New Delhi: Former judges, lawyers and other legal scholars alleged the purpose of the three recently enacted criminal laws is to “stifle dissent”, not replacing colonial-era statutes.
The three notified legislations — the Bharatiya Nyaya Sanhita (BNS), 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and the Bharatiya Sakshya Sanhita (BSS), 2023 — are set to come into effect from July 1 this year. It is aimed at “completely overhauling” the criminal justice system in the country.
The government said the new laws would replace British-era Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act, 1872. The legislation was passed by Parliament on December 21 last year and got the mandatory presidential assent on December 25.
“A recent ruling of the Supreme Court has already diluted bail provisions. What these new laws would do is unknown to me,” said Justice Madan Lukur, ex-apex court judge, while referring to the Gurwinder Singh ruling, wherein a division bench of the top court said that jail term, rather than bail, is standard procedure under the Unlawful Activities (Prevention) Act, 1967 or UAPA.
He was speaking at a conference jointly organised by Campaign for Judicial Accountability and Reforms and Common Cause at India International Centre in New Delhi on February 26.
The audience was alerted by Justice Lokur to the impracticality of implementing Section 258 of the BNSS. According to the clause, judgments must be rendered within 30 days following the end of the proceedings, though this deadline may be extended to 45 days.
Referring to an incident from Uttar Pradesh where there was chaos after the Allahabad High Court directed a subordinate court to decide 14 murder cases in less than a month.
He said as many as 400 appeals were filed before the High Court and it continues even today.
Comparing the amended criminal laws with the existing legislations, which he found “disconcerting”, he pointed out the new set of rules “seek to prolong police custodies of accused” from 15 days to 50 days.
“This period of detention is a torture by virtue of its sheer length,” he opined.
Professor G. Mohan Gopal, who served as the director of the Supreme Court’s National Judicial Academy from 2006 to 2011, spoke briefly about the definition of terrorist acts mentioned in Section 111 of the BNS.
He claimed that while the final text of the BNS made the definition of terrorism equal to Section 15 of the UAPA, the initial draft offered an “open-sky” meaning.
The clause, he said, grants a police officer holding a position equivalent to superintendent the legal authority to determine whether to prosecute an individual suspected of terrorist activity under the UAPA or the BNS.
He also mentioned Section 43(3) of the BNSS that deals with handcuffing. He observed that there has been a recent reversal of two rulings made by Justice V.R. Krishna Iyer. One judgment says bail is not a standard procedure under the UAPA, and the other is about handcuffing.
Using the two rulings as a point of reference, he said that numerous clauses in the three criminal bills show a deliberate assault on Article 19 of the Indian Constitution, specifically on the rights to free expression, association and assembly.
He also pointed out that sedition is still a crime. Only under Section 152 of the BNS (act compromising the sovereignty, unity, and integrity of India) has it become “treason plus [sedition]”.
According to Gopal, the government’s argument that the new laws promise to end colonialism is a “ploy to create Hindu Rashtra (Hindu nation)”. He jokingly said any violence from July 1 onward will be considered “Bharatiya brutality”.
He ended by saying that the new set of legislations are “merely an attempt to stifle criticism and dissent”.
“What we are witnessing is a novel and unparalleled application of criminal law, entirely divorced from the concepts of offense and penalty. Courts will need to apply constitutional law once these statutes are announced,” he concluded.
Senior Supreme Court Advocate Vrinda Grover concentrated on Article 21 of the Constitution, adding that one should not lose sight of the fact that criminal laws have their roots in articles 19 and 21.
Quoting K.G. Kannabiran who authored The Wages of Impunity: Power, Justice, and Human Rights, she said achieving civic liberty involves moving from being a subject to a citizen with rights.
“The new laws have changed us from being subjects to citizens to suspects and supplicants,” said the noted lawyer, claiming that citizens are “no longer entitled to certain rights”.
Highlighting a couple BNSS clauses, she said the word “judicial” has been deleted from Section 196 of the BNSS.
This section empowers a magistrate to look into the circumstances surrounding a person’s death, disappearance or rape of a woman while in police custody.
“The deletion of the term ‘judicial’ has empowered an executive magistrate to carry out the investigation,” she noted.
She said since custodial tortures happen in this country, Section 176(1A) of the CrPC was amended in 2005 to require a judicial magistrate inquiry in these cases.
She pointed out that the Supreme Court’s 2014 ruling in the Public Union for Civil Liberties (PUCL) versus State of Maharashtra that said judicial inquiries into police encounters and extrajudicial murders are required is contravened by the BNSS.
One such incident where a judicial magistrate inquiry is required, Grover said, is the recent death of a farmer in the Haryana Police’s suspected use of force.
Grover also expressed concern about the omission of Section 377 of the IPC, which dealt with unnatural offences. She claimed that no clause in the BNS could address a situation involving non-consensual sexual activity, which is especially troubling for transgender persons who experience severe forms of harassment.
Grover brought attention to the police custody clause, which effectively permits police custody for longer than the first 15 days of remand.
She said that a police officer may seek remand for up to 15 days in order to conduct an investigation, facilitate recovery, etc. under Section 167 of the CrPC. A request for an extension of custody beyond the first 15 days can also be made from the magistrate.
Now, the police may detain a person for up to 15 days under Section 187 of the BNSS. This period can also be extended. For example, if a chargesheet needs to be filed within 90 days for an offense, the police officer may take one into custody at any point during that time.
Grover claimed that this would have a significant impact on bail and the potential for torture during incarceration, which would eventually affect life and liberty.
Finally, she said that several clauses, like the one that penalizes women for choosing to have miscarriages on their own, are still there in the current legislation.
Grover stated it is incorrect to believe that women in India have the freedom to abort because such a procedure is only allowed on the advice of a doctor. She said that women, their bodies and their sexuality are still under state control.
“Patriarchy to paternalism is not something women are seeking,” she concluded.
Dr Anup Surendranath, executive director of the Project 39A (formerly the Centre on the Death Penalty) and an assistant professor at the National Law University, Delhi, challenged the ‘colonial’ justification for “reforming” the current criminal justice system.
He questioned whether the laws’ passage during the colonial era made the legislation colonial.
The debate about colonialism, according to him, went far deeper and concerned the level of accountability the government provided for its people. To support his assertions, he cited a few clauses.
Regarding bail, he explained that Section 436A of the CrPC permits the release of undertrial prisoners on bail once they have served half of their sentence — with the exception of those who have been given the death penalty.
As Surendranath noted, Section 479 of the BNSS no longer applies to people who have been awarded life sentences; and therefore, they are not eligible for bail.
He saw police imprisonment in a different light than Grover did. According to him, police detention is extended by the BNSS for a total of 60 or 90 days.
He cited Section 167 of the CrPC, which says that the court has the authority to grant the accused person’s detention for longer than 15 days “otherwise than in the custody of the police”.
Nevertheless, he said, the phrase “otherwise than in the custody of the police” is absent from Section 187 of the BNSS.
He academician pointed out that it is troublesome because such a vital clause is unclear. He went on to say that this might even be worse than the UAPA, which stipulates that custody may be taken for a maximum of 30 days before the process of extending it must be followed. Here, though, the possible interpretation suggests an extension of police detention to 60 or 90 days.
He also discussed how the BSA relies too much on forensic evidence collection. According to the BSA, forensic evidence is required to be presented for offenses having provisions of a seven-year or longer sentence.
According to Surendranath, the BSA provides states five years to put these rules into effect. According to him, this needs to be compared to the significant sums of money the federal government is investing in national forensic science universities around the nation.
Although the BSA emphasizes forensic evidence, Surendranath clarified that it provides minimal examination of that evidence. It increases the list of government and scientific experts who are not entitled to appear in court.
Furthermore, there is now a wider range of samples that can be gathered, as well as from whom. The current law allows for the collection of voice samples and fingerprints in addition to signatures and handwritings.
Surendranath also brought up the fact that until one of the parties contests it, the court is no longer able to examine the veracity of the expert witnesses.
In the end, he said that the argument of overhauling the criminal justice system is more political than anything else.
Advocate Sarim Naved restated the preceding speakers’ worries and came to the conclusion that the new legislations will cause complete pandemonium.
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