New Delhi: Union home minister Amit Shah on Friday (August 11) announced in parliament that the Modi government has decided to “repeal” the sedition law, as he introduced three new Bills in the Lok Sabha in a move to reform the criminal justice system and shed its colonial legacy.
The three new bills include the Bharatiya Nyaya Sanhita Bill, 2023 to replace the Indian Penal Code, 1860; the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 to replace the Code of Criminal Procedure, 1898; and the Bharatiya Sakshya Bill, 2023 to replace Indian Evidence Act, 1872.
“These British laws were made to strengthen and protect the British government and the aim was to punish and not bring justice. The spirit of three new laws that we are bringing will not be to punish but to give justice to every citizen and to prevent further crimes,” he said.
Shah gave a brief introduction of the three new Bills and said that they will be sent to a parliamentary standing committee and will be presented to the parliament thereafter.
The proposed legislation brings important changes, by criminalising mob lynching and marrying or having sexual relations with a woman by deception. It also provides for compulsory video recording of the statements by victims of sexual crimes, imposing time limits for filing chargesheets and completion of trials, as well as conducting trials for criminals who are absconding, among others.
Sedition replaced by a ‘draconian’ provision
The most important change, however, as hailed by Shah, has been to drop the provision of sedition under Section 124A of the IPC.
“Sedition (law) was brought (by the British) to save their rule. We have taken the historic decision to repeal sedition completely. This is a democracy, everyone has the right to speak,” said Shah.
However, a look at Section 150 of the Bharatiya Nyaya Sanhita, 2023 shows that while the word sedition may have been removed, the law remains and, in many ways, has been made more draconian by making it punishable with imprisonment for life or seven years imprisonment and shall also be liable to fine
Section 150 details Acts endangering the sovereignty, unity, and integrity of India.
It states: “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”
The explanation of the section states the following: “Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section.”
In comparison, the Sedition law (Under 124A IPC) had stated: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in 3[India], shall be punished with 5[imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
In its explanation, the law defined the expression “disaffection” as including disloyalty and all feelings of enmity.
The Section also explained that “comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
It further added that “comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
Speaking to The Wire, Anas Tanwir, advocate on record in the Supreme Court and founder of Indian Civil Liberties Union said that the explanation under Section 150 of the new law is “incomplete”.
“While it removed sedition, it makes a far more draconian provision. The explanation of the law appears incomplete. And it brings into its purview the potential to criminalise protest against any law or any action that the govt does not deem fit by using the words ‘subversive activity’ which is a very vague term and can include anything, even a protest,” he said.
New offences and stricter punishments
Shah said that in recent years there has been talk about the lack of a law for mob lynching which has been addressed in the new legislation.
“A lot has been said about mob lynching in the last seven years. Now mob lynching will have a punishment of seven years imprisonment or for life or death penalty,” he said.
Shah added that in cases of gang rape, punishment has been increased and may now include 20-year imprisonment as well as imprisonment for life.
“In cases involving girls less than 18 years old, provision of capital punishment has been made,” he said.
Referring to absconding criminals like Dawood Ibrahim, Shah said provisions have been made to hold trials in absentia.“In many cases, people like Dawood Ibrahim would commit crimes and run away. Now trials will take place despite their absence. If they have to appeal against the judgment, then they have to come to India and then appeal to Indian courts.”
Referring to cases of criminals who have political clout and remission of their sentences, Shah said that they “will not be let go” as was seen in Bihar recently – alluding to the release of Anand Mohan on account of Bihar chief minister Nitish Kumar’s heft.
“A sentence can be remitted from death to life imprisonment, life imprisonment to seven years, and seven years to three years. Anyone who has political connections will not be let go,” he said.
In addition, a separate category of crime has been brought for marrying or having sexual relations with a woman by deception or wrong credentials, as well as snatching which was not defined earlier.
The new laws will also make it compulsory for the police to record video statements of a survivor of sexual abuse.
In order to streamline the trial and chargesheeting process, Shah said that a time limit of 90 days will be imposed within which a chargesheet has to be filed. This deadline can be extended by another 90 days by courts but after 180 days the case will have to go to trial.
“After arguments conclude, judgments have to be given by courts within 30 days. Judgments will also have to be uploaded within seven days so an appeal can be filed if needed,” he said.
Organised crime has also been made a punishable offence and community service has been introduced for the first time for certain crimes.
In order to bring accountability to the police, Shah said that the force will have to provide documentary and digital evidence if a person has been arrested. “Often we see that the police after arresting a person don’t say anything for up to 4 days. Now they will have to give physical and digital notification to the relatives of the accused that their kin has been taken into custody.”
In addition, changes have been brought in to digitise the criminal justice system. Forensic evidence has been mandatory for crimes punishable with 7 years and above. If a case that has gone on for over 7 years has to be withdrawn, then it has to take the victim’s consent.
“This will protect citizens’ rights,” he said.
Key features of new Bills
Shah said that the three new Bills will bring important changes to make them relevant to Indian society and drop references to colonial rule.
The Bharatiya Nagarik Suraksha Sanhita Bill, 2023 which will replace CrPC will have 533 provisions. “We have changed 160 provisions, added 9 new provisions and 9 provisions have been removed,” Shah said.
The Bharatiya Nyaya Sanhita Bill, 2023 to replace IPC will have 511 provisions against the 356 in the earlier law. “There are changes in 175 provisions, 8 new provisions have been added and 22 have been removed,” said Shah.
The Bharatiya Sakshya Bill, 2023 to replace Indian Evidence Act will have 170 provisions instead of the 166 earlier. “23 provisions have been changed, one has been added and five removed,” he said.
According to Shah, these three laws were full of references to colonialism.
“Our existing laws have references to the parliament of the United Kingdom, provincial act, notification by the Crown, London Gazette, jury and Barrister(which is not there in our country), Lahore government, Commonwealth, Privy Council, British Crown, Court of Justice in England, Her Majesty dominions,” said Shah.
“A total of 475 references to gulaami ki nishani (signs of slavery) have been removed,” he said.
Manner of introduction ‘unfair’
While Shah said that the new legislations will overhaul the criminal justice system, lawyers said that it could bring operational difficulties.
Concerns were also raised that the Bills were introduced on the last day of the monsoon session and listed moments before their introduction.
“There should have been a wider consultation,” said Tanwir.
“Introduction on the last day is unfair but the parliamentary standing committee may consider amending rather than bringing new laws as there may be difficulties in interpreting provisions, bringing the criminal justice system to a grinding halt.”
However, he added that the move to bring in changes like defining mob lynching is welcome.
“This is a welcome move because earlier the Supreme Court had also directed the government to come up with data and there was never any data as it [mob lynching] was not defined. Now at least there is the provision to have that data,” he said.
Others have also expressed concern over the lack of consultation.
The Indian Government just introduced 3 bills to completely overhaul and replace the core of Indian criminal law. No consultation. No discussion. No chance for any experts to review them. Heaven help us all.
— Vakasha Sachdev (@VakashaS) August 11, 2023
#BREAKING: Home Minister introduces bill to amend Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act.
The names are sought to be changed, from English to Hindi.
—> IPC to Bharatiya Nyaya Sanhita.
—> CrPC to Bharatiya Nagarik Suraksha Sanhita.… pic.twitter.com/SLzgo4tj9Z
— Saurav Das (@OfficialSauravD) August 11, 2023
Concerns have also been raised about the nomenclature of the new legislations in Hindi as opposed to English as in other laws. Rajya Sabha MP P. Wilson said on X (formerly Twitter) that this was another form of Hindi imposition.
“Shocked to see names of new IPC, CrPC and Evidence Act in Hindi. Maybe the Hon. Union Home Minister has not seen Article 348 of the Constitution of India? Names of Bills & Acts must be in English,” he said.
Shocked to see names of new IPC, CrPC and Evidence Act in Hindi. Maybe the Hon. Union Home Minister has not seen Article 348 of the Constitution of India? Names of Bills & Acts must be in English.
This is yet another form of Hindi imposition. South Indian lawyers are going to… pic.twitter.com/TuXAjqpcdL
— P. Wilson (@PWilsonDMK) August 11, 2023
“This is yet another form of Hindi imposition. South Indian lawyers are going to spend most of the time in courts trying to pronounce these names.”
Speaking to The Wire Sanjoy Ghose, senior advocate in the Delhi high court said that this is “unheard of.”
“All legislations, in the form of ordinances or bills have a Hindi and an English version. But this is for the first time that they have given the English version a Hindi name and forced a Hindi name on English law.”
He added that this also needs to be seen in the light of a very Brahmincal Hindi imposition as well.
“The reason I say this is that is a very Sanskritised Hindi name that they have given, for instance, it could have been named simply Bharatiya Danda Kosh for instance but instead it is called Bharatiya Nyaya Sanhita, which is a very Sanskritised Hindi,” he said.
Ghose added that it is also not clear why there was a need to bring in entirely new laws instead of simply bringing in amendments.“Yes, these are colonial legislations. But other nations like Malaysia, Singapore, Pakistan, Bangladesh, etc., have also continued with the same penal code. Why is there a need to replace it entirely instead of bringing in amendments?”Ashwani Kumar, senior advocate and former Union minister for Law and Justice said that the changes in the law “were prompted by judgments of the Supreme Court and the Government’s appreciation of their need.”
“While changes in law relating to sedition, mob lynching and crimes against minors and women are welcome, the absence of a comprehensive law against custodial torture to address its several dimensions is not understandable. Hopefully, such a law will be introduced soon in furtherance of the right to dignity guaranteed under Article 21 of the Constitution,” he said.