The panel has submitted its report to Chief Minister Siddaramaiah, who will forward it to the Union government.
Court - Representational Pic
An expert committee constituted by the Karnataka government has said the three major proposed Central Criminal Bills — the Bharatiya Nyaya Sanhita Bill, 2023; the Bharatiya Nagarik Suraksha Sanhita Bill, 2023; and the Bharatiya Sakshya Bill, 2023 — meant to revamp the existing laws, are mere eyewash.
The committee, headed by Karnataka’s Minister for Law, Parliamentary Affairs, and Legislation HK Patil, opined that the proposed revamp involved changing the names of the legislation and altering the sequence of various sections/clauses without any substance or substantial purpose.
The expert panel made the observations in its report submitted to Chief Minister Siddaramaiah last month.
The Union government introduced the Bills in the Lok Sabha on 11 August to repeal and replace the existing Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act.
“Criminal laws directly impact personal liberties and fundamental rights. The task of their reform cannot be performed lightly. The changes brought in through the new Bills are not massive or largescale and when they retain about 80 percent of the existing provisions, is there any honest necessity for new legislation instead of amending the existing law,” the report questioned.
“It is also to be kept in mind that no law can be dubbed to be derogatory as ‘colonial’ just because it was passed during such a period. Also, this is a fact that the CrPC was enacted in 1973 and hence cannot be covered up with that category,” the panel opined.
The report concluded that no country, region, or language can claim ownership of various principles and concepts of law. They are universal and can be adopted in toto or with suitable amendments.
“The law can never be static or rigid, it needs changes constantly. Every law must be an eye-opener, not an eyewash. Changes are necessary, but they should be justified on principles of legislative necessity, expediency, propriety, and democratic due process,” the report highlighted.
Minister Patil told South First that Chief Minister Siddaramaiah directed him around one-and-a-half months ago to constitute an expert committee to study and review the proposed Central Criminal Bills.
“I constituted a committee of 11 members under my chairmanship,” he said.
The first part of the report referred to Article 348 of the Constitution, which mandates all Acts passed by Parliament or the legislative Assemblies should be in English.
“The language to be used in the Supreme Court and high courts and Acts and Bills is supposed to be in English. And now, how can one fit in words like Nyaya, Sanhita, Nagarik, Suraksha, and Sakshya into the Act when these words are not English,” the report questioned.
Referring to the three Bills, the committee suggested that the words Nyaya, Sanhita, Nagarik, Suraksha, and Sakshya be replaced with corresponding English words.
For instance, the panel suggested the Bharatiya Nyaya Sanhita Bill be changed to the Bharat Penal Code, 2023. Likewise, it recommended changing the Bharatiya Nagarik Suraksha Sanhita Bill to either the Bharat Criminal Procedure Code or the Bharat Criminal Procedure Act.
Though the Bill is titled Bharatiya Nyaya Sanhita Bill, the committee found the repeated of use of “India” in all sections. For instance, Section 1 of the Bill has used “India” 16 times, the committee pointed out and recommended replacing “India” with “Bharat”.
While the Indian Penal Code, 1860, has 511 sections, the Bharatiya Nyaya Sanhita Bill has about 356 sections with no change in 204 sections, minor changes in 139 sections, 13 additional sections, and 16 deletions, the panel noted.
Coming to community service as punishment, the new Bill misses out on defining what constitutes community service. With India being a secular country with people from various religions, castes, creeds, and cultures, the term community service should be defined.
Otherwise, it would amount to providing a blanket power to the law enforcement agencies, and may cause damage to the inner feelings, personal reputation, and social status of a person against whom the punishment of community service is imposed.
In the absence of such a clear definition, the possibility of controversies arising over sentencing cannot be overlooked, the report suggested.
In Bharatiya Nyaya Sanhita 2023, a new clause 150-A has been suggested to be included to criminalise insults to the National Flag, National Anthem, and the Father of the Nation.
Whereas there is no specific provision in the Indian Penal Code (IPC) to punish a person who insults the National Flag, National Emblem, and the Father of the Nation.
Section 150-A states: “Whoever by words, either spoken or written or by signs or by visible representation makes or publishes any statement insulting the National Flag, National Anthem, and Father of the Nation Mahatma Gandhi shall be punished with imprisonment which may extend to five years and shall also be liable to fine.”
The report gave an example: If a person makes a statement that “It is good that Gandhiji was killed, and if I were to be his contemporary, I would have taken a chance to kill him,” the person has now committed an offence under Section 150-A.
The committee found that the Bharatiya Nyaya Sanhita Bill does not sufficiently address crimes in the virtual space. The approach that the new Bill takes for preventing white-collar crimes and transnational crimes is not satisfactory.
The Bill falls short of achieving the avowed object of providing stringent provisions to address the offences of organised crimes, terrorist activities, and offences of acts of secession, armed rebellion, subversive activities, separatist activities or activities endangering sovereignty or unity and integrity of the nation.
Many activities endanger the national interest, and they go to the extent of sabotaging the strategic activities of the state. This Bill being the major criminal law should include cybercrimes, hacking, economic offences, spying of nuclear secrets, stashing of currency, deposits in tax haven states, digital sabotage, etc, the committee noted.
The Bharatiya Nagarik Suraksha Sanhita Bill, 2023, has 533 sections, while the Code of Criminal Procedure (CrPC), 1973 has 484 sections. In the new Bill, 12 clauses have been added, 12 clauses have been deleted and 111 modifications have been made, the study found.
The expert committee sought deletion of Clause 107 in the Bill on the attachment, forfeiture or restoration of property by law enforcement agencies.
The committee found the intention for introducing the clause unclear. On reading the clause, it is observed that attachment, forfeiture or restoration of property — if the court finds the attached/seized property to be proceeds of crime, the court will order the district magistrate to rate-ably distribute the proceeds to the affected victims.
Regular trials in the case may not take place simultaneously. If at conclusion of the trial, the accused is acquitted, it would be difficult to recover the proceeds which are already distributed.
Clause 187 of the Bharatiya Nagarik Suraksha Sanhita deals with the “procedure when investigation cannot be completed in 24 hours”. The committee observed that the detention of an accused in police custody can only be 15 days. The clause is unclear about the custody, the panel found.
The expert committee concurred that many provisions in the Code of Criminal Procedure Act have already been amended by different state governments over the years. With the Acts being renamed and sections being re-numbered all the enactments have to be re-enacted by the states if they want them to be in force.
While the Indian Evidence Act has around 167 sections, the new Bharatiya Sakshya Bill has 170 clauses. No change has been made to 146 clauses, while minor changes have been made to 35 clauses. Two clauses were added while five were deleted.
The expert committee concluded that the sequencing of various sections/clauses in all three Bills is entirely different and radically changed without any substance or substantial purpose.
The nomenclature and numbering of the sections is very vital for any prevalent law. For the people at large and especially for the practitioners of law, this creates unnecessary confusion. “Hence, it is strongly proposed that the numbering of sections/clauses in the three proposed Bills need to be retained wherever possible,” the report said.
The expert committee comprised both serving and retired government officials, a former judge of the high court, former DGP, and legal experts.
Besides Minister Patil, the committee had as its members Justice (Retd) PN Desai, former judge, High Court of Karnataka; Prabhavati M Hiremath, Principal Secretary, Parliamentary Affairs and Legislation Department; Sridhar G, Secretary, Parliamentary Affairs and Legislation Department; HK Jagadeesh, Special Secretary, Law, Justice and Human Rights Department; Sheila BM, Additional Secretary, Law, Justice and Human Rights Department; Chidananada Patil, Retired Professor; Shashikanth Karoshi, Advocate; NS Megharikh former Director General of Police; Professor SV Jogarao from the National Law School of India University (NLSIU), and Mohammed Ismail, former Additional Secretary, Law, Justice and Human Rights Department.
The committee conducted a detailed study of every provision keeping in mind all the aspects, including if the titles of the new Bills would reflect the true object and intent, whether these changes would legally help to strengthen the justice delivery system; or whether some of the new provisions in the new Bills would give scope for abuse rather than use, etc.
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