On August 11, 2023, Amit Shah introduced three Bills to overhaul the entire criminal justice system claiming that this was to “end all signs of slavery” and that the “soul of the three new laws will be to protect all the rights given to Indian citizens by the constitution, and, their purpose will not be to punish but give justice”.
The Bhartiya Nyaya Sanhita Bill 2023 (referred to as the BNS Bill), the Bharatiya Nagarik Suraksha Sanhita Bill 2023(referred to as the BNSS Bill), and the Bharatiya Sakshya Bill 2023 have been introduced to replace the Indian Penal Code, 1860, the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872 respectively.
Though the existing laws that govern criminal jurisprudence have colonial roots, they have been subsequently amended substantially. It is a fact that criminal law has always been weaponized by the ruling classes in various ways to maintain structures of oppression and to quell dissent of any kind. There is a need for reform in these laws to bring them in line with fundamental principles of civil liberties and Constitutional rights, including reducing pre-trial detention, ensuring the right of bail, among others. However, the proposed Bills fail to address any of these concerns. Instead it largely retains the provisions of the existing law, and the changes it proposes further erode the Constitutional rights, and allow for the formation of a police state.
This erosion is evident right from the initial use of Hindi names for these laws—a conscious effort to advance the ongoing imposition of Hindi across the nation. Contrary to the stated objectives of ensuring citizens' access to justice and upholding their constitutional rights, the Bills seeks to bolster the State's authority. This increase in power is coupled with the introduction of ambiguously defined offenses, which not only possess the potential for misuse but is also contrary to the stated purpose of safeguarding citizens' rights.
Demonstrating its customary disregard for democratic and consultative practices, the Bill has been introduced by the BJP Government without any prior consultation. Shah's pointing to a consultation process that occurred in May 2020 at the height of the Covid pandemic, in this context, rings hollow. The process coincided with the nation grappling with the pandemic's profound impacts and this raises questions about the genuine inclusivity and effectiveness of such a process. Issues also abound with regard to the composition of the committee that was set up, the methods of participation and consultation employed, and the absence of transparency regarding even the adopted methodology.
While Shah has claimed that “18 States, 6 Union Territories, Supreme Court, 16 High Courts have given their suggestions regarding these new laws”, the absence of details about these suggestions, the reasons behind the non-participation of other states and High Courts, and the overall consultation process raises questions about its validity and the existence of a consultative process at all. In fact, the Committee Report and its recommendations themselves have not been made public.
We look now at some of the main changes that these new bills bring in, and the dangers of enacting these changes.
The hypocrisy that underlies the actions of the present regime becomes evident in its treatment of sedition. Grand claims were made by Shah that sedition is being repealed completely and “India is a democracy and everyone has the right to speak”. However, there have been no qualms in restricting the right of speech by introducing a provision that not only mirrors sedition, but also increases the punishment. Section 150, which brings in the idea of "Acts endangering sovereignty unity and integrity of India" penalizes a range of actions including spoken or written words, visual symbols, electronic communication, and the use of financial resources to excite “…secession or armed rebellion or subversive activities; encouraging feelings of separatist activities; endangering sovereignty or unity and integrity of India”. In fact, while sedition only carried penalties of life imprisonment or up to 3 years, Section 150 in the BNS Bill has enhanced the punishment to life imprisonment or imprisonment for up to 7 years.
The BNS Bill introduces new offences of organized crime and terrorist acts. These provisions are characterized by vague and sweeping definitions, raising concerns about potential misuse. Section 109 of BNS defines organised crime as ongoing illegal activities carried out by individuals or groups in a coordinated manner to gain financial or material benefits using violence, threats, intimidation, or other unlawful means. The offences include assisting, conspiring, organizing, facilitating, or engaging in acts preparatory to organized crime – this is extraordinarily vague and is liable to misuse. It also criminalizes being a member of an organized crime syndicate, defined as a group engaged in various criminal activities, leaving enormous room for potential abuse.
Another concerning aspect is the creation of the offense of "Petty Organized Crime," defined as crimes causing general insecurity among citizens, encompassing a range of activities committed by organized criminal groups or gangs. Once again, the broadness of this definition raises concerns over its potential misuse.
The bill also introduces the offense of a "Terrorist Act," with a definition broader than that in the UAPA and including in it acts to threaten the unity, integrity and security of India “by damaging or destroying critical infrastructure, disrupting vital systems” and “by intimidating the government or its organizations, potentially causing death or injury to public officials, compelling government actions, or destabilizing the country's structures”.
When examining the new offenses, it is important to recall the words of K.G. Kannabiran: while the law defines the offense, the state determines the offender. By providing vague and overbroad offences, arbitrariness gets written into the law.
During the Bill's introduction, Shah emphasized the restructuring of Section numbers, where offenses like murder and those against women were positioned after crimes such as treason and robbery and asserted that this arrangement would be revised, prioritizing crimes against women and children in the initial chapter of the new laws. This focus on the sequential order of provisions within the legislation overshadows the more vital aspect—the content of the law itself. This superficial approach persists in the amendments introduced within the law in regard to offences against women. Addressing the matter of sexual violence, a core demand of the women’s movement has been abolishing the exception for marital rape and establishing rape as an offense even within the confines of marriage. However, this alteration has not been enacted. Although the age threshold for this exception has been elevated from 15 to 18 years, aligning it with the standards of the POCSO Act, the fundamental concern surrounding women's autonomy within the institution of marriage remains unacknowledged. The law also introduces capital punishment in case of gang rape of a girl below 18 years. The women’s movement has consistently fought against capital punishment and has asserted that capital punishment does not act as a deterrent.
In ADM Jabalpur v. State of Madhya Pradesh, Justice Khanna observed “the history of personal liberty, we must bear in mind, is largely the history of insistence upon procedure.” With the attack on procedure, what we see is an attack on personal liberty itself.
Increase in period of police custody
In a shocking increase in the police custody permited, the BNNS Bill increases the period of police custody permitted by the CrPC of 15 days to 60 or 90 days, depending on the nature of the offense. Allowing 15 days of police custody itself results in grave dangers to accused persons. The consequences of increasing police custody to 60 or 90 days is extremely grave, and would pose serious dangers to the lives of the accused and their right to a fair trial. The need of the day is to shorten the pre-trial detention period for individuals. It is vital to recognize that the permissible pre-trial detention period in India is already high. However, instead of addressing this concern, the proposed bill has actually provided powers to the magistrate to increase police custody to an unthinkable 60 or 90 days.
Attacking the premise of presumption of innocence and facilitating profiling
In a quintessential embodiment of a police state, the BNNS Bill mandates the "prominent display," both physically in every police station and district headquarters, and digitally, of the name, address of an arrested accused, and the nature of the offense. This provision directly encroaches upon the right to privacy and human dignity, thereby potentially facilitating the profiling and targeting of individuals even before formal convictions are reached.
Continuing the idea of presumption of guilt prior to trial, the Bill provides for a provision for the attachment of property deemed to be the proceeds of a crime, with subsequent distribution to the victims, either before or after the commencement of evidence, without the requirement of a trial. This provision contradicts the fundamental principle of "innocent until proven guilty."
In a direct contradiction to the Supreme Court's stance that finds that public handcuffing violates the right to dignity, the BNSS takes another stride in undermining the rights of accused individuals. It allows for the use of handcuffs during arrests if the person fits the criteria of being a habitual repeat offender, an escapee from custody, or if they stand accused of certain offenses like organized crime or terrorist acts. This provision further erodes the basic right of the accused to maintain their dignity.
Attack on the Right to Free and Fair Trial
Shah, also, spoke about the state-of-the-art technologies having been incorporated in these laws. We must note, however, that this is at the expense of the rights of the accused to a fair trial. Currently, only the physical presence of the accused in court can be substituted by video conferencing. However, the proposed Bill extends this to encompass the entire trial process, including cross-examination, conducted through video conferencing. This represents a direct infringement on the accused's right to mount a proper defence, as the efficacy of defending oneself would be significantly compromised in a virtual environment.
This assault on the right to a fair trial is furthered by the introduction of the concept of a waiver of the right of trial. The BNSS proposes that the cases where an individual declared as a proclaimed offender has fled to evade trial, the right to a fair trial is deemed to have been waived. Consequently, the Court is empowered to carry on with the trial as though the individual were physically present, effectively undermining the fundamental principles of the right to be heard.
In a covert manoeuvre, the authority of the District Magistrate, previously vested under Section 144A of the CrPC to prohibit the carrying of arms during processions, mass drills, or mass training for the preservation of public peace, has been rescinded. The recent years have witnessed a surge in the display of arms and mass drills by Hindutva extremist organizations, which was curtailed through the utilization of this power - a power that has now been revoked. The underlying implication of this change is evident: to facilitate the continued use of such displays.
Civil Rights activists fighting for reform in criminal law have been demanding reform of various aspects of criminal law. This includes the repeal of draconian laws including the Unlawful Activities Prevention Act, the National Investigation Agency Act and other such “exceptional” laws. Other demands including reduction of police and judicial custody and the right to bail and addressing the concerns on the overcrowding of prisons.
These proposed Bills however, do not address any of these concerns, least of all notions of justice or Constitutional rights, as claimed. Instead, it seeks to make the law more draconian, allow for the creation of a police state and the erosion of the right to a fair trial.