The three criminal law bills passed by the parliament in the winter session, without any debate, with most opposition Members of Parliament under suspension, namely the Bharatiya Nyaya Sanhitha, the Bharatiya Nagarik Suraksha Sanhitha, and the Bharatiya Sakshya Sanhitha, which replace the Indian Penal Code 1860, the Criminal Procedure Code 1898, and the Indian Evidence Act 1872, respectively, contrary to claims by the Union Government, are nothing but sugar-coated bitter pills.
The bills, which were notified in the Gazette of India on December 25, 2023, if implemented without major reforms, will adversely affect our fundamental rights guaranteed by the Constitution of India, especially free speech and the right to privacy. With the implementation of the stringent provisions of the bills throughout the country, the state will become unbearably authoritarian, and the country will slip into a permanent state of emergency.
Introducing the bills in Parliament, Home Minister Amit Shah said that criminal justice is a subject in the concurrent list of the Indian Constitution. In this context, the first question that arises is whether states have been consulted about the new bills. It is quite unlikely that the Union Home Ministry has the approval of the states to introduce the present Sanskritised version of the criminal laws. Like in the case of the infamous farm laws, the Union government, in the case of criminal laws, also has shown scant respect for the principle of federalism and the rights of the states.
Home Minister Amit Shah also declared in Parliament that the new criminal laws have been introduced to replace archaic colonial-era laws that have been made to subjugate Indians. The new laws, the Home Minister asserted, aim to deliver speedy justice to the people. However, several human rights activists and lawyers have described the new laws as ten times more draconian than the colonial laws.
Under the Indian Penal Code, any arrested person could be held in police custody for a maximum period of 15 days. Under the Bharatiya Nyaya Sanhitha, detention under police custody has been extended up to 90 days, a six-fold increase, and the Union government claims that it is aimed at providing political, economic, and social justice to the common people! The police, our experience shows, are bound to misuse this clause to harass inconvenient individuals just to teach them a lesson.
The new law, replacing IPC, dispenses with the provision for providing legal aid to everyone from the time of arrest and makes the law-enforcing authorities and the prosecuting authorities extremely powerful. In a country where stories of brutality by the police and even the army are on the increase, arming them with unbridled power can only lead to further misery for the general public.
In the new laws, there is no attempt to improve police accountability. Even today, 75 years since independence, the police and other security forces function under the colonial mindset. And arming the police and the prosecution with more and more power will only lead to heaping further injustices on ordinary people.
The most important reform made in the new laws, the Home Minister claimed, is the repeal of the colonial law on sedition IPC 124A. However, even a very cursory examination of the new law reveals that sedition has been reintroduced with renewed vigour, with vague provisions that will create room for totally arbitrary application.
In the new law, sedition has been replaced with Clause 150 titled "Acts endangering sovereignty, unity and integrity of India." The clause criminalizes acts "endangering the sovereignty, unity and integrity of India," which includes using electronic communication to excite armed rebellion, subversive activities, secession, separatism, or to endanger India's sovereignty, unity, and integrity.
Actions similar to sedition will be penalized with a wider scope and application due to its vagueness, which will have very far-reaching adverse effects on free speech and dissent. What is even more dangerous is that punishment under Clause 150 mandates imprisonment, under all circumstances, unlike Section 124A, under which the penalty was limited to a fine.
One of the worst features of the new law is the inclusion of electronic communication as a means to commit seditious acts.
Now about the logistics for implementing the new laws, there is no clarity. While the Home Minister in the new year declared that the framework for implementing the new laws would be ready in the Union Territories by December 2024, according to Home Ministry officials, the laws will have to be implemented throughout the country, simultaneously.
Further, the legislation will have to be notified separately in Nagaland as Article 371A of the Constitution grants special provisions to the State and tribal areas under the Sixth Schedule of the Constitution in Assam, Meghalaya, Tripura, and Mizoram.
The confusion about the implementation of the laws was highlighted in Delhi, where several magistrates asked the Delhi Police why it was registering cases under the IPC when the new laws were in place. The Delhi Police are only studying the law and have not even started preparing the framework for implementing it.
Through the laws, the Union Government is trying to digitize many aspects of criminal procedure and include digital evidence under the ambit of evidence law without specifying procedural safeguards. In several states, FIRs are registered in the local language, and one fails to understand how they will be made compatible.