Old Wine, New Bottle

For most Indians 2023 was a terrible Year. The problem is that the ensuing year doesn’t seem to be better. On Christmas Day, President Droupadi Murmu signed the three criminal law bills—Bharatiya Nayaya (second) Sanhita, Bharatiya Nagrik (second) Sanhita and Bharatiya Sakshya (second) Sanhita, which will replace the Indian Penal Code (IPC), Criminal Procedure Code (CrPc) and the Indian Evidence Act—into law. The bills were cleared amidst suspension of the 146 opposition members of Parliament. The government purged the two houses of opposition MPs so that there was no voice of dissent that could go on record. Not that the old IPC was humane but it had some ‘democratic rights’ for citizens. And the judiciary had a role to intervene and look into police excesses. These new laws give blanket impunity to the police. Whatever little accountability the police had, all that is gone now; they are free to abuse and misuse the laws. And the ruling parties will always use it to silence the dissenters.

The government is saying they are replacing a colonial law with an Indian one. It’s far from the truth. The Modi government is only playing to the political gallery with an eye to the coming parliamentary polls when Modi will seek the third term. By and large this is an old version of Indian Penal Code 1973 redrafted. In truth there is no decolonisation as claimed by the Home Minister Amit Shah because 90 percent of the old bill is retained in the new law. Nothing is decolonised. It is at worst old wine in new bottle!

The new law—BNS—gives extra-ordinary powers to the police. They are giving them 90 days of PC—police custody—as opposed to 15 days earlier. In other words they have diluted the D K Basu Judgement which provided for so many safeguards like everyday medical check- up making sure custodial torture is not happening. It took 15 years before the government made the D K Basu judgement into a law in the form of Section 41A of the CrPc, after the sustained campaign by the human rights bodies across the country. In the judgement the court laid down certain basic requirements to be followed in all cases of arrest or detention to present custodial violence and protect human rights. Earlier, if a prisoner was tortured and brought to court he could speak about his torture to his family or lawyers but now he won’t be able to do that with the video conferencing. Under the current law, legal aid is provided from arrest. In the new law there is no such provision.

In the new law the police can ask for police custody beyond 15 days, from 60 days to 90 days. In other words it will enable police to torture. This is a drastic change to keep the arrested person in detention without trial. Show-casing India as the ‘biggest democracy’ in the world mocks at itself—for all practical purposes it is a police state.

All the legal precedents which were evolved around the IPC for the last 159 years might not hold good now. True, they have removed the word ‘sedition’, but it has really come back in another form. They have added economic security. The focus of BNS echoes that of IPC to punish individuals rather than ensure justice.

The new legislation is neither anti-colonial nor transformative. Many say BNS is ’10 times more draconian’. In the name of decolonisation, the laws with several regressive clauses just confer more arbitrary powers to the state. The police will now have freehand without being questioned to repress citizens, all in the name of national security.

Right now political parties, right and left alike, are more concerned about the suspension of MPs. This radical change in criminal law to make it more authoritarian is not their headache. Much depends on human rights organisations whether they could mobilise public opinion against this legalised fascism. People will have to resist the march of the ‘iron heels’ otherwise the saffron rule will erase whatever little democratic space is still available.


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Vol 56, No. 29, Jan 14 - 20, 2024