By Vrinda Bhandari & Natasha Maheshwari
Last month, the government passed three new criminal law code Bills—the Bharatiya Nyaya Sanhita (BNS, or the new Penal Code), the Bharatiya Nagarik Suraksha Sanhita (BNSS, or the new Criminal Procedure Bill), and the Bharatiya Sakshya Act (the new Evidence Bill)—intended to ‘decolonise’ the law and remove the colonial penal philosophy.
Unfortunately, contrary to expectations, these laws fail to align provisions related to crime and punishment with contemporary needs. Instead, both the quick and undemocratic manner in which they were passed as well as their substantive provisions reflect a tale of missed opportunities. The BNS has effectively repurposed and recycled old provisions under a new guise, exacerbating the regressive aspects of certain provisions, and reinforcing the asymmetric power relationship between citizens and the State.
It is worth highlighting the procedural flaws with the passage of the laws that reflect democratic and legislative erosion. First, the laws were drafted by a Reforms Committee that lacked diversity and transparency. It lacked representation from women, Dalits, minorities, LGBTQIA+ persons, persons with disabilities, and so on—persons who are already vulnerable and most bear the brunt of the power of the State or patriarchy. Discussions on honour killing or mob lynching or marital rape would have been more meaningful with their inclusion. Unfortunately, the recommendations of the Committee were not published in the public domain, lending further secrecy to the workings of an already opaque and inaccessible Committee. Even RTI applications filed with the Committee were not entertained.
Second, the laws were reviewed by a Parliamentary Standing Committee that fell short in dedicating the necessary time to review the around 1,062 new provisions across the three laws. The recommendations given consisted primarily of rectification of typographical errors or making preferred language changes and did not substantively engage with some of the substantive criticisms around the provisions.
Third, the Bills were eventually passed by a legislature that was beset by mass suspensions, with more than 95 (out of 142) Opposition MPs being suspended from the House. There was no substantial parliamentary debate that would have either reflected the rationale behind some of the changes or the Opposition to contested provisions.
While the procedure to pass these laws was rushed, we are still left with the question of why there was a need to review and revise the entire criminal code rather than amending certain provisions. This is particularly relevant since the Criminal Procedure Code was actually introduced in 1973, instituting then a major departure from the colonial-era procedural law.
Substantively too, these laws leave a lot to be desired. The new Penal Code, BNS, fortifies the provisions criminalising offences against the State. For instance, the offence of sedition—whose operation has been stayed by the Supreme Court—has been re-introduced in a new form under Section 150 which punishes acts “endangering sovereignty, unity and integrity of India”. Not only will it criminalise acts that were previously classified as seditious, but potentially broadens its scope by encompassing “subversive activities”, that has been left undefined, and could in practice, be used to quell dissent and protests. Interestingly, the punishment for this offence has been enhanced to seven years, as opposed to three years in the IPC for sedition.
The BNS also criminalises the commission of a “terrorist act”, which is a completely new offence that was not present in the old penal code. However, the definition of “terrorist act” is similar to the existing definition under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the current anti-terror law, that remains on the statute books. It is unclear why there are now two provisions that criminalise the same act and what will be the basis on which an officer shall decide whether to register a case under the BNS or the UAPA.
Lastly, while poised to introduce a legal framework attuned to the realities of the 21st century, the BNS rehashes and reinforces mistakes made in the colonial era during the enactment of the IPC in 1860. Most alarmingly it persists in: a) relying on custodial punishment while restricting the application of community service as a reformative form of punishment; b) maintaining the perception of women as chattel by retaining the marital exception; upholding provisions that criminalise actions such as enticing or taking away a married woman for illicit sexual intercourse; and linking assault and harassment of women to notions of ‘modesty’; and (c) failing to achieve gender neutrality by recognising only a man as the perpetrator and a woman as the victim in offences like rape, sexual harassment, and stalking.
While much of the discussion in the public domain has focused around the BNS, it is the procedural law, the BNSS, that will determine the day to day lived reality of persons accused of offences. The BNSS marks a significant change in permitting police custody at any time during the first 40 or 60 days of arrest, rather than the current practice of limiting it to a maximum of the first 15 days of arrest. The law, unfortunately, has not made it clear whether it is doing away with the current limit enshrined in the CrPC of police custody being given for a maximum period of 15 days, after which the accused is transferred to judicial custody. This clarity is essential because in police custody, the accused is under the direct supervision of the police, rather than being in jail, and hence, the threat of unlawful practices being used to extract information increases.
Finally, the BNSS introduces new broad powers of provisional attachment of property, during the pendency of trial, if it is seen as ‘proceeds of crime’. This is a very broad civil forfeiture power and may affect the lives of millions of people who knowingly or unknowingly get entangled in the legal system.
The new laws could have marked a change and led to a more progressive criminal justice system. Unfortunately, this seems to be a case of old wine in a new bottle.
Vrinda Bhandari & Natasha Maheshwari, the authors are advocates practising in Delhi.