The three new criminal laws that were passed by Parliament in 2023, and which came into effect on July 1 this year, have met with strong opposition from diverse sections. Bar associations, judges, lawyers, researchers, all opposition political parties, civil society organisations, and individuals have criticised the Bharatiya Nyaya Sanhita, 2023 (BNS, which replaces the Indian Penal Code [IPC], 1860), the Bharatiya Sakshya Adhiniyam, 2023 (replaces the Indian Evidence Act, 1872) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, which replaces the Code of Criminal Procedure [CrPC], 1973). If the government hoped to deflect attention from the controversies around NEET and the functioning of the National Testing Agency by notifying the new laws on July 1, it has only waded into another controversy.
The new laws, which received President Droupadi Murmu’s assent on December 25, 2023, were passed without much debate in Parliament when a large number of opposition MPs were suspended and therefore not present in the House.
Doubts over consultation process
The Ministry of Home Affairs had set up a five-member expert committee to draft the new laws that, according to the government, shake off the legacy of colonial statutes. In mid-June, Union Minister of Law and Justice Arjun Meghwal said that all due consultation processes had been followed in framing the laws and the reports of the Law Commission of India had been kept in mind. Doubts have been raised, however, on whether the Law Commission, the apex statutory body that recommends new laws or changes in existing laws, was consulted at all. There are also doubts about whether the opinions and representations made by many eminent people, including judges, were taken on board. The draft laws were not put out in the public domain before being introduced as Bills in Parliament. Members of the Parliamentary Standing Committee that examined the laws reportedly sent dissent notes but received no replies, and their points were not taken on board.
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In mid-June, 3,695 citizens petitioned politicians of the INDIA bloc of parties and constituents of the ruling National Democratic Alliance, urging them to thwart the new laws, which they described as anti-democratic.
While introducing the Bills in the Lok Sabha in August 2023, Union Home Minister Amit Shah said: “The soul of the new laws will be to protect all the rights given to Indian citizens by the Constitution and their purpose will not be to punish but to give justice.” He said that the existing laws were signs of slavery as they had been passed by the British Parliament. Such “signs”, he said, had been removed from as many as 475 places. The new laws were made with “Indian thought process” and would bring a “huge change in the criminal justice system”.
Whether the new laws dismantle the colonial architecture of the old ones is open to debate. It has been pointed out that 80 per cent of the previous laws have been retained, and the new laws are merely a “cut-and-paste” job, as some have said. Opposition politicians and legal experts have pointed out that the new laws have made largely cosmetic changes to the old provisions while adding some new penal provisions that give increased powers to the police, dilute civil liberties, promote misogyny, and undermine federalism.
Members of various organisations in Amritsar burn copies of the three new criminal laws, on July 1, 2024. | Photo Credit: NARINDER NANU/AFP
The BNS has 356 sections, whereas the IPC had 511; 175 sections were changed, 8 new ones added, and 22 repealed. In an article in The Indian Express on July 17, the senior advocate Abhishek Singhvi pointed out that 48 provisions of Chapter II on General Explanations of the IPC were packed into Section 3 of Chapter I of the BNS; 84 provisions of Chapter XVII of the IPC on Offences Against Property were bundled into 31 sections Chapter XVII of the BNS.
Another sore point is the provision on treason. Although sedition (24A of the IPC) has been done away with, it has been replaced by Section 152 of the BNS, which is more draconian and sweeping in its scope and potential. Even the airing of grievances against policies perceived to be discriminatory can now be construed as endangering the sovereignty, unity, and integrity of India.
Highlights
- There are significant doubts about whether proper consultation processes were followed, including whether the Law Commission was adequately involved and if public input was sought before introducing the bills in Parliament.
- Despite government claims of shaking off colonial legacy, about 80% of the previous laws have been retained. Critics argue the changes are largely cosmetic and don’t fundamentally alter the colonial structure of the laws.
- Some provisions in the new laws have been criticised for potentially promoting misogyny (such as those related to maintenance and sexual relations under false promises) and for undermining federalism by giving more power to central authorities.
According to Clause 69 of the BNS, those who engage in sexual relations using deceitful means, promising employment or marriage without intending to fulfil such promises, can face imprisonment of up to 10 years along with a fine. There have been legitimate apprehensions regarding this clause, given the bogey of “love jehad” raised by right-wing Hindutva groups.
The new sections provide for e-FIRs, mandatory recording of statements of survivors of sexual violence, and compulsory videography at the time of search and seizure, and they expand the definition of documents to include electronic or digital records, emails, server logs, computers, smartphones, laptops, SMSs, websites, and messages on devices. Terrorism has been defined under criminal laws for the first time. The definition includes armed insurgency, subversive activities, separatism, and challenging the unity, sovereignty, and integrity of India.
Lawyers’ platform raises objections
The All India Lawyers’ Union (AILU), a broad front of lawyers, legal practitioners, teachers, and law students, which has given a call for protest programmes from June 26 onwards, has complained that the Bills were introduced in Parliament without the drafts first being made available in the public domain. Rajya Sabha MP Bikash Ranjan Bhattacharya and Senior Advocate of the Supreme Court C.P. Surendranath, both office-bearers of the AILU, wrote to Meghwal saying the Bills were introduced in Parliament without the required pre-legislative consultation process being complied with or completed and without giving stakeholders and the general public an opportunity for informed debate. The 2014 pre-legislative consultation policy, they said, requires a 30-day consultation period with the public at large before Bills are approved by the Cabinet for introduction in Parliament. The draft Bills should have been shared with the larger public and accompanied by a justification for their enactment, listing of financial implications, and an estimation of the impact of the laws, they said. The comments and objections received through such consultations should have been published on the website of the nodal ministry.
The AILU also pointed out that the new penal provisions were irrational and deficit in reformative content. The death penalty has been retained for various offences other than murder, in spite of the Supreme Court reiterating that the death penalty should be awarded only in the rarest of rare cases. The provision for solitary confinement, the AILU said, was “inhuman” and the enhancement of punishment for certain offences in case the offender had a previous conviction was arbitrary, unreasonable, and disproportionate. Notwithstanding the government’s claims of wanting to protect the rights of women, marital rape is not listed as an offence. Violent and forced sexual intercourse between an estranged couple where the wife lives separately is treated as a lesser offence than rape: punishment is imprisonment up to two years, extendable up to seven years along with a fine. The punishment for rape is 10 years, extendable to life imprisonment.
Section 144(4) of the BNSS on maintenance payable to wife, parents, and children denies the wife’s right to maintenance “if she was living in adultery”. Incidentally, adultery was struck down as a criminal offence by the Supreme Court in 2018.
The new laws give wide discretionary powers to the police, who are not required to file an FIR for cognisable offences punishable for three years or more but less than seven years. The officer in charge of a police station needs to do so only after ascertaining there is a prima facie case. This discretion, the AILU and other experts have pointed out, is open to abuse.
Members of the Tamil Nadu Bar Council and various advocates’ and lawyers’ associations at a rally against the three new criminal laws, at Tiruchi on July 8. | Photo Credit: M. MOORTHY
Section 107 of the BNSS gives rights to the police to approach a magistrate to attach the property of an individual at the time of investigation if there is reason to believe that such property is derived or obtained as a result of criminal activity or from the commission of any offence. Likewise, Section 172 (Preventive Action of the Police) confers wide powers to the police to detain or remove people for resisting, refusing or ignoring any direction. Similarly, the armed forces have been given powers to disburse an assembly if a district magistrate or any other executive magistrate deems it necessary. In Section 130 (1) of the CrPC, only an executive magistrate of the highest rank could request the deployment of the armed forces.
More rhetoric than transformational value
According to Anup Surendranath, Professor of Law and executive director of Project 39A, a criminal justice programme at National Law University Delhi, the new laws have more rhetoric than transformational value. Surendranath, who teaches criminal and evidence law, said that a textual comparison shows that 75 to 80 per cent of the text in the new laws is more or less the same. “There is some reordering and renumbering. The claim that there has been a complete overhaul of India’s criminal laws is simply not true. Despite the strong rhetoric of decolonisation, what Thomas Macaulay drafted in the IPC and what James Fitzjames Stephens drafted in the IE Act has not been changed,” he said.
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“In terms of decolonisation, one needs to ask what one means by decolonising. Just changing names of the laws and labels does not amount to decolonisation. It will have to do with the relationship between the state and the citizen; how justice-oriented are institutions in practice, be it the police, the prosecutor, courts, prisons, and so on. Those institutions approach questions of criminal law and criminal justice with a suspicion of our citizens as people who need to be controlled. It is that approach that needs decolonisation, an approach that views citizens as a threat to the state,” Surendranath said.
““There is some reordering and re- numbering. The claim that there has been a complete overhaul of India’s criminal laws is simply not true.””Arup SurendranathProfessor of Law, National Law University Delhi
“This is a control model. The 20 to 25 per cent changes in the laws only exacerbate the colonial approach,” Surendranath added and said it was important to ask what reform meant and why these laws were characterised as reform. “Is all change reform? What direction should change take for it to qualify as reform? These are relevant questions. For me, the addition of new offences is hugely problematic, particularly the replacement of sedition with an even more dangerously vague provision.”
Union Home Minister Amit Shah at a press conference on the new criminal laws in New Delhi on July 1, when they came into effect. | Photo Credit: PTI
About the terrorism provision, Surendranath pointed out that under the new terror law, a terrorist offence can be investigated by a station house officer. “The argument under the UAPA [Unlawful Activities (Prevention) Act], which has its own lacunae, was that if the investigation is done by a senior officer, there is some assurance of processes being followed.”
The legal expert expressed concern about the enhancement of the duration of custody: “Earlier, the maximum police custody allowed was 15 days, and it had to be the first 15 days after arrest. In 187(2), 15 days of custody can be stretched. But in 187(3), the magistrate is allowed to give any custody between 60 and 90 days. In the original statute, there was a proviso ‘otherwise than in police custody’, which has been done away with. Now the magistrate can give either police custody or judicial custody. It could be a drafting error and, if so, the implications are serious.”
He said that the provision for bail for an undertrial who had completed one-third of his sentence was a good step but questioned the provision of community service only for some offences. Also, he said, “Filing Zero FIRs and the fact that women can file them from anywhere they wish is a good thing. But to say that a preliminary enquiry has to be done before filing an FIR for certain offences goes against several Supreme Court case laws and judgements.”
Looked at overall, therefore, the new laws have not decolonised the existing provisions but have merely made the police more powerful in many instances.
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