By Yasir Saeed Alvi

ABSTRACT

The overhaul of India’s criminal justice system through the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam has been criticized for failing to achieve ‘decoloniality’. Despite claims of indigenization and democratization of the criminal justice system, these new laws either retain most of colonial-era provisions or make them more terrorizing than ever before, signaling towards a troubling continuity of oppressive practices. Additionally, the new laws leave critical gaps unfilled allowing vulnerable populations to live without legal protections. This analysis highlights the continued need for comprehensive reform and not repetition to ensure that the criminal justice system respects and upholds constitutional values and liberties.

INTRODUCTION 

The fundamental understanding with which the new criminal laws were brought in was to overhaul and supposedly indigenise the criminal justice system of the country. However, this claim of indigenisation doesn’t really sit well with the fact that at least 95 percent of the old colonial era laws have been retained in what is now the The Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam. Senior Advocate Kapil Sibal in an interview for The Wire called this a ‘hangover of the colonial era’ which is a rather precise way to put it owing to the fact that it defeats the very purpose to just retain the old oppressive system in the garb of a new one. To decolonize the law is to change the way the law interacts with the citizens and their rights, if the state continues to deal with its citizens with brute force and intimidation there has been no decolonization at all. Rather, this seems to be quite a tribute to Lord Macaulay to retain most of his repressive abstraction. 

What a democratic republic would have expected from new criminal codes would have been a flow of trust and humility from the state for its citizens who now live in a land which is free. There is no doubt about the fact that the old laws were draconian, obsolete, and meant to rule with an iron fist however, the new ones in a lot of mannerisms are far worse and we shall see how. The criteria to test any law or policy is to see how well it tackles the issue at hand and how, despite that, it upholds the constitutional tenets enshrined in Article 21 of the Constitution of India. The dangerous nature of the new laws are reflected in various portions of the codes:

EXTENDED CUSTODY AND EROSION OF PROTECTIONS

The most glaring issue with the change in criminal procedure is how Section 167 of the CrPC which provided for police custody for up to 15 days has been replaced by Section 187 of the BNSS which permits police custody for up to 90 days. This is a frightening increase in the period of police custody or lockup which is, in the words of Senior Human Rights Advocate Colin Gonsalves, ‘a place of terror’. 

Under the CrPC, it was explicitly provided that if the accused needs to be kept under custody beyond the provided 15 days, a magistrate may prescribe further custody “otherwise than in the custody of police”. Meaning thereby, that the accused be removed from police custody and be put under judicial custody after 15 days. Unfortunately, the subsequent provision in the new BNSS has omitted these crucial words thereby removing a pivotal safeguard.  

There is no shying away from the fact that custodial torture at the hands of the police in India has been a normal for decades, time and again the Supreme Court of India has raised alarm regarding the matter. In the celebrated decision of DK Basu v. State of West Bengal and various reiterations of this decision the court has said that its guidelines “seem(s) to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody” of the police. In lockups torture happens on a routine basis and now it can continue happening up till 90 days. This shall, no doubt, have a disastrous impact on political dissenters, social activists and marginalized communities like Muslims and Dalits who are evidently more vulnerable. It is as if even the British understood how terrifying police custody can be and that is why they kept the number of days at 15, however we made it more dangerous.

THE HORRIFYING REBIRTH OF SEDITION

When the bills were tabled in the parliament, it was stated by the Minister of Home Affairs that the bill does not contain a provision against sedition anymore. Which is true, it really does not. It is just that a provision which is far more concerning with a much wider ambit and a different name has been introduced as Section 152 of BNS. The reason why I call this a rebirth of sedition is founded in the very fundamental understanding of what sedition is. Black’s Law Dictionary deduces sedition as the prosecution of speech which is the very basis of sedition. The very language of BNS Section 152, utilizes the same phraseology as the earlier law on sedition, IPC Section 124A “Whoever, … by words, either spoken or written …”. From this it is clear that this section speaks of sedition but just doesn’t call it that.

It was rather misleading how it was publicized that sedition has left for good when it really has come back ten-times stronger and scarier. However, interestingly this new section has been given a much wider scope by the legislature by incorporating the following portions:

“Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”

The explicit mention of these words is no doubt alarming, however, what is more concerning is the vagueness of its language. The weighty terminology utilized in this section has not been defined anywhere in the act creating space for easy misuse of authority in the garb of interpretation. The great thing about the old criminal laws was that the courts of this country had given meaning to most of the statutory language in its actual context over the decades, thus clearly defining the scope of sensitive words hence, preventing abuse of power. That safeguard is absent in the case of the new laws which have used extremely sensitive vocabulary without defining it in the context of criminal jurisprudence.

SHIFT TOWARDS EXCESSIVE POLICE DISCRETION 

Registration of a First Information Report was made to be mandatory in cognizable cases by the Constitutional Bench of the Supreme Court in the Lalita Kumari case where on the pretext of conducting a preliminary inquiry, the police used to skip filing an FIR. However, in absolute contravention of the view taken by the Apex court, the legislature has left it at the discretion of the police whether or not to register an FIR for offenses where the punishment ranges from 3-7 years. This will have a disastrous impact on the underprivileged sections of the Indian society, for whom it has always been a challenge to get an FIR registered, especially if it is against a person who is privileged. In the case of Praveen Kumar v. State of GNCT of Delhi (2020) CRL.M.A. 2660-61/2020 the victim, a Dalit person had been abused, publically humiliated and harassed while derogatory casteist slurs were hurled at him. The victim fearing his life approached the Fatehpur Beri police station with his complaint where the police personnel outrightly denied registering his complaint against the accused, a socio-politically privileged elite member of the society. This is one of the many cases that highlight the apathy of police prejudice against marginalized groups and their never ending favors to the privileged classes. In light of this situation, to provide the police with a further discretion in filing FIRs is a shocking development.

CRITICAL INADEQUACIES IN THE LAWS

The question whether the state can compel a woman to have sexual intercourse with her husband against her will has long been discussed among legal scholars and jurists. It is rather absurd that, to give consent to marry should also mean consenting to sexual intercourse. How does it logically follow that if I consent to marry, the law expects it to be a blanket consent for the other things that may follow? To not acknowledge marital rape is to deny a married woman of her bodily autonomy, an inherent right under Article 21 of the Constitution of India. As per the National Family Health Survey 1 in 3 women in India aged 18-49 experience spousal violence, with at least 5%-6% of the women reporting sexual violence. Unfortunately, the legislature in its wisdom failed to understand the importance of outlawing marital rape in the new criminal laws. 

One other major inadequacy of the new laws is the absence of a provision punishing sexual misconduct against male-bodied persons. From July 1, 2024 onwards a sexual offense against a male bodied person is no longer a crime in our country. Male victims of sexual violence are usually taken lightly, especially by the law enforcement agencies, and now since Section 377 cannot be utilised anymore, there are no safeguards available to such persons including transgender and intersex people. This development is all the more concerning because this leaves no remedy for queer persons who often face sexual abuse and violence every other day. The lacuna created desperately requires to be filled and a legal remedy equivalent to that in Section 377 IPC be reintroduced in the criminal justice system to ensure that perpetrators of sexual violence do not go unpunished. 

CONCLUSION

Despite the overhaul’s promise of modernizing the legal framework, this change retains the essence of imperial subjugation and a mistrust between the state and its citizens. These shortcomings reflect a missed opportunity to align the criminal justice system with constitutional values and human rights. For genuine reform, it is crucial that future amendments prioritize safeguarding individual liberty and ensuring accountability, moving beyond mere legislative changes to foster a humane criminal justice system.

About the author:

Yasir Saeed Alvi, is a Political Science Major from University of Delhi and is reading law at Jindal Global Law School, O.P. Jindal Global University, India. His interest areas consist of Criminal Jurisprudence, Law and Marginalisation, Real Estate Law, Constitutional Law and Gender Studies. 

Image source: https://kpmg.com/in/en/home/insights/2024/03/three-new-criminal-laws.html