Bobby Kunhu
Colonization is one amongst the convenient pet peeves of Savarnas across ideological spectrum – from communists to Shashi Tharoor to the RSS, despite the fact that they owe their very existence to colonialism and orientalism. Thus the discourse on colonialism in India is not only crude, but non-nuanced, in that it denies the impact of colonialism in ushering South Asia into a modernism that at-least theoretically is oriented around individual rights.
Not even for a moment am I, an apologist for colonialism. Without doubt, the only interest that the colonizer had was her own – and this has led to genocides, ethnocides and famines across non-European lands, disenfranchising and displacing populations. While, most of the privileged among the colonized, mimicked the colonizer and cornered their own benefits from the process, colonization affected the already disenfranchised most adversely.
However, because of the colonizer’s indifference/ignorance of local hegemonies, colonization, also inadvertently threw open vistas of mobility for otherwise socially disadvantaged castes in South Asia. For instance, education, which before the advent of colonialism was the preserve of savarnas, became accessible to shudra and avarna castes socially and politically enabling them. From the Phules to Ambedkar, they were enabled by this inadvertent tryst with modernity.
The criminal justice system designed by Lord Thomas Babington Macaulay was one such inadvertent gift to the emerging modernity of South Asia and criminal justice systems globally. While presenting three bills, viz. Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya (BS) Bill to replace Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and the Indian Evidence Act respectively in the Lok Sabha, Home Minister Amit Shah, as is the wont of the political ideology that he represents, placed some unhistorical facts.
He said; “These three laws were passed by the British Parliament; their central theme was to strengthen and protect colonial rule. Their aim was to punish, not to provide justice”. The fact of the matter is that the Macaulay’s criminal justice system was radical for its time. Apart from replacing divergent criminal laws rooted in religion (and mostly casteist) across India, this system influenced by Benthamite liberalism that was on the rise in Britain, for the first time placed Europeans and Indians on the same footing. Interestingly, while this system would serve as a model for codification of criminal laws in Britain, Macaulay, himself was ostracised by fellow Europeans and it cost him his Indian career.
Without doubt, the law reflected British value systems and (has required) requires changes with time. Post-colonial India, therefore has seen changes in the system through legislative and judicial intervention. Also, criminal law being in List III (Concurrent List) of the seventh schedule of the Constitution of India has seen many amendments at the level of the states. In fact, CrPC was re-enacted in 1973. Again, without doubt, the Indian criminal justice system has consistently failed in justice delivery – not because of enacted laws, but because of implementation, personnel and social psyche.
This does not mean that the substantive parts of criminal laws do not need changes. They do, and have been subject of multiple debates over the course of Indian Republic, some ending in changes in laws and others remaining just debates, but what this essay seeks to address is the politics of the three bills presented before the Parliament on 11th August, 2023 and celebratory misrepresentations by both the Home Minister and vast majority of Indian media reportage.
The obvious rhetorical question that hasn’t been asked is the need for changing the names of IPC, CrPC and Evidence Act into Sanskrit – because that is the most fundamental thing that the three bills do – given that the legal profession and courts have been comfortably using the English version. The answer, of course is in the ideology of the ruling dispensation. As there has been strong political opposition to imposition of Hindi as the Indian lingua franca, this move would come as a brilliant piece of subversion. For the passage of these legislations would require evolution of a new legal language around criminal justice that in the long run, Hindutva would hope, replace English as the official language of the law with financial ramifications as well.
A cursory reading of the three bills (available at the hyperlink given above) will demonstrate that many of the purported changes to the three legislations are cosmetic at best and instead of being an improvement ends up being a vehicle for facilitating a criminal justice discourse that caters to the interests of the ideology of the ruling party. One of the fundamental precepts that guided Macaulay in postulating the Criminal Justice system was the acknowledgement of state power and the relative powerlessness of a person being prosecuted by the state machinery. It is in this context that procedural laws (including evidence) provide safeguards with respect to the accused in any crime. The proposed system seems to subvert the same. It also has to be born in mind that the three bills only seek to replace IPC, CrPC and the Evidence Act respectively and is not an exercising codification of all criminal laws, and the non-obstante clauses in legislations like Unlawful Activities (Prevention) Act (UAPA), Narcotics & Psychotropic Substances (NDPS) etc., would still be in force – the effects of which shall be discussed later.
The 356 sectioned BNS, that repealed 22 sections under IPC and added 8 is being sold by the Union Home Minister and many of the mainstream media as being radical. Emphasis was laid on the repeal of sedition as an offence under Section 124A, IPC. The fact is that the word sedition and disaffection have been replaced by Section 150 with a string of acts by BNS, which not only continues to criminalize criticisms of the government, but also expands the scope of acts that are criminalized in vague language. This can be understood only in the context of the judicial discussions around sedition.
The problem with Section 124A, IPC is that it criminalizes disaffection towards “government”, in effect rendering it open to prosecute criticism against governments and has seen a history of misuse by successive governments. A five judge bench of the Supreme Court upheld the constitutional validity of this provision in Kedar Nath vs. State of Bihar in 1962. However, the provision became cognizable only in 1973. In this context, another challenge was instituted against the aforesaid section in S. G. Vombatkere vs. Union of India, which also asked for a stay on prosecutions under the section till such time that the challenge is disposed. The Solicitor General, while objecting to staying the provision, submitted that the Union Government was in the process of revisiting section 124A and the Court directed that no further cases be registered under the section and all prosecutions to be held in abeyance till such time that the Union formulates the necessary legal remedy.
Section 150 of BNS reads:
“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. Explanation.––Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section.”
And, what the union government has done is replace sedition and disaffection with secession, armed rebellion, subversive activities and most importantly, encouraging feelings of separatist activities, thereby also introducing an element of thought crime. Further, the contentious term “government” isn’t abandoned, equating the government to the country. The minimum term of punishment has also been increased to seven years from three years.
And if this weren’t enough, BNS also has defined “terrorist act” as a separate offence under Section 111, which reads:
(1) A person is said to have committed a terrorist act if he commits any act in India or in any foreign country with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order by doing an act––
(i) using bombs, dynamite or any other explosive substance or inflammable material or firearms or other lethal weapons or poison or noxious gases or other chemicals or any other substance (whether biological or otherwise) hazardous in nature in such a manner so as to create an atmosphere or spread a message of fear, to cause death or serious bodily harm to any person, or endangers a person’s life;
(ii) to cause damage or loss due to damage or destruction of property or disruption of any supplies or services essential to the life of the community, destruction of a Government or public facility, public place or private property;
(iii) to cause extensive interference with, damage or destruction to critical infrastructure;
(iv) to provoke or influence by intimidation the Government or its organisation, in such a manner so as to cause or likely to cause death or injury to any public functionary or any person or an act of detaining any person and threatening to kill or injure such person in order to compel the Government to do or abstain from doing any act, or destabilise or destroy the political, economic, or social structures of the country, or create a public emergency or undermine public safety;
(v) included within the scope of any of the Treaties listed in the Second Schedule to the Unlawful Activities (Prevention) Act, 1967.
(2) Whoever, attempts to commit or commits an offence of terrorist act shall,––
(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life without the benefit of parole, and shall also be liable to fine which shall not be less than rupees ten lakhs;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than rupees five lakhs.
(3) Whoever, conspires, organises or causes to be organised any organisation, association or a group of persons for terrorist acts, or assists, facilitates or otherwise conspires to engage in any act preparatory to any terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than rupees five lakhs.
(4) Any person, who is a member of terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than rupees five lakhs.
(5) Whoever, intentionally harbours or conceals or attempts to harbour or conceal any person who has committed an offence of any terrorist act shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than rupees five lakh:
Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the spouse of the offender.
(6) Whoever, holds any property directly or indirectly, derived or obtained from commission of terrorist act or proceeds of terrorism, or acquired through the terrorist fund, or possesses, provides, collects or uses property or funds or makes available property, funds or financial service or other related services, by any means, to be used, in full or in part to carry out or facilitate the commission of any terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life and shall also be liable to fine which shall not be less than rupees five lakhs and such property shall also be liable for attachment and forfeiture.
Explanation.— For the purposes of this section,––
(a) “terrorist” refers to any person who—
(i) develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives, or releases nuclear, radiological or other dangerous substance, or cause fire, floods or explosions;
(ii) commits, or attempts, or conspires to commit terrorist acts by any means, directly or indirectly;
(iii) participates, as a principal or as an accomplice, in terrorist acts;
(b) the expression “proceeds of terrorism” shall have the same meaning as assigned to it in clause (g) of section 2 of the Unlawful Activities (Prevention) Act, 1967;
(c) “terrorist organisation, association or a group of persons” refers to any entity owned or controlled by any terrorist or group of terrorists that—
(i) commits, or attempts to commit, terrorist acts by any means, directly or
indirectly;—
(ii) participates in acts of terrorism;—
(iii) prepares for terrorism;—
(iv) promotes terrorism;—
(v) organises or directs others to commit terrorism;—
(vi) contributes to the commission of terrorist acts by a group of persons acting with common purpose of furthering the terrorist act where the contribution is made intentionally and with the aim of furthering the terrorist act or with the knowledge of the intention of the group to commit a terrorist act; or
(vii) is otherwise involved in terrorism; or
(viii) any organisation listed in the First Schedule to the Unlawful Activities
(Prevention) Act, 1967 or an organisation operating under the same name as an organisation so listed.
Thereby, officially marrying UAPA with the primary penal code. This essentially means that a person accused of an offence under Section 111, will not have either Constitutional protection or protections under criminal procedure laws under whatever name it goes by, and the executive can/will use the provisions for its own ideological eds. The best example would be the aftermath of the Bhima Koregaon riots in 2018, where the inciters belonging to the organized Hindutva fold remain free, while various actors, with national and international credibility, are suffering imprisonment only because of their vocal criticism against the government – thanks to UAPA.
The next provision that the Home Minister and the media have gone to town about claiming that a new offence criminalizing “mob lynching” has been introduced. What the relevant provision under Section 101(2) of the BNS states is that:
“When a group of five or more persons acting in concert commits murder on theg round of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.“
However, lynching was already defined as an offence of murder with common intention, punishable with death or life imprisonment. BNS includes another lesser punishment of seven years. The problem with lynching wasn’t that an offence did not exist, but the social and political patronage that the lynchers have and that is at the root of the impunity with which lynching is happening with impunity since the present government got elected.
The only significant new provisions that has been included in BNS are defining of organized crime under Section 109 of the BNS, including abettors of a crime from outside India under Section 48 and sexual intercourse using deceitful means under Section 69, while marital rape is not criminalized. Due to paucity of space, I am not engaging in detailed analysis of these provisions.
Apart from sedition discussed above, adultery and unnatural offences has been omitted in BNS. However, both these offences have already been declared unconstitutional by the Supreme Court in Joseph Shine vs. Union of India and Navtej Singh Joharvs. Union of India. But, the humorous irony that caught my eye is the so-called decriminalizing of attempt to suicide. While Section 309 IPC has been omitted, Section 224 has been introduced in BNS criminalizing any attempt to suicide “with the intent to compel or restrain any public servant from discharging his official duty…” – thereby subverting that most celebrated of South Asian modes of protest – fast unto death, pioneered by Mohandas Gandhi!
BNSS, while more or less is a work of plagiarism from the CrPC, featuring majority of the latter’s provisions. Apart from inclusion of videography during seize and seizure, mandatory videography of statement of sexual offences victims and digitization of the complete process of investigation, the few new provisions envisaged blatantly flies against basic tenets of criminal justice jurisprudence, constitutional provisions, principles of natural justice, Supreme Court judgements and international human rights instruments that India is a party to.
To provide a little bit of context, despite Constitutional and statutory protections against executive (police/state) abuses against human liberty and multiple interventions by the Supreme Court, the most notable – the judgement in D. K. Basu vs. State of West Bengal, which set out guidelines on arrest and custody– it is even celebrated that most police stations flout the law. Facilitating impunity in an already floundering system, Section 172 of BNSS gives unbridled power to the police under the guise of preventive detention shifting the entire constitutional basis of Indian criminal jurisprudence, placing the individual totally at the mercy of the discretion of a police department, whose largely insensitive personnel doing their jobs, mostly don’t have a clue regarding sensitivities that inform the Constitution of India. In a country, where mistreatment and torture of people in conflict with criminal law is normalized, BNSS, under Section 43(3) gives the police wide discretionary powers to use handcuffs, which were expressly regulated by the Supreme Court.
Section 167(2)(a) of the CrPC clearly posits that if an accused has to be remanded to custody for more than 15 days, it has to be to an agency other than the police. This follows common sense, given that the accused, who is innocent unless proven guilty is protected and there is no need to allow an individual in police custody endlessly. However, S.187(3) of BNSS does away with the proviso, allowing accused to be held under police remand for extended periods. Section 356 of BNSS allows in-absentia trial of accused. This provision goes against the sacrosanct criminal law position of innocent until proven guilty. What an in-absentia trial would do is determine a person’s guilt without giving her a chance to be heard, especially in a system where such disappearances are very often engineered. Fair trial is the corner stone of any state that claims modernity/democracy. This provision is not only in violation of Article 21 of the Constitution of India, but also repugnant to the very idea of justice.
BS also follows the same trajectory as the other two legislations inasmuch as it carries forward most of the provisions of the Evidence Act and some of the changes participate in the general direction of undermining established criminal justice jurisprudence. Criminal justice systems have a healthy suspicion of confessions, why the Evidence Act expressly makes confessions through inducement, threat or promise as irrelevant. However, proviso to Section 22 of BS lays down a list of exceptions including if the accused isn’t informed of his right against self-incrimination, which is a Constitutional guarantee under Art 20(3). Since it would be too technical for a lay populace for whom this essay is intended, I desist from doing an in depth analysis of this legislation.
More than any lacunae in criminal laws, the problem with criminal justice administration is in the execution of the law. One of the regular problems – due to which proper evidence isn’t collated, resulting both in acquittals and wrongful convictions – is the illegal use of force/inducements. While video documentation of victims is laudable, criminal justice system in India would get a credibility boost, if police interrogations are also video documented. It should be remembered that many countries have body cameras for police personnel. Transparent policing would be more effective in curbing crime rather than draconian liberty curtailing measures.
The question that arises is the need for these legislations at this juncture. The answer lies in the ideological roots of the main political party that is in the helm of the government. Apart from propaganda for the general elections in 2024, the renaming of criminal law in the extinct language of Sanskrit is central to the Hindutva project of purity. It needs to be remembered that Sanskrit was and continues to be a language of the elite and the names clearly point to the ideological aspiration of Hindutva. In the context of DMK’s protest on the presumption that the three codes were named in Hindi, it was the Home Minister that went on record to say that the names were Sanskrit. Sanskrit, however sacrosanct the Hindutva family might consider it, enjoys only the status of one among 22 languages contained in Schedule 8 of the Constitution of India. Further, the names are in violation of Art. 348 of the Constitution of India, which clearly states that English would be the language to be used in the High Courts, Supreme Court, Acts and Bills.
The more dangerous aspect of these bills are the provisions that corrode universally recognized criminal justice values that would medievalize Indian justice. It should be remembered that before the arrival of Macaulay, criminal justice was dispensed locally according to caste or hegemonic rules. These provisions only help to create a centralized criminal law dispensation that abrogates Constitutional ethos. Interestingly, there were no open discussions on these bills that would have allowed day to day stakeholders in criminal justice system to contribute to necessary changes to criminal law and instead the laws were discussed and drafted by an elite clique. I am afraid that this is an important milestone in the abrogation of fundamental rights guaranteed by the Constitution of India and might actually see the light of the day in the face of lack of discussions and whimpering opposition.
“And to say that society ought to be governed by the opinion of the wisest and the best, though true, is useless. Whose opinion is to decide who are the wisest and the best?” – Thomas Babington Macaulay
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Bobby Kunhu is a lawyer, researcher and writer.
Image: artwork by Kuffir.
