A historic overhaul?

July 1, 2024 is being dubbed as a ‘historic’ date in India’s legal landscape, for it saw the implementation of three new legislations—the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) which are replacements for the colonial-era Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and Indian Evidence Act, respectively. The new laws are claimed to ‘overhaul’ the criminal justice system in India. However, both the attribute ‘historic’ and the verb ‘overhaul’ appear to have limited relevance in the broader context.

For decades, there had been a consensus on the need to update India’s outdated criminal laws. The IPC, CrPC, and Evidence Act, despite numerous amendments, remained tethered to their colonial roots. The need for reforms was, thus, very much desired and essential. It was against this background that the Union Government, with ‘decolonisation’ as an emphasis, went on to bring the new laws framed "by Indians, for Indians." In essence, however, most of the new laws are a continuation of the so-called ‘colonial’ texts. If that continuation serves the purpose of streamlining the criminal justice system in India, aligned with contemporary challenges, it should not be a problem. It must be said to the credit of the code framers that they have managed to introduce a limited range of progressive provisions in the laws. However, the progressive elements of the laws are far outweighed by some seemingly regressive/oppressive provisions, coupled with continuation of already existing ‘outdated’ colonial provisions.

The continuation is not just in terms of text, but also in terms of the spirit. One of the most draconian ‘colonial’ laws—that relating to sedition—has been reinvented under Section 152 of the BNS; the government has made it more stringent than before, without of course using the term sedition. The temerity of the move is magnified multiple times when seen against the fact that the Supreme Court of India, after decades of judicial restraint, had decided to hit the pause button on sedition in May 2022. The ‘decolonisation’ claim—in the context of overhauling criminal justice laws—thus doesn’t seem to hold much relevance.

Furthermore, a criminal justice system where the police are given overarching control is reminiscent of colonial practices of subjugation. Multiple provisions in the new laws, particularly BNS and BNSS, tend to give greater and vague powers to the police than before. Under the BNSS, the possibility of detention in police custody has been expanded from the 15-day limit in the CrPC to up to 90 days. Essentially, it allows greater leverage to the police to seek police custody even after 15 days. It raises concerns about the increased potential for custodial torture and forced confessions, and makes bail a bit difficult, as judges are more comfortable granting bails in judicial custody vis-à-vis police custody. Also, sections 111 and 113 of the BNS borrow heavily from the Unlawful Activities Protection Act (UAPA). While section 111 deals with organised crimes, section 113 defines terrorist acts. The duality between UAPA and Section 113 of the BNS, coupled with unbridled powers accorded to the police to operate under any two, creates a threatening ground. In the guise of making ‘victim-centric’ laws, the rights and entitlements of the accused should not be compromised with. Additionally, the BNSS removes the provision for statutory bail if an accused has multiple offenses against them. This could lead to prolonged pre-trial detention, countering efforts to prevent undue incarceration for undertrials.

On the positive side, due emphasis on crimes against women and children, alongside guaranteeing free aid to the victims, is among the biggest highlights. Introduction of community service as an alternative punishment for minor offenses is another progressive step. Furthermore, the inclusion of sexual intercourse with a minor wife as rape addresses a long-standing grey area in child protection laws. This aligns with the Supreme Court's 2017 ruling that deemed the IPC’s previous exception for marital rape of minor wives unconstitutional. One has to wait and watch how the digitisation of proceedings and efforts to streamline and catalyse justice delivery unfold on the ground. In sum total, while the new laws are intended to bring certain positive changes in the criminal justice system, they fall far short of the much-needed ‘overhaul’. On the contrary, they also create new grey areas.