India’s Claim To Have Replaced Colonial-Era Criminal Laws Is A Sham – Analysis

While some of the provisions of the new laws are progressive, critics say that they are generally harsher than the colonial laws, with increased powers given to the police.

In a controversial step, Narendra Modi government in India has replaced the country's criminal laws by new ones on the plea that the old laws were "colonial" in character and were meant to sustain British colonial interests. 

On July 1, the government replaced the Indian Penal Code (IPC) of 1860; the Code of Criminal Procedure (Cr.PC) of 1973; and the Indian Evidence Act (IEA) of 1872.

The new laws were the Bharatiya Nyaya Sanhita (BNS) to take place of the Indian Penal Code; the Bharatiya Nagarik Suraksha Sanhita (BNSS) to replace the Criminal Procedure Code; and the Bharatiya Sakshya Adhiniyam (BSA) to replace the Indian Evidence Act.

According to Home Minister Amit Shah these laws are "framed by Indians, for Indians.

But critics point out that the new laws are harsher than the colonial laws they replaced, with increased powers given to the police. The stated purpose of liberating the people from servitude is not being fulfilled, they argue.

The new laws have come under heavy flak from opposition parties, the civil society, and most importantly, the legal community itself. There are calls for calls for a review of the laws by parliament and experts while others want a repeal.

Background

In 2023, the Narendra Modi government sought suggestions and recommendations on "comprehensive amendments to criminal laws" from Governors and Chief Ministers of States and Union Territories, High Courts and the Supreme Court, Bar councils, the law universities, members of the Parliament and the general public.

It is pointed out that as per the Pre-Legislative Consultation Policy of 2014. any draft legislation or its key points, should be published in the public domain for a minimum period of thirty days before it is introduced in parliament. And this must be accompanied by a justification for the enactment, its financial implications, and the estimation of the laws' impact on the system and the citizenry.

Additionally, comments received through such a consultation process must be published on the website of the nodal ministry.

But in the case of these laws, the process was not made accessible to the public until it was introduced in parliament, media reports say.

On the day the bills were introduced in parliament, the Speaker had expelled 146 opposition MPs for creating a ruckus in the House.Thus criminal laws of far reaching impact were passed in the absence of the opposition.

Mamata Banerjee, Trinamool Congress leader and West Bengal Chief Minister described the enactment as a "dark day" in Indian democracy. She demanded a fresh parliamentary review of the laws for the sake of "transparency and accountability in the legislative process."

Reportedly, stakeholders such as the police, prosecutors, government officials, judges and court officials, medical and forensic science specialists, lawyer and citizens got only 26 days to submit their comments and suggestions, though Home Minister Shah said that the laws were discussed at various forums for three months.

Are New Laws Needed?

Many leading Supreme Court lawyers pointed out that the total jettisoning of the old criminal laws was not required at all because the new set of laws showed only 12 substantive changes. These could well have been accommodated in the old laws with amendments, they say.

Many of the provisions of the new laws are a duplication of existing laws. The All-Indian Lawyers Association for Justice (AILAJ) has warned that there will be confusion on account of the existence of parallel laws for the same crime. Clause 113 (terrorist acts) of the BNS will clash with the Unlawful Activities (Prevention) Act, 1967 (UAPA) already in force.

It is pointed out that the IPC, Cr.PC and the IEA had existed for over a century and their contents had been a matter of judicial interpretation at High Courts and the Supreme Court. Would these interpretations be valid now?

According to Senior Supreme Court Advocate Indira Jaising, even as the three new criminal laws are being implemented, the old laws willcontinue for another 20 years or more until pending cases governed by them are sorted out.

"In effect, we will be having two parallel criminal justice systems for the foreseeable future, which can range from 20–30 years," Jaising says.

Jaising further states that new the criminal laws may have an impact on the backlog of cases, which is heavy in the Indian courts.

Citing data on pendency of cases from the National Judicial Data Grid she said that in India as a whole, 34,180,141 criminal cases in the district and local level courts; 1,755,946 criminal cases in the High Courts; and 18,049 cases in the Supreme Court are pending..

She expects criminal litigation to increase by 30% as a result of the co-existence of the two sets of laws.

Among the problematic aspects of the new laws is the numbering of the clauses in the new laws. Dissenters said that the massive changes in the numbering would cause confusion and lead to delays in the functioning of the police and the courts.

Illusory De-colonisation

The change is being sold by the nationalist government as "de-colonization", but this is challenged by the opponents who point out that the actual changes are marginal with just 12 substantive changes in the BNS (IPC).

This reality is camouflaged by the substitution of English names by Hindi names and by substituting "Indian" with "Bharatiya."

If de-colonization means giving more freedom and being more just in the administration of justice, the provisions of the new laws do not qualify to be considered "de-colonisation."

The list of acts deemed criminal has been expanded and punishments are harsher. A legal publication called "Leaflet" said that the new laws indicate a "continuation and intensification of colonial-style powers". The police have been given more powers, taking them away from magistrates. In other words, decisions which were left to the courts can now being taken by the police.

For example, under the Unlawful Activity Prevention Act (UAPA) 1967, sanction is required to prosecute someone. But under the BNS the police need no such sanction.

Furthermore, under the BNSS (the new Cr.PC), police custody has been increased from 15 days to 90 days, depending on the gravity of the offence.

A total of 20 new crimes have been added, and the period of imprisonment has been increased for 33 offences. A mandatory minimum punishment has been introduced in 23 crimes.

Sedition, which was a major crime in colonial laws, has been retained with a new nomenclature and a more expansive definition of "Acts endangering sovereignty unity and integrity of India". Provisions under it have been made more stringent.

The death penalty has been retained and has been added for at least four new crimes such as mob lynching and organised crime.

"There is no shift from retributive to rehabilitative justice," the "Leaflet" pointed out.

According to author and Supreme Court Advocate Nipun Saxena the new laws violate "at least four articles of the constitution and many important judgements of the Supreme Court". These relate to procedural safeguards, protection against illegal detention, and laws against "self-incrimination."

The new Indian Evidence Act (BSA) allows the admissibility of electronic records as evidence. While this is modernization, there are doubts about its implementation in India.

Aakar Patel, chair of board at Amnesty International India, said that in the absence of a robust data protection law and given the documented misuse of electronic evidence in the Bhima Koregaon case and Newsclick case, the new law leaves room for abuse.

"The laws in their current form will be used as pretext to violate the rights of all those who dare speak truth to power. The three new criminal laws in India must be immediately repealed and brought in line with international human rights standards to prevent the continued flagrant misuse to crackdown on peaceful dissent in the country," Patel said.

Dr.Faizan Mustafa of the Chanakya Law University is disheartened to see that the new code has not made any improvements on the inadequate hate speech provisions in the old law.

The offence of adultery reappears in a new avatar as the offence of having sex on the basis of false promises. Deceit included the false promise of employment or promotion, inducement, or marrying after suppressing identity.

But critics say that this might, in some cases, end up criminalising consensual relationships and provide a fillip to the Hindu nationalistic movement against Muslim men making love to or marrying Hindu women (called Love Jihad).

Redeeming Features 

However, there are some redeeming features in the new laws.

Dr.Faizan Mustafa, Law professor and Vice Chancellor of the Chanakya National Law University says that the code punishes lynching by five or more persons without using the term "mob lynching". Death penalty has been provided for the rape of a minor.

The BNS, under Clause 103, for the first time also recognises murder on the ground of race, caste, or community as a separate offence. The new provision could now ensure such crimes, which have been on the rise in recent years, get legal recognition.

"Community service" has been introduced for six crimes.

Challenge in Supreme Court

Meanwhile, a petition was moved in the Supreme Court seeking a stay on the implementation of the new laws saying that they were passed without detailed debate or effective discussion in parliament as a large number of Members from the Opposition had been suspended at that time.