granting bail to Asif Tanha, Devangana Kalita and Natasha Narwal, who had been charged with terrorist offences for their role in actively mobilising crowds for the anti-CAA protests [Asif Iqbal Tanha vs. State of NCT of Delhi (Crl. A. 39/2021)], the Delhi High court had suggested that the state should desist from “foisting extremely grave and serious penal provisions, frivolously upon people” [Page 86, Asif]. The state appealed the judgement in the Supreme Court and, amongst other arguments, also made this odd reference to Nalini’s case: “If this judgement [the Delhi High court judgment granting bail] is to be accepted, the lady who assassinated the prime minister is also innocent, because in her mind also, she was only protesting”.

The Supreme Court has admitted the appeal for hearing at a later date, but pending hearing, these barbs continue to hang heavy. This remark contains two implications: a) any bitter criticism of government action may (or may not) eventually result in assassinations of the leadership, and regardless of the actual end result, criticisms and public protests are inherently dangerous and constitute terrorist activities.

Natasha Narwal and Devangana Kalita. Photos: Twitter/@SfiZhdc

Civil disobedience and criminal misdemeanours form a slippery slope towards political assassinations and must be treated as one of a series of conspiratorial terrorist activities. At the same time, the state regards only those political acts that are critical of it as dangerous; ugly and violent protests against its dissidents, performed by its allies, are not delegitimised; nor is ‘reactionary’ violence by the state and its allies, when apparently ‘provoked’ by dissident protests (thus ‘goli maaro’ escaped censure). Secondly,when described as ‘terrorism’, even a speech or acts of civil disobedience are deemed to be inherently violent and illegitimate. The state wishes to dispense with the legal requirement to find causal links between such political acts and actual instances of violence (caused by the same actors or with their tacit support). Note that even in Nalini’s case, the Supreme Court had ruled that even an assassination was not per se a terrorist act (that it was not without political meaning and context) and also that Nalini’s complicity in the actual violence had to be carefully proven.

This new position is not borne out in existing law, particularly now after the latest Supreme Court judgement in the case of Vernon Gonsalves v. State of Maharashtra (July, 2023),where the Supreme Court, after a long gap, insisted on a prima facie and material link – as opposed to a political or rhetorical one – between the condemned figure of the dissident and actual violence.

Yet, this very important judgement has been followed by fresh criminal complaints and arrests, as before. The state has even filed complaints against journalists, and fact-finding teams who blame the government for any violence on the same premise that any criticism of the government is itself mischievous, violent and illegitimate. The state must apparently not be censured or held accountable anymore. The reordering of ‘legitimate’ and ‘illegitimate’ violence has thus slowly been taking shape.

2. Balwant Singh to Amulya Leona and Akbar Lone

On October 31, 1984 – the day that Indira Gandhi, then prime minister of India, was assassinated – two government employees, Balwant Singh and Bhupinder Singh, walked out of their offices in Chandigarh and raised certain slogans in a crowded public place. The prosecution claimed that the slogans they had raised included: “Khalistan Zindabad, Raj Karega Khalsa (long live khalistan, Khalsa will reign)” and “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da (Hindus will be removed from Punjab, now is the time to rule)” They were immediately arrested and convicted of sedition under Section 124-A, and also of promoting enmity between communities under Section 153A. The Supreme Court, however, set aside their conviction by ruling thus:

“The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the Government as established by law in India. […] Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans […] Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.”

Also read: Is the Proposed Overhaul of the Criminal Justice System Decolonising or Recolonising the Law?

In 2020, Amulya Leona, then a teenager, was arrested on charges of sedition for shouting “Pakistan Zindabad (long live Pakistan)” from a public stage. She was whisked off even before she could properly complete the remainder of her sentence, which included “Hindustan Zindabad (long live India)” in a reference to global (post-colonial) solidarity. She remained in jail for nearly four months before she was granted default bail.

More recently though, the state got an endorsement from the constitutional bench itself. During the constitutional challenge to the revocation of Article 370, the state raised an objection with regard to a past action of one of the petitioners. It claimed that, in 2018, the petitioner had raised slogans of “Pakistan Zindabad” in the State Assembly.

Of course, actions in the Assembly are protected by ‘parliamentary privilege’ (Article 194 of the constitution), but even otherwise the petitioner’s conduct has no bearing on his rights to challenge the revocation in a court of law. However, the constitution bench took the matter quite seriously, perhaps even thinking that to say “Pakistan Zindabad” really means “Hindustan Murdabad (death to India)”. If so, they neglected to regard another finding in the Supreme Court’s judgement in Balwant Singh’s case (although admittedly by a bench of lesser strength):

“It is not the prosecution case that either of the appellants had shouted the slogan ‘Hindustan Murdabad’. On what material did the learned Judge find that the appellants had shouted that particular slogan belies our comprehensions. Obviously, for convicting the appellants, the trial Judge also pressed into aid the allegation that the appellants had shouted ‘Hindustan Murdabad’, which is nobody’s case. The learned trial Judge, to say the least, seems to have drawn upon his imagination, a course not permissible for a Court of Law.”

Anyhow, the constitutional bench of the Supreme Court has now demanded from the petitioner an affidavit swearing allegiance to the constitution, which ironically grants him the right to shout all manner of offensive slogans, as long as they don’t cause immediate violence.

Asaduddin Owaisi tries to stop Amulya Leona from shouting ‘Pakistan zindaband, Hindustan zindabad’. Photo: PTI

The state has managed to efficiently attach the spectre of violence to certain political speeches/acts, while also removing any need to show actual violence in order for a speech/act to be deemed ‘violent’.

Over time, consecutive governments first succeeded in attributing disaffection to those who shout “Pakistan Zindabad”, and then imperceptibly turned them into constitutional outcasts, unworthy of the protection of the rule of law.

The committees speak only to the Shahs, and the Shahs speak only to God*

In 2020, The Ministry of Home Affairs appointed an all men’s ‘Committee for Reforms in Criminal Laws’ to review existing laws and ‘recommend reforms in a principled, effective and efficient manner’. Three years later, in 2023, the Committee came out with the draft Bills.

Some of the shifts in meaning described above are recent, having taken place after the new Bills were drafted, but the small pushes have been taking place for years now. While the Supreme Court reaffirmed that fundamental rights cannot be suspended in principle,in the case of Justice K.S.Puttaswamy (retired) v. Union of India (2017), the state has been finding exceptions to the general rule: couldn’t they be suspended for a very short period in Kashmir, when minors had to be detained? Could the right to protest not be suspended for three days over G20, when we must all put our best foot forward? Could we not suspend the right to liberty for ‘constitutional outcastes’ of suspect loyalty?

*Borrowed from the poem about the Bostonian oligarchs, also known as the Boston Brahmins. A handful of families had acquired massive wealth and cornered all economic activity, partially by keeping all decision-making powers to themselves, and justifying it by invoking their own apparent superior moral sense and nobility of purpose.

Here’s to dear old Boston, the land of the bean and the Cod;

Where the Lowells speak only to Cabots

And the Cabots speak only to God.

How could the committee for decolonisation of criminal laws miss these questions?

It is only a testimony to its complete control over ascription of meanings that the present government is able to invert, or change meanings as quicksand. In its deft hands, the same acts are either delegitimised, or deemed completely legitimate. This uncertainty of meanings deserves a pushback too, for it allows the government to apply its own low standards of ‘political criminality’ rather selectively – some are able to disavow the Indian constitution or make vitriolic speeches about constitutional values with impunity, while others aren’t able to criticise state action without being deemed treacherous.

How did the drafters of ‘decolonised’ laws not engage with the quietly looming figure of the ‘political prisoner’ in India? How did they neglect to respond to the death in custody of Father Stan Swamy?

In the event, the new Bills crystallise the shifts in meaning that the state has ostensibly been wanting. The new Bills formalise much that was happening in the dark recesses of the criminal justice system, or in the spaces between the pushes and the pushbacks in the constitutional courts. They also bring into the criminal justice mainstream the exceptionalism of ‘security laws’ such as Armed Forces (Special Powers) Act (AFSPA) and the Unlawful Activities (Prevention) Act (UAPA) etc by heightening police powers in a deliberate, visual way – the right to use ‘any means necessary’ on the suspect, and the new right to handcuff.

In terms of meanings, the new penal code Bill introduces an open-ended offence of ‘subversive activities’: it could be any political act that the state wishes to delegitimise. It also reiterates a broad and vague definition of ‘terrorist acts’, which could cover a wide range of legitimate protests.

The new Bills introduce new substantive offences that again organise meanings and reorder violence in specific ways. Significantly, it recognises mob lynching as a separate offence, where the motivation for violence is the victim’s identity alone. However, the sentence is discretionary and may be reduced to seven years, which is less than a ‘normal’ murder sentence of life imprisonment or death. It suggests that to lynch is bad, but not quite as bad as ‘murder’. Pointedly, the sentence for concealing one’s identity before marriage, in an approximation of the “love jihad” narrative, is ten years (clauses 69 and 80).

The new Bills are actually quite colonial in the way that they give enhanced power to the state to assign meanings to words and actions, and also mechanical for having reproduced large parts of what they had set out to ‘decolonise’. But, to be fair, the new procedural code is also mindful of housekeeping challenges in the system: there is an obvious attempt to address pendencies and be efficient, primarily by denying strategic adjournments to parties, though not by making it difficult for the state to make superfluous arrests, which would automatically lessen the number of cases.

In the final analysis, the most dramatic rupture here is the trusty name-change. On the other hand, the continuities in terms of consolidation of state power are writ large across the three new Bills, and more consequential.

Shahrukh Alam is a lawyer who practices in Delhi.

Is the Proposed Overhaul of the Criminal Justice System Decolonising or Recolonising the Law?

Changing the names of laws to Hindi will not free us from their colonial legacies.

On August 11, 3 new Bills; Bhartiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bhartiya Sakshya Bill were introduced in the Lok Sabha seeking to replace the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act.

While introducing them, Union home minister Amit Shah said “from 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. With these three laws there will be a major change in the criminal justice system in this country”, finally freeing us from colonial legacies.

While the Bills have been referred to the standing committee on home affairs for further examination, they are being touted by the government and its ideologues as effecting ‘decolonisation’ of the legal and criminal justice system in India.

Legal experts are still studying the new Bills and grappling with the introduced changes, but most analyses so far suggest that not much has been changed in substance. Apart from naming the bills in Hindi and calling it ‘imbibing the laws with Indian soul’, most changes consist of shifting around sections of the existing laws and some semantic changes in construction of sentences. A Turnitin (plagiarism-detector software) report suggests 83% overlap between the IPC and BNS.

Also read: As Laws Expand Their Reach in India, Political Freedoms Shrink

One of the major planks of this claimed decolonisation is removal of section 124(a), popularly known as the offence of sedition. However, on closer scrutiny this claim falls flat as a similar offence is introduced through section 150 in the BNS.

In fact, this section is even more vague and much wider in scope than the IPC section on Sedition as it includes even intention in its ambit without adequate explanations. The vaguer the definition, the more power the state has to clampdown on the perceived threats to itself and brand any dissent as anti-national.

While the deletion of the terms such as lunatic and of unsound mind and making investigative and trial process time bound in the BNSS is being celebrated for shedding colonial legacies, the BNSS has brought in changes expanding the powers of police and the executive tremendously.

The changes include broadening the scope of investigative powers under search and seizure, ability to get samples from a larger set of people, curbing the power of commutation, bringing handcuffs back, making it more difficult to prosecute government officials, and increased scope of the remand procedure.

Apart from their individual effects of further curbing civil liberties, I want to focus on the cumulative impact and political import such expansion of the power and impunity of the state. And that is the crux of the matter here – the power relationship between the state and the citizens, the government and the governed.

While decolonisation is a much-contested term, especially in the discipline of History where I come from, it’s fundamentally understood as the alteration of the power relationship between the state and the governed in favour of the latter, their transition from subjects to citizens.

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The colonial state and its forms of government, apart from extractive relationships, were characterised by rule by force and subjection of populations. The interests of the state trumped the interests and rights of the governed, with substantial impunity and non-accountability of the state to the subject populations.

This was also reflected in the nature of laws, especially the criminal justice system which was characterised by wide powers of policing and arrest with an emphasis on punishment and disciplining of the ‘errant’ subjects rather than justice. Hence, any effective decolonisation would entail a shift in this relationship in terms of devolving substantial power to the citizens and their participation in modes of governance and making of laws which govern their lives.

While the proposed changes further entrench the power relationship between the state and citizens in favour of the former, even the process of their formulation and introduction in the parliament lack public participation and transparency.

The terms of reference of the Committee for Reforms in Criminal Law, which was tasked with drafting of these Bills May 2020, were never made public. Further, it lacked diversity and representative voices of people across disciplines and capacities, and the committee was given just six months to overhaul three major criminal laws.

This lack continued in the process of introduction of these Bills. They were introduced on the last day of the session leaving no chance for any debate or discussion about the monumental changes they are supposed to bring to the criminal justice system in this country thus affecting the lives of 1.3 billion people.

It is not just these bills, but this government’s recurring pattern of formulating Bills and laws without wider public consultations and debates, ignoring g critical opinions, and passing laws in haste without adequate discussions even in the Parliament.

There has also been a constant dilution of measures of participation, transparency, and accountability of the state, rendering citizens more vulnerable in front of the state. A prime example of this is the recently passed Data Protection Bill 2023 which dilutes the Right to Information Act, 2005 substantially and entrenches executive control over data.

Laws are always embedded in wider networks of meaning and context in society. It derives its power not just from the written texts but d web of power relations in the society. The criminal justice system represents the most direct relationship of power between people and the state as an individual is pitted against the whole might of the state as an accused. So even with some ‘progressive changes in the new Bills, they are very far from effecting any real decolonisation as long as the text of governing remains entrenched in the authoritarian colonial power relations of putting state over people. Changing the names to Hindi will not free us from colonial legacies.

Natasha Narwal, a feminist activist based in Delhi and Haryana, is currently associated with Pinjratod campaign.

Know The Three New Criminal Bills: What’s New and What’s Old?

A clause-by-clause comparison of what the Bills propose to replace has been prepared by NLU Delhi’s Project 39A.

The three new criminal law Bills have generated concerns, questions and commentary on the changes that have been made. There are also questions about how different the Bills are compared to existing codes and laws.

The Union home minister, Amit Shah, when introducing the Bills, said the Bharatiya Nyaya Sanhita, 2023 (‘New Penal Bill’), Bharatiya Nagarik Suraksha Sanhita, 2023 (‘New Procedure Bill’) and Bharatiya Sakshya Bill, 2023 (‘New Evidence Bill’), were a bid to escape “colonial legacy”. While their existing counterparts – the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act – were legislated by the British Indian government, changes have been made by parliament since Independence.

The National Law University’s Project 39A has compiled a detailed comparison of each of these Bills with what they propose to replace. The comparison answers many questions about what has been borrowed, what has been changed and what new provisions have been inserted.

An annotated comparison of Bharatiya Nagarik Suraksha Sanhita, 2023 and the Code of Criminal Procedure, 1973 by Project 39A.

An annotated comparison of the Bharatiya Nyaya Sanhita Bill, 2023 and the Indian Penal Code, 1860 by Project 39A.

An annotated comparison of the Bharatiya Sakshya Bill, 2023 and the Indian Evidence Act, 1872: by Project 39A.