The Union Home Minister Shri Amit Shah who introduced the three new criminal bills to Lok Sabha on 11 August 2023 and again presented the amended trio to the said House on 20 Dec 2023 had delivered his impromptu narratives in justification of the said Bills on both occasions. The Minister did also hold a Press Conference on 1st July 2024 heralding the enforcement of the three new criminal Acts. In course of his addresses on each occasion, the Union Minister claimed inter alia that the vision of the Prime Minister and that of their Government at Centre was to fully de-colonialize the criminal justice system, so that meting out justice to the victims, not simply punishment to the offenders would be the focal aim of their new dispensation. Besides, while making the new system victim-centric, they would ‘make the police accountable’, so assured the Union Home Minister in course of his speech to Lok Sabha on 20 Dec 2023 vide https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1988913.
However, the text of the new laws messages an altogether different story. First of all, the Union Minister’s emphatic claim that the repealed three criminal laws (Indian Penal Code 1860, Criminal Procedure Code 1973 and Indian Evidence Act 1872) were colonial is by far a lame excuse insofar as we know that these laws were subject to a long series of Adaptation Acts, Amending Orders and Amendment Acts passed by Parliament and State legislatures as required under Article 372 of the Constitution of Indian Republic. To be more specific, of the three criminal laws, Criminal Procedure Code 1973 was enacted by way of repeal and replacement of the British-made Code of 1898. Extensive debates among the stake-holders were held under the aegis of the Law Commission as documented in a series of Commission’s Reports starting from the Chairman M.C. Setalbad’s 14th Report in 1958 down to Chairman P.B. Gajendragadkar’s 48th Report in 1972, all leading to enactment of CRPC 1973. The other two Codes, Indian Penal Code 1860 and Indian Evidence Act 1872 had also gone through in-depth reviews by Law Commission spanning several years post-independence. The Commission’s Chairman V.K.V. Sundaram in his 42nd Report had initiated a comprehensive review of IPC 1860 in 1971 and was followed by his several successors culminating in Chairman K. Jayachandra Reddy’s 156th Report in 1997. Besides, Chairman P.B. Gajendragadkar had submitted his 3-Volume Report on a review of Indian Evidence Act 1872 in his 69th Report in 1977 and was followed by his several successors culminating in Chairman M. Jagannadh Rao’s 185th Report on the subject in 2003.
Thus the process of Indianising the three principal codes of criminal law was running in a more or less systematic manner right since the first decade from the proclamation of Constitution. Not only the Law Commission but also the Supreme Court, High Courts, Parliament and State legislatures across the country were constantly engaged in interpreting, re-interpreting and amending these laws. Even a PIB press release by the Union Home Ministry found at https://pib.gov.in/PressReleasePage.aspx?PRID=2001862 acknowledges, “the Department–related Parliamentary Standing Committee on Home Affairs, in its 111th (2005), 128th (2006) and 146th (2010) Reports, recommended for a comprehensive review of country’s Criminal Justice System by introducing a comprehensive legislation in Parliament rather than bringing about piece-meal amendments in respective Acts”. However, neither the Home Ministry nor the Committee for Reforms in Criminal Law appointed by it did ever care to discuss the recommendations of the said Standing Committees. The Home Ministry did also refrain from mentioning the ‘Report of the Committee on Draft National Policy on Criminal Justice’ 2007 https://www.mha.gov.in/sites/default/files/2022-08/DraftPolicyPaperAug%5B1%5D.pdf which was brought out by the said Ministry about 17 years back. However, as a result of continuing and cumulative exercises in the past one can now notice the present day texts of the criminal laws interspersed with a legion of amendments wrought by Parliament and State legislatures during the post-independence era, leaving far behind the letter or spirit of colonial legacy.
But, sadly enough, neither the Union Home Minister nor the Committee for Reforms in Criminal Laws constituted by his Ministry vide https://criminallawreforms.in has acknowledged the fabulous contributions made hitherto by the Law Commission and other legislative and juridical bodies towards the ongoing process of decolonization of the country’s criminal laws post-independence. Ideally the Union Home Minister, if he really meant business, should have continued the work of reforming these laws from the point where it was left by his predecessors, instead of suddenly brandishing all the existing criminal laws as colonial and themselves as the sole salvager.
Such being the vainglorious gesture of the Union Home Ministry, its so-called exercise to overhaul the country’s criminal justice system at one go has resulted in a topsy-turvy which would take years for redemption and recovery. As pointed out by several members of Parliamentary Standing Committee on Home Affairs in their notes of dissent, https://prsindia.org/files/bills_acts/bills_parliament/2023/SC_Report_Bharatiya_Nagarik_Suraksha_Sanhita_2023.pdf, not only the massive bulk of the new draft laws was copied and pasted from the preceding texts, but also the language employed therein was the self-same Victorian-era English of 19th century. Truly speaking, of the three new criminal Acts, the least affected is the Bharatiya Sakshya Adhiniyam 2023 which has 170 Sections in place of 167 of corresponding Indian Evidence Act 1872. The other two laws, namely Indian Penal Code 1860 and Criminal Procedure Code 1973, though broadly reproduced and renamed as Bharatiya Nyaya Sanhita 2023 and Bharatiya Nagarik Suraksha Sanhita 2023 respectively, contain some provisions which are by far not only draconian but also anachronistic compared to the outgoing laws. Let’s cast a cursory glance at the most problematic ones.
1) Section 152 of BNS 2023 – Captioned as ‘Act endangering sovereignty, unity and integrity of India’, the Section 152 provides for ‘imprisonment for life or with imprisonment which may extend to 7 years and shall also be liable to fine’. This newly introduced penal provision is far more draconian compared to Section 124-A of outgoing IPC which punished an act of ‘Sedition’ with life imprisonment and a fine or 3 years imprisonment with fine. The Supreme Court in its order dated 11 May 2022 has put on hold the IPC Section 124-A. The drafters of BNS have cunningly done away with Section 124A (Sedition), but introduced Section 152 (which may be called Super-sedition) that enables the Police to book and prosecute any person on any flimsy, hyperbolic pretext of protecting sovereignty, unity and integrity of the country. This new offence is couched in so many confounding and ambiguous words such as ‘sovereignty, unity and integrity of India’, ‘by use of financial mean or otherwise’, ‘subversive activities’, ‘feelings of separatist activities’ and ‘indulges in’, which beggar any precision and definition. The explanation added to the Section 152 of BNS of course says that the comments expressing ‘disapprobation’ of any action of the Government won’t be covered under this penal Section. But, the canvas of unlawful activities that invite the penal action under Section 152 is so vast and varied that even a donation small or large to a movement critical of the Government’s policy, can land the donor in a sea of trouble.
2) Section 113 of BNS (Terrorist Act)- Peculiarly enough, this Section finds its place in Chapter VI (Of offenses affecting human body), whereas it should have been placed under Chapter VII (Of offenses against the State) alongside of Section 152 already discussed above. As per the Section 113 (1), a Terrorist Act is an act committed ‘with an intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people in India or in any foreign country’, for which punishment varies from death or imprisonment for life along with fine in severest case to 5 years or 3 years of imprisonment along with fine depending on the gravity of the offense committed. The Offense of Terrorist Act is cognizable, non-bailable and triable by the Court of Session. The language of the Section is such as to enable a Police Officer to arrest any person on a mere suspicion that he/she has an intention or is likely to threaten the country’s unity, integrity and sovereignty etc. Besides, as per the Explanation appended to this Section leaves the discretion to the SP to register a case against ‘Terrorist Act’ under this Section of BNS or under the pre-existing Unlawful Activities (Prevention) Act 1967. Thus, the Police Establishment of a State enjoys double discretion in arresting a person, that is, even if the person has not committed any act of violence or atrocity as such, and secondly, to apply which of the two laws- BNS or UAPA- would be charged against the accused. That being so, any dissident or critic of the Government policy is likely to fall prey to the arbitrary arrest, detention and imprisonment by the Police of a State or UT.
3) Section 111 of BNS (Organized crime)- Like the Section 113 (Terrorist Act), the Section 111 captioned as ‘Organized Crime’ should have been placed under Chapter VII (Of offenses against the State) instead of Chapter- VI (Of offenses affecting the Human Body) where it is placed now. The offenses like land grabbing, economic offense, cyber-crimes, drugs, weapons, illicit goods and services etc. which are now clubbed with the offenses against human body, are as a matter of fact, in the nature of offenses against the State. Besides, the definition of organized crime as given in Sub-section (1) of Section 111 has been made very amorphous and open-ended by the use of words ‘by any other unlawful means to obtain direct or indirect material benefit including a financial benefit’, which would give an arbitrary handle to the police to interpret it in the manner they like, to book any person on the charges of organized crime. Any offense of organized crime is cognizable, non-bailable and triable by the Sessions Court. The punishment prescribed against the charges of Organised Crime is very stringent, starting from death to imprisonment for life and a fine of Rupees 10 lakh to imprisonment for 10 years and fine of 1 lakh rupees. Thus, the Section 111 is likely to be misused by the Police to foist charges of organized crime on any person who is critical of the Government policies and actions in exercise of his fundamental right to freedom of speech and expression.
4) Capital punishment for increased number of offenses- In the outgoing IPC 1860, capital punishment was prescribed against 11 nos. of grievous offenses, such as Section 121 – Waging war against Govt of India); Section 132 -Abetment of Mutiny; Section 194 -Giving false evidence with intent to procure capital offense; Section 195A -Threatening any person to give false evidence; Section 302 – Punishment for Murder; Section 305 -Abetment of suicide of child or insane person; Section 307(2) – Attempt to murder by a life convict; Section 364A- Kidnapping for ransom; Section 376A – Punishment for causing death or resulting in persistent vegetative state of victim; Section 376 E- Punishment for repeat offenders; and Section 396 – Docoity with murder. But the newly notified Bharatiya Nyaya Sanhita 2023 in addition to the above mentioned 11 offenses of IPC 1860, has added 3 more new offenses inviting capital punishment. Firstly, Section 103 (2) which is now called the offense of mob lynching lays down that when a group of 5 or more persons commit murder ‘on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground’ shall be punished with death or with life imprisonment and with fine. It needs to be noted that the expression ‘on any other similar ground’ is an open-ended one, subject to the discretion of the police to arbitrarily interpret it. Secondly, Section 111 (Organised Crime) in Sub-section (2) (a) provides for capital punishment and fine upto Rupees ten lakh against an offence of organized crime, which is also nebulously defined by insertion of words ‘any other unlawful means’ in subsection (1). Thirdly, the Section 113 (Terrorist Act) in subsection (2) (a) provides for capital punishment and a fine against any terrorist act, whereas the very definition of terrorist act as given in Subsection (1) uses highly subjective and arbitrarily interpretable expression like ‘by any other means of whatever nature’, which allows a wide discretion to the police to nab any person on the grounds of terrorism. Moreover, while the ongoing global trend is to do away with capital punishment altogether as evident from abolition of death penalty by UK, Canada, Australia, New Zealand, Norway, Portugal and South Africa etc. and while the Supreme Court of India right since its judgment in Bachhan Singh versus State of Punjab (1980) has limited the death penalty to the ‘rarest of rare case’ followed by a similar recommendation by Law Commission of India in its 262nd Report 2015, the question arises how is it that the BNS 2023 has not only retained the death penalty in cases covered under outgoing IPC 1860, but also expanded its ken to three more new offenses. Above all, while the members of Parliamentary Standing Committee on Home Affairs (2023) in their notes of dissent had strongly urged for the abolition of death penalty, is it not a retrograde step on the part of the Union Home Ministry to insist on its retention and extended application in BNS 2023?
5) Section 226 of BNS 2023 (Attempt to commit suicide to compel or restrain exercise of lawful power)- This new provision made under BNSS reads, “Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service.” This provision has far reaching negative implications insofar as it criminalizes the acts of hunger strike resorted to by the Satyagrahis to raise their voice of protest against the instances of injustice, impropriety and arbitrariness on the part of the Government or any lawful authority. This form of peaceful and non-violent protest against the powers-that-be has been in practice right since the days of anti-colonial freedom struggle as exemplified by great freedom fighters and martyrs like Mahatma Gandhi, Shahid Bhagat Singh and Netaji Subhas Chandra Bose. In the post-independence years hunger strike as a legitimate and democratic form of protest, as permissible under Article 19 (1) (a) of Constitution has been in practice by all political parties, trade unions, women, youths and other segments of population. Strangely enough, the BNS 2023 has made hunger strike an offense punishable with imprisonment or fine or both. Such obnoxious prohibition of hunger strike as a people’s form of dissent and protest if allowed to be implemented shall take away a fundamental right of the citizens guaranteed in the constitution.
6) Section 187 of BNSS 2023 (Procedure when investigation cannot be completed within 24 hours)- The outgoing CrPC 1973 in Section 167 had dealt with this matter under the self-same caption. But, a discrete analysis of the two Sections shall bear out a striking difference between them. As per Sec 167 (2) of CrPC, the Magistrate can allow the detention of an arrestee under police custody for a maximum period of 15 days, at one initial go. But, the Magistrate can allow his detention under the judicial custody beyond the said period of police custody for 15 days, that is, for 60 days or 90 days if alleged offenses are grave enough to invite punishment for death or life imprisonment or imprisonment for 10 years or a lower term of imprisonment. However, the Section 187 of BNSS 2023 in Subsection (2) provides that the Police Custody even if limited on the whole to 15 days in total, may be covered in parts within 60 days or 90 days as the case may be. This new provision empowers the police to keep an accused in its custody intermittently and spread across the entire period of 90 days. Thus the new law gives an arbitrary handle to the police to detain an accused person in parts for the entire length of 90 days on the spacious ground that the investigation not having been completed, they need the additional police custody. As a result, the accused person cannot move his application for bail during the entire period of 90 days, since the Police can approach the Magistrate for granting custody for further interrogation of the accused. A large section of judicial literati and human rights activists in addition to the dissenting members of Parliamentary Standing Committee on Home Affairs have expressed their strong apprehension that this retrograde provision for extended police custody is likely to result in large scale abuse of police power and unbridled harassment to the accused persons who are not yet convicted of any crime.
7) Section 43 (3) of BNSS 2023– Handcuffing of an accused- The outgoing CrPC 1973 has no provision for handcuffing an accused person, though in Section 46 (2), it requires ‘the police officer to use all means necessary to effect the arrest’ in a situation where the accused person resists or attempts to evade the arrest. In D.K. Basu versus State of West Bengal (1996), the Supreme Court set guidelines on rights of accused while being arrested or in custody. As per the said guidelines, handcuffing violates all standards of decency and should be considered as the last resort and should not be followed as a custom. The judgment says “The use of handcuffs or leg chains should be avoided and if [required] at all, it should be resorted to strictly in accordance with the law repeatedly explained and mandated in judgment of the Supreme Court in Prem Shanker Shukla versus Delhi Administration (1980). In Prem Shanker, the Supreme Court had denounced the act of handcuffing by observing, “Insurance against escape does not compulsorily require handcuffing.” However, in complete disregard to the above judgments of the apex court the BNSS, in Section 43(3), explicitly states, “The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences.” Thus, the catalogue of offenses that require the handcuffing as per the BNSS is very vast and the discretion to decide whether to handcuff or not rests absolutely on the police officer in charge of the offender. This handcuffing provision is therefore likely to be extensively abused leading to dehumanization of the accused and moral atrophy of the society at large. It is highly perplexing that the Union Home Minister while waxing eloquent for decolonizing the country’s criminal laws, has re-introduced handcuffing a colonial practice of British Raj into the BNSS 2023, which was done away with by CrPC 1973 and a host of apex court judgments post-independence.
8) Section 173 of BNSS 2023- Information in Cognizable cases- Gone are the days when an ordinary complainant was entitled to obtaining a copy of his First Information Report from any Police Station forthwith and free of cost, as mandated under Section 154 of outgoing CrPC 1973. Because, the corresponding Section 173 of BNSS 2023, firstly, requires the concerned Police Officer to take 3 days to share a copy of the complaint, if electronically filed by the informant vide Subsection 1(ii), only after obtaining the signature of the informant. Secondly, in case of complaints around offenses which provide for punishment of 3 to 7 years of imprisonment, the OIC of Police Station, after obtaining prior permission of DSP, is required to conduct a preliminary enquiry within 14 days to ascertain the bona fides or otherwise of the complaint so lodged and then only a copy of the FIR could be shared with the informant. It might so happen that the preliminary enquiry so conducted would reveal no bona fides of the complaint, in the event of which the FIR can’t be registered at all. One may argue, as a matter of remedy, the aggrieved informant may approach the SP who is empowered to investigate the case if it discloses a cognizable offense. But, if we read the provisions carefully, we notice that the SP is authorized to take up the matter in case the concerned police officer refuses to record the information under subsection (1), while the discovery of bona fides or otherwise of an FIR is covered under Subsection (3). Thus, irrespective of the FIR filed orally or through online under BNSS, the discretion to record it or not lies for all practical purposes with the Officer-in-Charge of a Police Station, whereas the Section 154 of the outgoing CrPC 1973 had mandated its registration along with its supply forthwith and free of cost to the informant.
9) Section 479 of BNSS 2023 (Maximum period for which Undertrial Prisoner can be detained)- As is well known the outgoing CrPC 1973 in its Section 436A bore the same caption while dealing with the Bail that can be granted to an undertrial prisoner. Though both sections allowed an undertrial prisoner to obtain bail on completion of half the term of sentence provided against the offense, there are two critical differences between the two, which make the Bail obtainable to an undertrial prisoner under BNSS 2023 more difficult and stringent than under the outgoing CrPC 1973. Firstly, Section 436A (1) of CrPC had provided for a single exception in respect of an undertrial in getting the bail, that is, if he is accused of an offense punishable with death, whereas Section 479(1) of BNSS provides for an additional exception, that is, if the accused is also punishable for life imprisonment. Secondly, and more significantly, the Sub-section (2) of Section 479 of BNSS says that “where an investigation, inquiry or trial in more than one offense or in multiple cases pending against a person, he shall not be released on bail by the Court”. It usually happens in most of the cases that an accused might have been arrested for a number of offenses, out of which one may be a cognizable and non-bailable one while others are petty bailable offenses, such as theft of less than Rs. 5,000/- under BNS Sec 302(2), attempt to commit suicide to compel or restrain lawful power under Section 226, state of intoxication in a public place under Section 355, public servant unlawfully engaging in trade under Section 202 or non-appearance in court in response to a Proclamation, under Section 209 or Defamation under Section 356. The punishment against such petty offenses is imprisonment for a small duration, a small fine or community service. However, If any of such petty, non-cognizable, bailable offenses is kept pending against the concerned undertrial before a Court or an authority in addition to a serious, non-bailable one, the accused can’t be released on bail. Such a queer provision would only lead to continued imprisonment of the undertrials who are otherwise qualified to release on bail and consequent overcrowding of our jails by the undertrials.
10) Section 172 of BNSS (Persons bound to conform to lawful directions of police) – This Section falls under the Chapter XII (Preventive Action of the Police) of BNSS 2023 and requires that “all persons shall be bound to conform to the lawful directions of a police officer given in fulfillment of his duty under this Chapter”. Though the outgoing CrPC 1973 in Chapter XI bears the same caption and contains the provisions similar to those of Chapter-XII of BNSS, the Section 172 of BNSS as quoted above is a new addition. While the sub-section (1) of Section 172 requires every person to obey the ‘lawful’ directions of a police officer given under this chapter, there is no definition of the term ‘lawful’ given in this chapter or elsewhere. It implies that every person has to comply with the direction of any police officer as to the arrest, detention or removal of that person. There being no mention of the rank or designation of the police officer empowered to give ‘lawful’ directions, any police officer can exercise this power in any manner he likes. Besides, as per Sub-section (2) of Section 172 of BNSS, any such police officer has also been given discretion to decide as to whether he should take the person ‘resisting, refusing, ignoring or disregarding to conform to any direction given by him’ before a Magistrate or release him as soon as possible within a period of twenty-four hours. Such an unbound discretionary power given to any police officer is likely to open a floodgate of corruption by the concerned police officer on one hand and to wreak vengeance against the recalcitrant person on the other. Section 172 of the BNSS bears an uncanny resemblance with Section 43A of the Unlawful Activities (Prevention) Act, 1967 which gives power to the police to arrest if they have “has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing.”
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From out of umpteen instances that plague the new criminal laws- BNS 2003 and BNSS 2023 with backdoor entry of draconian provisions characteristic of colonial era, we have discussed ten only insofar they significantly touch upon the day-to-day concerns of common citizens. However, as a matter of fact, what the trio of new criminal laws has accomplished is an unabashed return to the pre-independence colonial era, by way of a systematic undoing of de-colonial reforms that the IPC 1860, CrPC 1973 and IEA 1872 have undergone during more than 75 years of India’s independence.
Chitta Ranjan Behera, Advocate Orissa High Court, Cuttack, E-Mail- [email protected],
