It is worth examining whether the premise — the processes and their ultimate objectives — are what they claim to be.
The mega-legislations have scarcely been debated – much less opposed – in the public domain is a telling commentary on the state of legal understanding about the rule of law that will impact hundreds of millions of lives. (Representative image/iStock)
To ‘change’ a 165-year-old law, applied for over a century-and-a-half by thousands of judges — from the subordinate judiciary to the Supreme Court — and assisted by over 15 lakh lawyers, is a project that requires intense research and public discourse.
The central government’s move to overhaul the country’s criminal justice system is aimed, ostensibly, at taking the law out of its colonial mindset, where handing out punishment, rather than providing justice, was the driving aim of India’s British rulers.
It is worth examining whether the premise — the processes and their ultimate objectives — are what they claim to be.
Home Minister Amit Shah, on 11 August, at the fag end of Parliament’s monsoon session 2023, introduced three new bills in the Lok Sabha to replace the Indian Penal Code (IPC), the Evidence Act of 1872 and the Code of Criminal Procedure 1973. The move was to simplify procedures, make the laws relevant to the contemporary situation and provide speedy justice.
Starting Monday, 1 July, the new acts, the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA), will come into force.
Activist lawyer Prashant Bhushan tweeted: “3 hugely important laws which will affect all of us, are introduced at the end of this session, without any disclosure or discussion. The colonial wolf of sedition brought back in sheep’s clothing.’’
There was no discussion on the bills in Parliament. As experts have pointed out, these bills, passed in undue haste after suspending a record 146 MPs, lack rigorous legislative scrutiny and informed debate, particularly in this newly constituted Lok Sabha and Rajya Sabha.
This should be considered fundamental to ensure that the laws reflect the will of Indians through the informed participation of its public representatives.
To be sure, the bills were referred to the Parliamentary Standing Committee on Home Affairs. However, sensitive subjects such as these were not open to dissenting views of many distinguished members of the committee as much as they should. If they were, the kind of weightage required for such legal enactment was not accorded.
That these mega-legislations have scarcely been debated – much less opposed – in the public domain is a telling commentary on the state of legal understanding about the rule of law that is going to impact hundreds of millions of lives directly.
In an advanced democracy, such overweening legislation would have been put to extraordinary public scrutiny, including intense questioning of senior government functionaries associated with formulating and implementing these laws.
Certain questions need to be raised. Under the Bharatiya Nyaya Sanhita or BNS, the most important – some would say dicey – addition, apart from others, is the reintroduction of the sedition law in the current form in the new act under Section 150.
It gives a wide and open description of what is considered activities against the sovereignty, unity and integrity of the nation. This is one law, which is prone to gross misuse by any government, and fears about its implementation are not unfounded.
In both the US and UK, for instance, the law of sedition stands abolished, which was the original inspiration for Indian lawmakers. The predominant argument for its removal has been the protection of freedom of speech. The potential misuse of sedition to further government political agendas also became a factor in abolishing sedition.
The working paper by the UK’s Law Commission noted that a historical examination of the crime of sedition demonstrated that most often, the prosecution had a political motive. In India, its velocity can be quantified.
For the first time, terrorism and terrorist acts have also been considered under the new act. They are regarded as a specific offense.
Another controversial provision is the additional power of attachment given under the new BNS where the investigating agency can attach properties in line with the powers that the Enforcement Directorate now enjoys under the highly contentious Prevention of Money Laundering Act, 2002.
This new version of IPC also provides for a New Balanced form of punishment by way of deterrence and reformation, and by introducing punishment by way of community service.
Interestingly, it also includes ‘mob lynching’ as an offence and now treats it on a par with murder.
The Bharatiya Nagrik Suraksha Sanhita, or BNSS, which replaces the Criminal Procedure Court (CrPC), too, needs a relook. Under the reworked law, more infinite power has been given to the policing system.
Under the old law, registration of FIRs in cognizable offences was one of the first steps, and only a few exceptions were provided for preliminary enquiry before registration of an FIR, like in commercial disputes, matrimonial disputes, etc.
The new law lays down the statutory requirement for the police to conduct a preliminary enquiry first to determine if prima facie cases are made out before registering an FIR.
This pertains to those offenses which under the new penal code are punishable with sentences ranging between three and seven years. Hence offences like criminal breach of trust, cheating, and forging documents may also fall under this category and may now not automatically be eligible to be registered into an FIR.
This additional power with an investigating agency becomes a temptation to misuse power, should it desire to do so, and these days, it very often does.
The Bharatiya Sakshya Adhiniyam or the BSA, the third new legislation, which replaces the Indian Evidence Act, is an attempt to modernise and streamline the court process, the way evidence is led and to also introduce more digital and oral forms of evidence to be included as admissible evidence during court proceedings.
The new act retains many of the provisions of the old Evidence Act but has introduced an improvised and advanced version. Certain definitions like the application of the old act to the entire territory of India have been modified in the new act and the word ‘India’ has been omitted.
This has the effect of giving prominence to digital and other forms of evidence being admitted from outside the country. In addition, the definition of the word ‘document’ has been expanded to include electronically recorded evidence through computer systems, smartphones and other digital devices.
The biggest challenge lies before lawyers, judges and law enforcement agencies. There is bound to be serious confusion with the overlap of old and new laws, and the addition of new offences. The legal system, highly unwieldy to begin with, will keep oscillating between the old and new laws.
For offences committed before 1 July 2024, the earlier IPC and the procedural Laws of CrPC and Evidence Act will apply and trials will continue as such. For offences committed from 1 July 2024, the three new laws will come into force.
That it will take quite a bit of time for the judicial and law enforcing system to get used to this parallel system, is to understate a point.
According to the National Judicial Data Grid, approximately 3.4 crore cases are pending in India’s criminal justice system, already choking the existing infrastructure.
Judges of various courts and the police forces have been provided with mandatory and organized training sessions. However, there have not been any such programmed/mandatory sessions for lawyers, who must ultimately argue their cases.
It does not help that more than 80 percent of the court system in India lacks basic digital infra facilities, which poses a major challenge for implementing the new laws and the proceedings like trial by absentia. So, all in all, a lengthy period of trial and error, hit and run, lies before the country.
(Ranjit Bhushan is a Delhi-based independent journalist and author. Views are personal. Edited by Majnu Babu)
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