New Criminal Justice Laws: A Pertinent Question Not Asked

It is a common refrain that despite India having been independent since 1947 there are laws enacted during the colonial era, some dating back to 19^th century, that are still in vogue. There have been demands to replace these with laws that are congruent with Indian ethos, abide by the Indian constitution and facilitate the governance of the country in line with democratic values. Indian parliament recently passed three bills that became Acts after receiving assent from the President of India on 25 December 2023. The new Acts are:

• Bharatiya Nyaya (Second) Sanhita, 2023 (“BNS”) that has replaced the Indian Penal Code, 1860.
• Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (“BNSS”) that has replaced the Code of Criminal Procedure, 1973.
• Bharatiya Sakshya (Second) Bill, 2023 (“BSB”) that has replaced the Indian Evidence Act, 1872.

These Acts have been presented as the biggest overhaul of the country’s criminal justice system since the time it came under British rule. As per the Government, these Acts were aimed at decolonising British-era criminal laws, introducing Indianness, removing archaic references to the British monarchy and other signs of slavery. There was delay in dispensation of justice, courts were overwhelmed with huge backlog of cases and the marginalised  and vulnerable sections of society were the ultimate victims of the system. It was felt that the old laws only gave priority to the protection of the Treasury and the British Crown. On the other hand, the new laws, made with the intent to meet Indian aspirations, could bring about the desired change in India’s criminal justice system. The position of the Government is that it has a policy of zero tolerance against terrorism and that  these laws have provisions that prevent a terrorist from escaping punishment. Moreover, the guiding philosophy is that the purpose of punishment should be to give justice to the victim and to establish an example in society. In the new laws, crimes against women and children, matters affecting the human body, security of the country’s borders, crimes related to the Army, Navy and Air Force, electoral crimes, tampering with coins, currency notes and government stamps have been given priority. The section related to sedition has been replaced with that of treason. It is the view of the Government that, after the implementation of these laws, there will be a new and fair justice system in the country.

Objections to the Three Acts

 A major objection raised by the opposition parties is that the Bills leading to these Acts were passed without a discussion in Parliament when 107 MPs had been suspended in an unprecedented move. However, a moot point is that, more than two decades ago, discussion as a mechanism for judicious consideration and passage of bills with the overall good of the country as the guiding motive, had been jettisoned by our parliamentarians. Initially, the NDA, led by the BJP and later the other political parties, Congress included, had perfected the art of disrupting the proceedings in Parliament. Consequently, it is rare to see any worthwhile debate in Parliament. There are no statesmen but only petty politicians who masquerade as representatives of the people. Thus, no worthwhile outcome would have been achieved even if such a large number of MPs had not been suspended. Yes, there is no doubt that the opposition parties have been denied an opportunity to create unsavoury scenes and score brownie points in support of their respective political agendas.

However, some legal luminaries and social activists have raised valid points. As per them the new laws could result in violation of human rights and due process of law may be undermined – for example, there may be arbitrary arrests or an individual may be denied the right to a fair and speedy trial. Their argument is that the new laws include provisions to expand detention in police custody from the current 15-day limit to up to 90 days. These laws bring terror, corruption and organised crime under ordinary legislation and, for the first time, decriminalise adultery.

They argue that the Acts grant excessive powers to law enforcement agencies without adequate checks and balances. That could lead to misuse and potential violation of civil liberties. Their contention is that the Acts do not include sufficient mechanisms to protect innocent individuals from wrongful arrest, prosecution or imprisonment. These Acts disproportionately impact the marginalised and, thus, exacerbate inequalities in society. It is felt that the new laws are neither anti-colonial nor transformative. Many say that it is a missed opportunity to fix excessive criminalisation in the country and hands enhanced power to the state and the police. Dispensing with the provision of legal aid from the point of arrest is particularly a cause for concern. Legal experts opine that an impression is being created that society and the state are forever under attack from unknown quarters and the state must always act against its citizens as if the country was under grave threat. There is a point of view that there is no real effort in the Acts to enhance police accountability and that these could strengthen repressive tendencies.

A Pertinent Question

 While the Government, the opposition parties and the critics of the impugned Acts may have their respective points of view, a fact remains that the police are the ultimate instrument through which the new laws are going to be enforced. The Indian Police is governed by the Indian Police Act, 1861. The British framed and promulgated this Act, immediately after the uprising in 1857, with the design to keep Indian citizens subjugated. In essence, this Act favoured the rulers and discriminated against the common man. It had been specifically designed to serve the interests of the colonial rulers. There have been demands from time to time to replace the Indian Police Act, 1861, with an Act that is in keeping with the provisions of the Constitution of India, is fair and meets the expectations of the citizens of the country. Some states like Maharashtra, Gujarat, Kerala and Delhi have moved in this direction and promulgated their own Acts but even these are very similar to the Act of 1861. In 1981, the National Police Commission put up a draft Model Police Act. Unfortunately, this proposed bill, did not see the light of the day. There is a need to make the Indian Police more accountable to the law of the land instead of pandering to their political masters. Rather than instilling fear, the police should generate confidence among the masses. There are similar demands from even the saner elements within the police forces. Mr Prakash Singh, the then DGP Police, Uttar Pradesh, had in 1995 recommended that the Indian Police Act, 1861, be repealed and replaced with a more balanced law that is in line with democratic values. Why is there no demand from the opposition parties that a draconian law of 1861 vintage, that is designed to subjugate the citizens, be replaced with a modern and fair Act? The politicians, both from the ruling party and those in the opposition, are aware that whosoever is in power needs the police to help them wield power. Perhaps, that explains the reticence of the opposition parties. Therefore, this pertinent question is not being raised. Shouldn’t Indian citizens demand that their elected representatives ask this question of the ruling elite?

Conclusion

 India attained independence more than 76 years ago. Unfortunately, to the detriment of its citizens, it is still governed by laws that were designed to serve the interests of its colonial masters. In fact, it would not be an over-statement to say that the erstwhile colonial rulers have been replaced by a self-serving ruling elite that is more interested in wielding power. Service to the nation is not their priority. It is imperative that the country has laws that meet the aspirations of its countrymen. Citizens of the country need to be aware of their rights and obligations and hold those in power accountable for their actions.