‘Justice and Punishment’

Concerns are mounting as India replaces colonial-era laws with new criminal codes. The new laws are likely to throw the age-old criminal justice system into total disarray. The Bharatiya Nyaya Sanhita, 2023 has replaced the Indian Penal Code, 1860; the Bharatiya Sakshya Adhiniyam, 2023 replaces the Indian Evidence Act, 1872; and the Bharatiya Nagarik Suraksha Sanhita, 2023 has been implemented in place of the Code of Criminal Procedure, 1882.

The new laws were approved by parliament in December 2023 during Modi’s previous term, with the government saying they aim to “give justice, not punishment”. It says they were needed as colonial laws had been at the core of the criminal justice system for more than a century.

Among the key changes is the replacement of the sedition law frequently used as a tool of suppression, after its enactment under British colonial rule to jail Indian freedom fighters. Kashmiri people know how sedition law is used indiscriminately.

Laws dealing with sexual assault have been strengthened, while a previous law criminalising sodomy has been removed. Other key changes include the amount of time police can hold a suspect rising from 15 days to 60, and, in some special cases, up to 90. One’s chances of getting bail before 60 or 90 days will be remote as new laws are being implemented. The revised laws removing old sedition laws will be more cumbersome and oppressive than ever. Any person talking about federalism may be booked as separatist and tried under the provision of ‘Separatist Activities’. The provisions are scripted to give jail, not bail.

These codes were rolled out without a discussion in the parliament. In truth, it would worsen an already glacially slow pace of justice. There was no debate in parliament before passing the crucial laws. The bills were never sent to a Parliamentary Standing Committee for review but were submitted as a supplementary agenda item and passed when 146 members were absent due to their suspension by the speaker.

For one thing, the new laws will give power to the police to decide on a case when previously it was up to the judge to decide if a case could proceed to trial. For offenses that award imprisonment from three to seven years, it would be at the discretion of the police completely whether to register an FIR or not. Every complaint must be registered as a First Information Report (FIR) as per a Supreme Court order. No, it is no longer necessary under the new legislation. Those who come from the marginalised and economically backward sections of society or live far away in rural areas with little communication will be at the tender mercies of police stations. They are now transferring judicial functions to the police. And they call it modernisation.

India already has a notoriously slow justice system, with millions of cases pending in courts at any time. Experts say the changes could increase the number of cases awaiting trial by 30-40 percent, if not more.

Today, 34 million cases are pending before the courts across the country, and no end in sight. With every passing day, the number is increasing. 1.7 million are in different High courts, and 18,122 cases are in the Supreme Court. The oldest case still pending in the Indian court system goes back 38 years. ‘Justice delayed is justice denied’. However, it has no relevance in the judicial realm of Indian society.

The claim that the changes decolonialise the criminal procedure code is at worst spurious. Change in nomenclature from English to Sanskrit or Hindi doesn’t make it modern or for that more Indian. Under the garb of modernising British-era laws and Indianising them Modi’s Bharatiya Janata Party in reality has made them more draconian. The new laws pose a serious threat to civil liberties and freedom of speech. Surprisingly, political parties, including left parties are not seriously opposing the new ‘Bharatiya Nyaya Sanhita’. They have taken it for granted that Modi’s authoritarianism cannot be challenged on the streets.

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Frontier
Vol 57, No. 5, Jul 28 - Aug 3, 2024