Passing of criminal laws in Rajye Sabha

Let’s take a step-in near future for a moment and jump to 1st July 2024. Is something big happening? Yes, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam will become effective from midnight of 1st July 2024. These 3 new laws will form the edifice of the republic’s criminal justice system and will replace the existing Indian Penal Code of 1860, Code of Criminal Procedure 1973 and Evidence Act 1872. 

The BNS, BNNS and BSA were passed by both houses of Parliament during the winter session of 2023, amidst the absence of more than 140 members of the house who were supposedly placed under suspension for their non-nonchalant display of behaviour. On 25th December 2023, the President of India gave her assent to the new bills thus changing their status to law from bill. 

At this moment, I will not indulge into the political controversy surrounding the passing of the laws and instead focus on whether India needs the new laws or not. 

To arrive at an answer, let us proceed step by step. India’s Home Minister has stated the primary purpose of introducing the new laws is to Indianize our criminal justice machinery which runs on decades-old archaic laws made by our colonial occupiers. The government vehemently contends that this is a significant step towards Modi’s ideal of “Viksit Bharat” 2047. 

It is not res integra that the law as developed by the Hon’ble Supreme Court of India accords the presumption of legitimacy and constitutionality to laws passed by the Parliament. The state no doubt has its rhetoric stance of removing colonial imprints strengthened by this legal presumption, however as we unfurl the curtain, we will see the real picture. 

Modi’s fervid claims of Indianizing our criminal justice system profoundly falls short of the idea of India that is more Bharat. More than 80% of the contents contained in each of the 3 laws owe their existence to the former. In other words, the new laws have been cut; copied; pasted and re-coded. Merely on account of being made in India and passed by India for India does not lend any substance to the government’s claim.

The remaining 20% has been taken from the judgments of the Hon’ble Supreme Court of India, reports of the Law Commission of India, international treaties and deliberations across the polity and legal system. There are some positive aspects like introducing community service as a form of punishment under Section 4(f) of the BNS and the inception of audio-visual recording of search proceedings under Section 185 of the BNNS.

However, these changes could have been just incorporated into the existing criminal laws by taking refuge to the process of amendments rather than completely expunging the existing laws. There is no doubt in saying with force that these positive changes (except the controversial ones) introduced in the form of amendments would have been approved by the entire legislature in one go. 

What buttresses the above submission is the ongoing Indianization of our existing criminal laws by virtue of the judgments being rendered by Indian courts commencing with the grass-root judiciary till the Hon’ble Apex Court of India. Courts in India have made genuine and mostly successful attempts in interpreting the laws and applying them to cases before it while keeping in active judicial consideration the social-economic demography and cultural polity of our country.

This I believe has obliterated the colonial colour and embedded the “Indianness” in the IPC, Cr.P.C and IEA. One of the most appropriate examples is the decriminalisation of adultery by the Hon’ble Supreme Court of India in the case of Joseph Shine in 2018. The esteemed court while striking down the provision concerning adultery in the IPC as unconstitutional held that India recognises both men and women on an equal pedestal and treating the lady as a man’s chattel is an alien concept to us whose application in our nation is wanton, colonial and degenerating our traditions. 

There is yet another significant reason that demolishes the government’s rant of Indianizing our criminal justice machinery system. Borrowing from what Professor Anup Surendranath said, the meaning of colonial is to be understood in the context of the relationship between the criminal law and the common man. These news laws, as we will deliberate in the following sections of this article, give greater powers to the police and tend to jeopardise civil liberties. When civil liberties are compromised, the essence which remains and one feels to be is that of colonialism and unconstitutionality. 

Now let us devote some attention towards some of the new provisions of the not-in-force laws which prima-facie are indicative of arbitrariness, mischief and lack of legal reasoning.

-At first is Section 187 of the Bharatiya Nagarik Suraksha Sanhita which replaces Section 167 of the Code of Criminal Procedure 1973. The Cr.P.C limits police custody of the accused to the first 15 days from the date of detention authorised by the magistrate.

In the BNSS the incorporation of the words “whole or in parts” clearly spell out that police remand can be granted by the magistrate upon the prosecution’s request any-time during the initial 40 or 60 days of the 60 or 90-days period of judicial custody. This means that in practice, bail can be denied for the entire period if the 15 days police custody period is not complete. Another implication of this provision is that it also tends to increase the chances of the accused’s being man-handled by the police at more than one instances. 

-The second disturbing feature is the offence of terrorism which occupies space in our general criminal law in the form of Section 111 of the BNS. It is germane to state here that the offence of terrorism is squarely and comprehensively covered by the Unlawful Activities Prevention Act of 1967. Criminalising the same set of actions which constitute the same offence (having same ingredients) by two different laws is rarely known to the science of jurisprudence.

In addition, there is the broad usage of words in the definition of terrorism as available in the BNS. The words “disturb public order” glaringly widen the application of terrorism to situations like riots, protests which turn violent or instances where peace in the society may lose its equilibrium due to resistance or demonstrations.

In this regard, it may be noted that criminal law drafted with astuteness and as developed by courts around the world distinguishes terrorism (which probably occupies the first position in the ladder of severity of offences) and offences striking versus public tranquillity.

To buttress the reader’s understanding, the author gives the example of murder and culpable homicide. Both these offences concern the death of an individual however depending on severity and other differentia, are treated in jurisprudence as two distinct crimes with separate punishments. 

For the purposes of keeping this written piece short, the author will not undertake a further excogitation of the remaining provisions which are arbitrary and instead now move towards the next segment of the article. 

The author vehemently contends that the Indian government has missed the golden opportunity of “real transformation” of our criminal justice system in letter and spirit. To support this, the author takes recourse to three examples- the forensics, the police and the learned courts. 

 While the new law mandates the incorporation of forensic science in investigation of crimes punishable with imprisonment of 7 years and more, the overall forensic infrastructure in our country is beleaguered. A report by Project 39A of the National Law University of Delhi has highlighted the yawning loopholes which exist in our forensics set up when it comes to existing forensic educational institutions, funding, understaffed forensic labs sans modern equipment and delay in giving opinions which are vital for adjudication by courts. 

The second example is that of the Indian-driven but colonial-engine police system in Bharat. The khaki dress and the emblem are Indian, however, the mindset with which our police across domestic jurisdiction operate is foreign. Manifestations of the same can be seen in instances of the police refusing to register FIR and insisting on inquiry in case of cognizable offence when the accused is an influential person, false implication of innocent individuals and custodial deaths.

Another critical deficiency in the police ecosystem of our country is the understaffed police stations with a lack of access to modern technology.

Thirdly, despite the Hon’ble Apex Court’s suggestion in 2014 to create two wings within the state police relating to public order and investigation, our political servants have failed to initiate action in this respect. 

The government which is aiming to make India, “Viksit Bharat” by 2047 has completely ignored the requirement of urgent court infrastructure upgradation on metrics of ease of accessibility to the public inclusive of disabled, facilities for new members of the bar and stakeholders -judges; court staff and practising lawyers, green spaces and hygiene.

A mere site inspection of the CGIT-Labour Court in Sector 18 Chandigarh and local courts in Dera Bassi Punjab will reveal the exhausted state of court infrastructure. The same is true if you traverse to any local court in a Tier III city or local village in India. Moreover, another problem facing our judicial mechanism is the lack of competent judges and high case pendency with numbers running into lakhs in each state. 

Viewed comprehensively on a larger scale, this government has failed substantially to amend, revamp and uplift India’s criminal justice machinery in lines with its own stated ambition of making India more Bharat.

To elucidate the concluding remarks, the author states that recodification of text of the laws alone bereft the reconstruction and upgradation of the criminal justice institutions (the police, the respected courts and the forensic facilities) is not transformation, but signifies specious change. The real opportunity is missed and the precedent remains unchanged.

The article is authored by Advocate Siddharth Arora, he works at Law offices of Bhullar & Arora.