Axing Colonial-era Codes is one thing and replacing them with criminal laws that are comprehensive and in line with current international benchmarks for fixing India’s tattered democracy, which is vibrant in form but somewhat denuded in substance, is quite another. Much depends on the fidelity with which the Narendra Modi government goes about the bewilderingly complex task of replacing the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act with three new pieces of legislation viz the Bhartiya Nyaya Sanhita, 2023; Bharatiya Nagarik Suraksha Sanhita, 2023; and Bharatiya Sakshya Bill, 2023 respectively.
Bhartiya Nyaya Sanhita proposes to repeal 22 provisions of IPC, make changes to 175 existing provisions, and introduce eight new sections. It contains a total of 356 provisions. Central to the changes contemplated are the provisions repealing the offence of sedition and the new ones relating to ‘offences against the State’. Section 150 of the Bill deals with "Acts endangering sovereignty unity and integrity of India". Bharatiya Nagarik Suraksha Sanhita proposes repeal of nine provisions of the Code of Criminal Procedure, changes to 160 provisions, and introduces nine new provisions. The Bill contains a total of 533 Sections.
Bharatiya Sakshya Bill proposes to repeal five provisions of the Indian Evidence Act, make changes to 23 provisions, and introduces one new provision. It contains 170 Sections in all. The significant changes that have been proposed include criminalising mob lynching and marrying or having sexual relations with a woman by deception, providing for compulsory video recording of the statements by victims of sexual crimes, setting timelines for filing chargesheets and completing trials, and conducting trials for criminals who are absconding.
Experts who sifted Section 150 of the Bharatiya Nyaya Sanhita, 2023 say the proposed law, while dispensing with the word ‘sedition’, has made it more draconian by making offences under it punishable with imprisonment for life or seven years’ imprisonment along with fine. Section 150 details Acts endangering the sovereignty, unity, and integrity of India. It states: “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 explanation of the section states the following: “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.”
In contrast, the Sedition law (Under 124A IPC) had stated: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in 3[India], shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
In its explanation, the law defined the expression “disaffection” as including disloyalty and all feelings of enmity. The Section also explained that “comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.” It further added that “comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
Experts say the explanation under Section 150 of the new law is “incomplete” and brings into its purview the potential to criminalise protesting any law or any action that the government does not deem fit by using the words ‘subversive activity’, which is a very vague and elastic term.
Notably, in cases of gang-rape, punishment may now include 20-year imprisonment as well as imprisonment for life. In cases involving girls less than 18 years old, provision of capital punishment has been made. There is now a separate category of crime that deals with those marrying or having sexual relations with a woman by deception or wrong credentials.
The introduction of the Bills on the last day of the monsoon session betrays the Centre’s intentions. Concerns have been raised about the nomenclature of the new pieces of legislation in Hindi. This runs counter to Article 348 of the Constitution that says names of Bills & Acts must be in English. The Bills, according to legal luminaries, give room for using draconian police powers for political ends.
Of course, provisions intended to introduce modern methods to bring about ‘transformative change’ in the judicial system are welcome. These include mandatory videography during search and seizure by the police, issuance and execution of summons and warrants electronically and examination of complainants and witnesses using technology for speedy trials. Presently, if a person does not turn up in court, he or she can claim that they did not receive the summons. So, the matter is adjourned for a later date, leading to avoidable delay. Besides, evidence now includes any information given electronically, which would permit the appearance of witnesses, accused, experts and victims through electronic means. There is now a formal provision for ‘Zero FIR’ that will enable citizens to lodge an FIR with any police station, no matter their jurisdiction. Zero FIR must be sent over to the concerned police station having jurisdiction in the alleged crime within 15 days after registration. All told, the Centre must not bulldoze the Bills, but carry them through, in letter and spirit to reform criminal laws, with support from all opposition parties and stakeholders amid pervasive trust deficit.