Criminal law

India’s new criminal law puts symbolism above common sense

If there is one thing the government of India likes to say it stands for, it is “decolonization”. While delivering his annual Independence Day address earlier this week from the walls of Delhi’s historic Red Fort, Prime Minister Narendra Modi spoke of his time in power as a liberation from “a thousand years” of servitude to outside powers, and how he put his feet on the ground. . The foundation for a thousand-year-old state that would “return” India to its past golden age.

Ironically, given the Mughal antecedents of the fort from which he was speaking, Modi’s formulation combined India’s first decades of independence, two hundred years of British rule, and the much longer period that Islam had lived in the country. It carried the tacit implication that India’s Muslims were part of its colonial baggage, no different from the laws and language left behind by the British. It also implies that the governments of India before Modi took power in 2014 were complicit in perpetuating foreign influence through the education system and forms of government. In other words, the current government will be the first in the country’s history to throw off the shackles of colonialism.

This is not just rhetoric. An example of how to put decolonization into practice, with all its flaws, was presented to us on August 11th. And without any consultation – or, indeed, any word that they were working on it – Amit Shah, Modi’s most important boss. His trusted Lieutenant and Home Secretary introduced three new laws in the last hours of the monsoon session of Parliament.

These cute names were given in the complex formal Hindi with a Sanskrit accent favored by India’s ruling elite; It was intended to replace the Three Laws that for more than a century have governed how criminals are charged, what constitutes a criminal offense, and how evidence is handled. Shah said that “the laws to be repealed were formulated to strengthen and protect the British” and that their alternatives would have “Indian spirit and spirit” to free us from the “mental slavery” of the Raj.

The symbolism was clear at the end of the celebrations marking the 75th anniversary of the founding of an independent country. For example, the Indian Penal Code was drafted in part by the writer and bureaucrat Thomas Babbington Macaulay, famous in India for his advocacy of the teaching of the English language, and renaming it out of English is no doubt a source of satisfaction to anyone still aching. of things Macaulay said or wrote in the 1830s.

But the deeper question is what is the purpose of these new laws other than a blow to decolonization. I am sure there is a lot that needs to change to bring Indian criminal law into the 21st century. Undoubtedly, there will be some big changes buried in the lowercase letters: lawyers are already considering new penalties for “endangering the sovereignty, unity and integrity of India”, for example. But many fear that the new laws will borrow too much language from the old, while adding a layer of obscurity to the new crimes that would reduce individual freedom, rather than increase it.

The government has a weakness for unleashing gigantic new changes on an unexpected country without any real regard for how to implement them. This was most evident in its sudden move, in 2016, to withdraw 86% of India’s currency from circulation. There is an element of fiasco in this decision, too.

Replacing nineteenth-century laws with new ones might be a good thing in theory—except that criminal laws are, in a sense, living laws. They have been modified, interpreted, and reinterpreted by lawmakers, police, and judges over the decades. Significant changes have been introduced in the past, mostly after expert panels, hearings and months of public debate. Each of these items took some time, sometimes years, to reach the tens of thousands of overburdened police and judges who have to use them every day. How is India’s crumbling law enforcement system supposed to learn everything at once? It is fair to be concerned that, once again, the nation’s leaders are putting symbolism above common sense.

Even renaming the laws into Hindi may not be the best idea. The Chief Minister of the southern Indian state of Tamil Nadu – which, like many other Indian states, does not use Hindi as an official language – has already protested, claiming that the imposition of Hindi through these new laws is “recolonization in the name of decolonization.” Not everyone in India seems to agree that we are on the cusp of a thousand-year golden age.

More Bloomberg opinion:

• Despite Modi’s hype, India is not yet the next China: John Authers

• India cannot lead nor nurture the global south: Mihir Sharma

• Northeast India is on the brink. Where’s Moody?: Ruth Pollard

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Mihir Sharma is a columnist for Bloomberg. He is a senior fellow at the Observer Research Institute in New Delhi and the author of Rebooting: India’s Economy’s Last Chance.

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