Monday, June 30, 2024, marked a transformative shift in the legal landscape in India, overhauling the British-era criminal laws that have existed in the country for a century or more. The ‘Bharatiya Nyaya Sanhita’ replaced the 163-year-old Indian Penal Code (IPC), ‘Bharatiya Nagrik Suraksha Sanhita’ made way for the 126-year-old ‘Criminal Procedure Code’ and the ‘Bharatiya Sakshya Adhiniyam replaced the Indian Evidence Act.’ Together, they are said to have formed the bedrock of the criminal justice system in India. The new law trims the IPC from 511 to 358 sections and adds 20 crimes, significantly changing criminal laws in India.
Although the text of the new laws is still written in English, Hindi advocates would not miss an opportunity to send a message to mostly non-Hindi-speaking South India with any of their latest initiatives. Recently, Central funds were denied to Kerala because it said it could not comply with the Centre’s request to name NHM (National Health Mission) centers in Kerala to ‘Ayushman Arogya Mandirs’ as it is incongruent with the language and culture of the rural population in Kerala. The story is that Kerala finally capitulated to the bullying of Hindi supremacists in Delhi due to the starvation of needed funds. If it had not been for the courage of Tamil Nadu, the country would have been steamrolled over by destroying federalism, the critical concept in running the Indian democracy.
The rewriting of these colonial-era laws cannot resolve the biggest crisis the court system faces in India. Today, 34 million cases are pending before the courts, and no end is in sight. 1.7 million are in the High Courts, and 18,122 cases are in the Supreme Court. Procedural delays, frequent adjournments, cumbersome legal procedures, and delays in submitting evidence are all blamed for the mounting crisis.  The oldest case still pending in the Indian court system goes back 38 years. The adage that ‘justice delayed is justice denied appears to have no relevance in the judicial realm of Indian society.
Instead of helping to fast-track these pending cases and relieve those whose lives may be impacted, since most of them are filed under IPC, this unnecessary overhaul without proper discussions and necessary vetting only adds to the confusion and further delays. The biggest challenge for the system would be to operate in two parallel universes, as all the cases registered before June 30 would come under the old set of laws while the new ones would come under the purview of the newly created rules. All these new provisions may have to be interpreted by the court system, thereby further delaying the process. It should be noted that these bills were never sent to a Parliamentary Standing Committee for review but submitted as a supplementary agenda item and passed when 146 Members of Parliament were absent due to their suspension by the speaker. There were hardly any discussions with the State governments, which are supposed to implement these laws, or consultation with eminent constitutional experts available in the country. Once again, this has shown the arrogance and dictatorial ways the ruling disposition conducts the nation’s business.
Why are the lawyers and Jurists across India quite upset about the implementation of these laws? Apart from relearning the new codes and practicing with two sets of law books, there are also serious concerns about how these would impact the civil liberties of Indian citizens. Mr. Manish Tiwari, a prominent Congress leader and a Supreme Court lawyer, summed up his concerns in the recent podcast with Mr. Sam Pitroda, the Chairman of the Indian Overseas Congress: “When you set a criminal law in motion, it is set in law by the legislation of the First Information Report (FIR). The Supreme Court in India, in the case of Lalithakumari, clearly said every complaint must be registered as a First Information Report. Therefore, they took away the discretion of the police completely as now these laws are going to be implemented in 17000 police stations across the length and breadth of this country; it is important that everyone has access to the first ladder of criminal law, that every complaint is registered as an FIR. However, this new law gives discretion to the police  (section 1733 of BNSS). For offenses that range from three to seven years, it would be at the discretion of the police whether to register an FIR or not. The practical implications of this would be that those who are disempowered,  marginalized, come from the weaker sections of society, or live far away in rural areas where communications today is an effort will be at the tender mercies of the police stations in charge where an inspector of a sub-inspector in charge set the criminal law machine into motion”.
Another big problem with the new law is the duration for which an accused can be held in police custody. The eminent jurist and a former Supreme Court judge, V.R. Krishna Iyer, famously said there would be bail, no jail. As the law stands now, if the police arrest someone, the custody will be a maximum of 15 days simultaneously in one go, and it can go up to 15 days. After that, the person is sent to judicial custody, and your chances of getting bail on the 16th day are eminently high. However, the new law takes custody of a person for 60 days for minor offenses and 90 days for major offenses. Therefore, whenever the bail application is made within 60 or 90 days, the police could say that a person is further wanted for investigation. Consequently, one’s chances of getting bail before 60 or 90 days will be remote as these laws are being implemented.
The handcuffing of the accused is now left to the discretion of the police. The Supreme Court once said that it is an assault on human dignity. There are enough concerns out there that this new provision will be misused against political opponents or civil rights advocates merely for the purpose of humiliating and demeaning them.
The colonial-era sedition laws have always been a concern for human rights activists as even student demonstrators were imprisoned being falsely accused of using those draconian provisions. The revised laws removing sedition are divided into four separate activities, namely: Subversive activities, Separatist activities, Endangering the Unity and Integrity of India, and Armed rebellion. The major problem with these provisions is what truly constitutes a subversive activity! In the past, the law was leisurely used to silence political criticism. Will a public speech from a podium, a debate forum, or a careless forwarding of a social media post constitute the ‘endangering the unity and integrity’ of India?  A person who defends federalism and speaks against the Gujarat-centric rule be considered a separatist? Obviously, these areas are not well defined and may proscribe the fundamental right of free expression of India’s citizenry.
There are also questions by many lawyers as to why the provision of Terrorism has been extrapolated into the general law as there are already existing stringent statutes to deal with it.  India’s “anti-terror act of 1967 requires prior sanction by the government and examination of all evidence by an independent authority to prosecute someone of terrorism charges. The new criminal statutes do not incorporate any such safeguard. The law defines a terrorist as someone who commits any act in India or in any foreign country to threaten the unity, integrity, and security of India with a provision to attach one’s property. Even currency smuggling will be considered a terrorist act.
Mr. Tiwari further said, “If someone says something ironic or makes a joke out of something, it will constitute defamation. Freedom of speech and expression has been tossed out of the window. We must constitute a joint committee of the Parliament with eminent legal minds from all parties to scrutinize each of this bill provision by provision. These laws are pernicious in nature and draconian in their implementation, and they will lay the foundation of a police state in this country and will provide extensive latitude to the police because of the ambiguous nature by which certain provisions are crafted, such as bail laws”.
With the additional provisions for capital punishment, questions are also raised about whether the judicial system is more fixated on retribution rather than reform.  The new laws replacing the old sedition laws appear more oppressive than ever. It seems that the BJP has used the opportunity under the cover of colonial baggage to enact more draconian laws that fit well into the ongoing project of Hindu nationalism. Unless they are reviewed and revised, they may constitute a severe threat to civil liberties and freedom of expression, which may ultimately undermine the democratic and secular values of the nation.
(The author is a former Chief Technology Officer of the United Nations and is Vice Chairman of Indian Overseas Congress USA. He can be reached at gta777@gmail.com)