Criminal law

New draft criminal laws: there is nothing anti-colonial in them


For the government to take into account the legacy of colonialism, it needs to reassess its vision of justice, its methodology for dealing with offenders, and equate it with the institutional agents who enforce criminal law.

criminal justice system“Moreover, the current legal infrastructure may not adequately support the bold promises made in the bills,” Stuti Shah writes.

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On August 11, on the cusp of the 77th anniversary of India’s independence, the central government unveiled three important bills in Parliament – the Bharatiya Nyaya Sanhita, the Bharatiya Nagrik Suraksha Sanhita, and the Bharatiya Sakshya Adhinyam. These are intended to replace the prevailing colonial criminal legislation in India, the Indian Penal Code of 1860 (IPC), the Criminal Procedure Code of 1973 (CrPC) and the Indian Evidence Act of 1872, respectively. Union Home Minister Amit Shah revealed that these bills It will be referred to a standing committee tasked with making recommendations on bills to parliament during its winter session.

Shah hailed the new bills as a symbol of India’s liberation from imperial domination and a legacy of servility. However, upon reading the bills, their introduction appears to be more than a symbolic effort to achieve electoral gains by placating citizens who are increasingly in favor of obliterating colonial legacies, or distracting citizens from other political issues. I contend that on a foundational level, the bills do not propose anything new. Not only does it retain most of the provisions of the colonial texts, but it does nothing to shake the very foundation of India’s still vindictive and offender-centric colonial justice system, with its dominant ideology steeped in imprisonment and police brutality. Therefore, the government’s claim of bringing down the colonial legacy within the criminal legal system through these bills is unfounded.

Many academics in the field have found themselves frustrated after scrutiny of the bills, with some claiming that they lack substantial changes, essentially mixing up provisions with minimal amendments. Critics have even asserted that the new provisions complicate the legal process, which could complicate the adjudication process, despite claims of simplification.

Moreover, the current legal infrastructure may not adequately support the bold promises made in the bills. For example, Shah claims that “the aim[of the bills]is to raise the conviction rate to 90 per cent”, and that “every Indian will have justice within three years maximum”. This dangerous statement raises the specter of potential injustice overshadowing the pursuit of justice, allowing for hasty convictions where the burden of proof is not effectively met. The goal of criminal law cannot be to convict more criminals, but to reform the offender. Justice cannot be reduced to an experience constrained by time, and must be objective, providing survivors with a sense of security and closure. The state cannot ignore its duty to create reform conditions for those released from prisons, which would also contribute to achieving better safety for societies.

The government has also been deliberately silent on important colonial legislation, the Police Act of 1861, which still governs most police forces in India. In fact, the origin of the Indian Police can be traced directly back to the period after the Mutiny of 1857 under the British, who carried it out to ensure that such mutiny would never happen again. It thus places oversight of the police in the hands of the political executive and legitimizes its use as a tool to suppress dissent and assert control. Police brutality, torture in detention, and extrajudicial confrontations continue unabated because of the way this legislation has systematically empowered the police force.

For the government to take into account the legacy of colonialism, it needs to reassess its vision of justice, its methodology for dealing with offenders, and its equation with the institutional agents who enforce criminal law.

β€œThe basis of these measures was to protect the British, not the common people of India. It was complex, just to punish the Indians when the Indian concept is to do justice to the poor and punish the guilty,” Shah said while presenting the bills. His emphasis on the prison system animates him. Justice, as a system that punishes offenders, raises a critical question: Is the survivor’s sense of justice retributive to the extent that it depends on harming the offender?

At the same time, the “poor” are being categorized as victims who demand harsher prison measures, while ironically they still make up disproportionately large numbers of the prison population. It is time to acknowledge that the prison system, far from rhetoric, preys on the poor and Dalit communities. Historical bias and criminalization of marginalized groups has instilled in them a lack of confidence in law enforcement and the legal system, making them reluctant to turn to the law.

It is short-sighted to demand legislative reform, without at the same time calling for a real reinvention of the criminal framework in India, which requires a fundamental change in its structure, scheme and objectives, and its replacement by a more survivor-focused framework, which is at the same time reformative for the perpetrator. . We must take a step back and assess the entire penal system established by the British colonial era. For example, the prison architecture itself embodied colonial ideologies. The panopticon model of prisons was designed by the British utilitarian Jeremy Bentham in the 18th century, to make prisoners feel like they were being watched constantly by guards, and to have a chilling effect on their speech and behaviour. An example of this was when the British captured western India in 1818 and built the Panopticon Jail at Poona. Offenders need help to understand where they have gone wrong, and how they can change for the better, and the colonial prison system is ill-equipped to facilitate this. We cannot pretend to get rid of colonial continuity, when the foundation of our criminal legal system remains rooted in it.

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Countries around the world are beginning to recognize the damage their criminal policies inflict on marginalized communities through imprisonment, by revising their criminal laws to include restorative justice options and innovative alternatives to imprisonment inspired by their indigenous cultures. On the other hand, the Indian government has bypassed means of resolving conflicts, with the exception of community services, which Shah admitted in his speech that we borrow from other countries. The names of the bills are a misnomer – they don’t really have anything Indian in them, except for their Indian titles, which again cater to a segment of the population.

While many Indian non-profit organizations have recognized the shortcomings of punitive methods of dealing with crime and adopted restorative measures, our criminal laws are still mired in the colonial ideology of confusing punishment with accountability. Amidst this landscape, India has the opportunity to glean insights from the age-old conflict resolution techniques of the Adivasi communities, and other local justice traditions, which are both restorative and restorative. In doing so, India may truly shed the remnants of its colonial heritage and chart a distinct path towards justice and reconciliation.

The writer is a JD candidate from Columbia Law School

First published on: 24-08-2023 at 13:34 IST


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