The criminal law codes/ sanhitas of 2023: India
This is a collection of articles archived for the excellence of their content. |
A comparison with the British Raj laws being replaced
The Vidhi Centre for Legal Policy’s findings
[From the archives, January 18, 2024: The Times of India]
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From: [From the archives,January 18, 2024: The Times of India]
New criminal law codes, same old story
The British quit India but left behind their criminal justice system. Though the newly enacted BNS and BNSS are intended to rid the IPC and CrPC of their colonial hangover, they are more like old wine served in new bottles, argues the Vidhi Centre for Legal Policy Colonial approach based on need to control natives
Sriyanshi Bhatt & Naveed Mehmood Ahmad
A criminal justice system heavily focussed on deterrence, which prescribes meticulously crafted punishments – including the death penalty, long imprisonments and mandatory minimum sentences – and displays little consideration for rehabilitation, restitution and reformation. Sound familiar? Well, that’s the Indian criminal justice system for you in a nutshell. And while the new criminal law codes – Bharatiya Nyaya Sanhita and Bharatiya Nagarik Suraksha Sanhita – were admittedly enacted in 2023 with the goal of decolonising the criminal justice system, the situation remains practically unchanged. A product of the British Raj, the approach taken by our onetime colonial masters continues to inform India’s criminal laws to this day.
Formulated by Thomas Macaulay in 1860, the Indian Penal Code (IPC) was founded on the goal of furthering colonial rule by consolidating British authority and quelling any dissent through extraordinary police power. Victorian sensibilities were employed to ‘civilise’ the native population, firmly establishing criminal law as a means to coercively control the conduct of the native population.
The colonial administration relied on a militarised police to assert direct control over Indians. Extraordinary police pow ers of arrest, pre-trial detention, and extensive search and seizure authority, provided through CrPC and the Police Act of 1861, were hallmarks of colonial policing. Added to it was the colonial prison apparatus, designed for “aboriginal savages” and rooted in punitive measures. Post Independence, nothing much has changed. Prisons in India continue to prioritise incarceration, giving little thought to reform and rehabilitation.
So, we now have a situation where failure to revisit the role of criminal laws in post-colonial India has perpetuated abuse and police excesses for decades. It has also resulted in an overreliance on criminal law to address diverse social, economic, and regulatory issues.
OVERLAPS & OVERREACH
Centre has to notify the date from which new laws will come into force. That will also trigger provisions for repealing IPC, CrPC and Evidence Act. Here’s a comparison of some provisions of IPC and CrPC with their corresponding clauses in BNS, BNSS
How to craft a criminal justice system for India
Naveed Mehmood Ahmad & Aayush Mallik '
Introducing the new criminal law bills in Parliament, Union home minister Amit Shah made a strong pitch for decolonising India’s criminal justice system. The Bharatiya Nyaya Sanhita (BNS), the Bharatiya Sakshya Adhiniyam (BSA), and the Bharatiya Nagarik Suraksha Sanhita (BNSS), it was pointed out, would discard colonial vestiges and instill an ‘Indian’ spirit in criminal law.
But a closer look reveals a lack of any substantive changes. Of course, the three laws are now known by Hindi names and all references to the British monarchy have been removed. But the bid to decolonise the criminal justice system does not go much further than these cosmetic changes. The new laws remain for the most part tangled in a web of colonial definitions, prejudices, and practices. To decolonise India’s criminal justice system one must begin by revisiting its foundational premise. This premise has stayed unchanged and the state continues to view citizens with suspicion, keeping them under a constant fear of arrest and detention.
Colonial Penal Policy Persists
BNS makes no attempt to acknowledge and remedy the harsh penal policy that was instituted by the British. It maintains an over-reliance on imprison ments while punishments for several offences have been increased. The increase in mandatory minimum sentences for several offences reduces the space for discretion that could have allowed judges to take a lenient view in fit cases. On the other hand, the BNS prescribes ‘community service’ for only a handful of offences without even clearly defining what it means.
Lack Of Consistent Vision
To shake off its colonial underpinnings, the criminal justice system must clearly lay down the expectation from punishment and envision specific impacts of different forms of punishments. Take, for instance, the crimes of money laundering and sexual assault. These attract the same punishment – prison term ranging from three to seven years – without any recognition of the dissimilar nature of the offences.
Colonial Gender Notions
Even where the BNS consciously attempts to decolonise, it stops short of doing so consistently. Provisions such as use of criminal force to disrobe a woman and voyeurism have been amended to introduce gender-neutral language for the perpetrator, but the victim can only be a woman. Provisions relating to rape continue to use fully gendered language. This not only goes against the Statement of Objects and Reasons of BNS, but also renders invisible transgender persons. Discrimination against queer persons is evident in the omission from BNS of what was Sec. 377 of IPC, which protected them from sexual abuse. Victorian morality of the old IPC has not been addressed in the BNS. The offence of obscene acts, which criminalises objects that appeal to “prurient interests”, has been retained despite its vague and ambiguous terms. Expressions belonging to mediaeval Europe such as ‘quick with child’ continue in the BNS, despite modern medicine having understood the stages of pregnancy better.
It’s clear, then, that an effort to overhaul the criminal justice system will have to go much deeper than merely rewriting the rulebook. It’ll need:
Better Criminal Law-Making
Adoption of principle-based criminal law-making practices and acknowledging constitutional limitations on government’s power to criminalise can go a long way towards eliminating arbitrary criminalisation, which often targets specific communities or practices deemed deviant by majority value systems. It’s time we adopted more humane and effective ways of achieving ends that are traditionally ascribed to incarceration and move beyond the 19th century view of punishments. This entails exploring and adopting alternative forms of punishment that are more proportionate to the crime committed.
Decolonised Police
Colonial policing structures have perpetuated prejudicial practices – racist, communal and classist – for decades while politicisation of the police has only exacerbated the problem. True decolonisation will require institutional change in the police for which replacing the 19th century Police Act is a necessary first step. Limited powers of arrest, search and seizure, along with procedural safeguards to curb abuse of this power, will significantly contribute to decolonising the police.
Decolonised Prisons
Our prison system is rooted in the belief of the non-reformability of Indians. Post-colonial India must reimagine the role of prisons. These must not be seen as mere detention centres, but as institutions of rehabilitation and reintegration. Their punitive aspect should not dominate the purpose of punishment.
To conclude, the new criminal laws must not be seen as a culmination of the decolonisation exercise. Their overhaul would need a deep engagement with Indian society. These laws need to be progressive and rooted in principles of restitution, reform and rehabilitation while resonating deeply with Indian constitutional values.
