while introduction After discussing the three new criminal bills in Parliament earlier this month, Union Home Minister Amit Shah promised that the bills would “end three colonial laws” that currently govern India’s criminal justice framework, and provide criminal laws “by Indians for Indians”.
One of the three laws the bills seek to replace, the Criminal Procedure Code, was passed by the Parliament of independent India in 1973.
The other two pieces of legislation – the Indian Penal Code and the Indian Evidence Act – date back to the colonial era, although they have been amended several times by Parliament since India’s independence.
The idea of ostensibly getting rid of India’s colonial past was featured in Prime Minister Narendra Modi’s remarks in his speech. Independence Day address Last year, in a A public event in Assam last Novemberand during Opening New Parliament House in May
However, according to experts, the new bills are neither anti-colonial nor transformative, merely slightly revised versions of existing criminal laws.
Similar in content to current laws
In a social media post, legal academic Professor Tarunab Khaitan said he compared the new bills to the acts they are seeking to replace through the online similarity-scanning service, Turnitin.
According to plagiarism checks, the Bharatiya Nyaya Sanhita Act, 2023, is 83% identical to the Indian Penal Code of 1860. This means that 83% of the text of the bill is the same or similar to it. from the blog.
Similarly, the Bharatiya Nagarik Suraksha Sanhita Act 2023 is 82% identical to the Criminal Procedure Act 1973 and the Bharatiya Sakshya Bill 2023 also bears 82% similarity to the Indian Evidence Act 1872.
Several lawyers and scholars said scroll that the Bills were not a radical break with the past.
With the exception of the BJP Nyaya Sanhita, the bills contain little that is new, said Rebecca M John, a senior lawyer based in Delhi. They do nothing more than “practice housekeeping,” and simplify some provisions in existing laws. For example, all the definitions scattered in different sections of the Indian Penal Code fall under the same clause in the Bharatiya Nyaya Sanhita, she said.
Naveed Mahmud Ahmed, a senior resident fellow on the criminal justice team at the Vidhi Legal Policy Research Center, agrees that the bills do not bring any substantive changes and merely implement a “cleanup” of existing criminal codes.
Ahmed said the only noteworthy changes can be seen in Nyaya Sanhita, which lists organized crime (Section 109), terrorism (Section 111) and sexual intercourse with a woman using deceptive means (Section 69) as offenses in the Penal Code.
Contrary to the claim of Home Minister Shah that a crime discord It was removed from Nyaya Sanhita, and Ahmed indicated that it was kept in Section 150. scroll king to explain Earlier this month, Section 150 was a stricter version of the sedition provision in the Indian Penal Code.
According to Ahmed, Nagrik Suraksha Sanhita is making “ordinary improvements” to the provisions of the Criminal Procedure Code, which are “not significant”. He noted that the use of video conferencing, which the new draft law seeks to bring into the legal field, has already been in use since the judicial system had to adapt to the COVID-19 pandemic.
From his point of view, the only substantial change introduced by this Bill is the imposition of police handcuffs on offenders in certain cases, in Section 43(3).
Mihir Desai, a senior Mumbai-based lawyer, said there is not much difference between the Evidence Act and the Sakshya Bill. The three bills have simply incorporated principles laid out in judicial decisions over the years. “There are some other changes that had to happen,” he said, referring to the provisions on electronic evidence and testimony through video conferencing.
More powers for the police
Far from overhauling the criminal justice system, lawyers say, the bills contain many regressive provisions that give more power to the police at the expense of citizens.
Shahrukh Alam, a lawyer in Delhi, said some rulings suffer from ambiguity and place more discretion in the hands of the executive branch. “The violence of the state is concentrated, and the practices that do happen are formalized,” she said.
It noted, for example, that the provision on handcuffs was inconsistent with the Supreme Court’s ruling Guidelines to the police to arrest, detain and question any person.
Alam added that Section 43 (2) of the Nagrik Suraksha Sanhita Act, which allows a police officer to use “all necessary means” to arrest a person who resists arrest by force, gives the police a broad freedom similar to that of military personnel. under draconian Armed Forces Law (Special Powers)..
Alam also highlighted the recognition of property damage as a form of terrorism under the Nyaya Sanhita Act, describing the clause’s language as “vague” and “extensive”. She said this would allow the government “the primary exercise of power”.
Naveed Mahmud Ahmed said of the terrorism clause: “These provisions should be more specific. I don’t know how the inclusion of UAPA offenses in the penal code helps.” He was referring to the tough Unlawful Activities (Prevention) Act, which is already in place to tackle terrorism.
Mihir Desai questioned the need to include the terrorism clause when the Unlawful Activities (Prevention) Act already exists. “Then get rid of UAPA,” he said.
Desai also warned that Section 481 (2) of the Nagrik Suraksha Sanhita, which states that accused persons may not be released on bail if they are booked in multiple cases, could easily be exploited by the state to keep the accused under trial in jail indefinitely. Bail possibility.
Legal experts also rejected the government’s claim that the bills decolonize India’s criminal justice system.
“As a piece of legislation that seeks to do away with the colonial legacy, the Victorian language is surprising,” said Rebecca John. She gave the example of Sections 86-90 of the Nyaya Sanhita, which dealt with offenses related to causing a miscarriage of a pregnant woman, which still used the old phrase of “a woman ‘quick’ with a child”. “Nobody uses such language anymore in Britain, let alone in India,” she said.
Mihir Desai called the idea of new bills ridding the criminal justice system of colonial elements “nonsense”. “Indian Contract Act, 1872 “It’s also colonial,” he said. “The only question should be whether or not the law serves the purpose of today.”
Shahrukh Alam pointed out that the arrest of the accused by the police at the beginning of the investigation, as is customary in India, is a colonial idea, contrary to the international standard of arrest at the end of the investigation process. She said the bills don’t do anything to change this.
“The new laws will not lead to the decolonization of the criminal justice administration,” said legal academic Arvind Verma. “Colonialism has been created through a centralized administration where officials have no local accountability. For example, complaints against police officers are handled by supervisors who are far from the people. This is not covered by draft criminal laws,” he noted.
Alam criticized the bills for reiterating and re-emphasizing the colonial element in our criminal laws. “The bills do not deal with the colonial frameworks in our criminal laws,” she said. Instead, it only makes them more powerful.
Naveed Mahmud Ahmed said that getting rid of the colonial spirit of the current system requires questioning the purpose of the criminal justice system and limiting the powers of the state.
He said, “When how citizens are monitored is not curtailed, when colonial crimes such as blasphemy and sedition are retained, and when the criminal justice system continues to treat people unnecessarily” under bills, the colonial spirit remains.