Three Bills that the Central government introduced in the Lok Sabha in the monsoon session to replace the Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973 (CrPC), have led to protests throughout the country. The new Acts will have non-English names.
The Bill to replace the IPC is known as The Bharatiya Nyaya Sanhita 2023 (BNS), the one that replaces the the Indian Evidence Act is The Bharatiya Sakshya Bill 2023, and the Bill to replace the CrPC is called The Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS). Introducing the Bills, Home Minister Amit Shah claimed that the preparation of these laws involved holding extensive deliberations with various stakeholders over the last four years.
However, after the protests and criticism in the media, the government promptly referred the Bills to the Standing Committee of Parliament for suggestions and modifications. But here too, one of the complaints is that the Speaker has not allotted enough time to the Committee to debate the three Bills.
Members of the Bar Federation of Tamil Nadu and Puducherry staged a demonstration in front of the Madras High Court stating that the Bills were part of the Sanskritisation of criminal law. The Madras Bar Association, one of the oldest associations of lawyers in the High Court, also raised the banner of revolt against Bills with Hindi names replacing the existing Acts. Lawyers from Karnataka and Kerala also protested against the Centre’s move.
A senior criminal lawyer in the Supreme Court, Rebecca John, claimed that the Bills were “old wine in a new bottle”. In fact, it is not so. If anything, the new Bills are simply a cocktail of several concoctions.
To this day the Home Minister has not placed in Parliament the full report and reference materials relied upon by the Committee for Reforms in Criminal Laws set up in 2020. It is learnt that Solicitor General Tushar Mehta and Additional Solicitor General Suryaprakash Raju were unofficially invited when Ministry officials discussed the committee’s report, and that they exerted great influence over the committee.
First, let us see the legality of the name change. Under Article 348(1)(b) of the Constitution, all Bills to be introduced or Amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State, shall be in the English language. When that is the position, it is surprising that the government should brazenly violate the Constitution by giving the Bills Hindi titles.
The history of laws
When the British took direct control of India during the second half of the 19th century, they found that there was no codified criminal law in the territories under their control and decided to draft a new law for British India. Lord Macaulay had prepared a draft code during his time in India in the 1830s and it was adopted as the Indian Penal Code, 1860. The draftsmen of the law largely adopted the British criminal law, and that is why the IPC has sections like Section 377 (unnatural offences) and Section 497 (adultery).
The IPC enabled the country to have a comprehensive criminal law for over 75 years. It was the law for the entire subcontinent; Pakistan still has a similar law called the Pakistan Penal Code (PPC).
After the enactment of the Constitution of India with effect from January 26, 1950, and through Article 13(1), any provision in force until then that was inconsistent with the provisions of the fundamental rights in the Constitution was declared void to the extent of the inconsistency.
“Will merely changing IPC to BNS have any impact on the law itself? There may be a need to revisit old laws in order to consolidate and have a comprehensive code.”
Notwithstanding such a constitutional bar, some provisions of the IPC continued to be used to penalise people until the Supreme Court decriminalised them. Apart from a few provisions that were held to be unconstitutional, the penal law provided under the IPC largely continued to be in force. This has led to some jurists claiming that the law has stood the test of time, but such a claim may be a little off the mark.
The IPC underwent several amendments in its 163 years of existence. Several new criminal laws were also introduced, among them the Prevention of Corruption Act, 1973, the Unlawful Activities (Prevention) Act, 1967, and the Prevention of Money Laundering Act, 2002 (PMLA).
- After protests and criticism in the media, the government referred the Bills to the Standing Committee of Parliament.
- Since criminal law comes under the Concurrent List, States can make their own laws and amend the Central law according to their needs.
- The new laws will give rise to several difficulties since the laws they replace had over a century of interpretation by different courts.
Since criminal law comes under the Concurrent List in the Constitution, States can make their own laws and amend the Central law according to their needs, with the approval of the President. Many States have amended the relevant provisions of the IPC taking into account unique local developments.
If the BNS comes into force as it is, it may repeal all those State enactments and States may be deprived of the provision to have their own amendments. It is not clear whether the Committee for Reforms in Criminal Laws took into account the different amendments prevailing in different States with respect to the three Acts.
Although several law commissions have made recommendations, the last being the Committee on Reforms of Criminal Justice System headed by Justice V.S. Malimath in 2003, successive governments have failed to implement them. Instead, certain piecemeal amendments have been brought as knee-jerk reactions.
Prime Minister Narendra Modi, in his speech in Parliament, said: “New laws should be made by abolishing the laws which have been going on from the time of slavery.” But will merely renaming IPC to BNS and juggling the provisions have any impact on the law itself? There may be a bigger need to revisit old laws to consolidate them and have a comprehensive code that subsumes the development of each law so far.
The BNS repeals 22 sections of the IPC and amends 175 out of the IPC’s 511 sections. Similarly, BSB amends 23 of the 167 sections of the Indian Evidence Act. Similarly, BNSS amends 107 of 484 sections in the CrPC. It is not possible in this article to discuss the various absurdities, gross mistakes, and inconsistent provisions in the laws. But a complete reallocation of sections will only create utter confusion for the bar and bench. Thana policemen still make mistakes with the old laws; now, they will have to go for a refresher course on the amendments and a comparative analysis of the old and the new. Besides, fraud by any section number will still remain char sow bees.
It is certain that the new laws will give rise to several difficulties since the laws they replace had over a century of interpretation by different courts. One is reminded of the old doggerel:
“I am the parliamentary draftsman
I draft all the laws
For half the litigation
Undoubtedly, I am the cause”
The CrPC was enacted only in 1973. What is the need for a sudden change? Millions of copies of the various forms made under it will now have to be discarded by courts and law enforcement agencies. Commenting on the new Bills, Justice B.N. Srikrishna (retd) of the Supreme Court reportedly said: “I do not know if the new Acts have the same terseness in definitions, which is the hallmark of good legislation. As for their functionality and impact on court proceedings, I am not sure.”
Why do we need to shuffle the laws like a pack of cards? Let us not waste time like Tughlaq who changed capitals and whose memory you desperately want to erase in Delhi.
Justice K. Chandru is a retired judge of the Madras High Court.