“Consistency is the hallmark of the unimaginative.” (Oscar Wilde)
With greatest respect to Wilde, if the government of the day were to embark upon a project as ambitious as “decolonising” the Indian Penal Code (IPC) – a law that has stood the test of time in many nations of the Commonwealth, such as Malaysia, Singapore, Pakistan and Mauritius – a little bit of “consistency” might not be that bad a thing.
Largely the work of Thomas Babington Macaulay, the IPC was the first codification of criminal law in the British Empire and is the longest-serving criminal code in the common law world.
It was informed by the ideas of utilitarian reformers, notably Jeremy Bentham, who advocated a wide range of reforms to English criminal law and its administration in the early nineteenth century.
Macaulay embraced Bentham’s ‘science of legislation’ and his aspiration for ‘universal jurisprudence’ after he developed a close association with James Mill during the passage of the India Charter Act, 1833.
On December 11, 2023, the Parliament of India was informed by Union home minister Amit Shah that the IPC; the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1872 (IEA) would be withdrawn and replaced by three new criminal codes after incorporating changes to them as recommended by a parliamentary committee.
In fact, the criminal codes which were sent to the parliamentary committee were widely criticised by the legal community as they were replete with mindless cut-and-paste and typographical bloopers!
On December 25, these Bills received presidential assent. For reference, the three new criminal codes are the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Act (BSA), which replace the IPC, CrPC and IEA respectively.
Terrorism makes its entry into a general penal law
Section 113 of the BNS seeks to bring in the “terrorist act” as a new offence, as the IPC (its predecessor) did not have any provision to this effect.
A concern arises as the offences related to “terrorist acts” have already been defined in the Unlawful Activities (Prevention Act) (UAPA).
The definition of a “terrorist act” under the BNS exactly mirrors the definition of a ”terrorist act” under the UAPA. This makes the law vulnerable to being misused, as now a superintendent of police shall have the discretion to book a person either under the UAPA or the BNS.
No debate or discussion, hence second guessing?
The suspension of a total of 97 members of parliament at the time of the passage of the three new criminal codes significantly curtailed the scope for any debate, discussion and deliberation on these legislative measures. As a result, there exists no parliamentary deliberation on the insertion of Section 113, where the government could have been pressed to provide justifications for this potential duplication.
This leaves us with only the option of “second-guessing” the impetus behind this legislative action.
First, it may suggest an attempt by the government to alter procedural aspects concerning investigating agencies in cases involving terrorist acts.
However, if this were the case, a more judicious approach would involve addressing areas necessitating amendments or enhancements in the UAPA. Amending the existing law would obviate the need for unwarranted legislative duplication, preserving the integrity and effectiveness of the established legal framework provided by the UAPA.
Another possibility could be that the government might be acknowledging the potential for the misuse of the draconian UAPA and is thereby bringing “terrorist acts” into general law to allow them to be addressed through local state police procedures outlined in the BNSS (successor to the CrPC).
Yet, if this were the objective, one would expect a transparent discourse around and advertisement of the government’s intention to incorporate Section 113 into the BNS. The limited debate surrounding this matter raises vital questions regarding the clarity and communication of the government’s intent behind this legislative endeavour.
Insertion into the chapter on the ‘human body’
The penal law classifies offences into categories. Traditionally, offences related to terrorism were placed under a chapter dealing with “offences against the state”. Curiously, the introduction of the “terrorist act” as a new offence under the BNS is within the chapter dealing with “offences affecting the human body”.
Terrorism often involves acts that extend beyond direct physical harm to individuals and encompass broader threats to national security, public order and societal stability. In fact, the definition of “terrorism” in the BNS mechanically adopts the UAPA definition, which does not restrict the offence only to the body.
For example, blowing up a strategic bridge with no bodily injury to any person would still qualify as a ‘terrorist act’. Could it be that by including the “terrorist act” in the chapter on the “human body”, the government was and bringing only those acts directed at the human body within the general penal law?
This, however, would be absurd, as terrorism by its very nature is focused on the consequences of the act, rather than the actual act itself, and such acts could be targeted at human lives or vital installations or even both.
Duplication or duplicity?
As stated, it is unclear why the new offence of the terrorist act has been provided for in the BNS. What was the need for duplication when the UAPA, which is a special statute, already covers terrorist acts?
The striking similarity in the language of the definition of a ‘terrorist act’ in both statutes raises grave doubts as to the intent behind such a move. In modern criminal law jurisprudence, the criminal justice system typically aims for precision and clarity in drafting legislation in order to avoid confusion and ensure consistent interpretation.
The presence of this duplicate definition in both the UAPA and BNS would lead to ambiguity in understanding its legislatively intended scope and application. Further, the rationale of this duplication becomes more susceptible to ambiguity as no explanation is provided by the parliamentary standing committee on home affairs for such a legislative step.
The duplication of the definition under Section 113 of the newly enacted criminal code and the UAPA can be found in the comparative table below:
The UAPA as a special statute and the rationale for a special law
Statutes related to counterterrorism are often enacted to address threats to national security. These statutes grant law enforcement agencies specific powers to deal with situations that may pose risks to the sovereignty and integrity of a nation.
Such types of offences are covered under special statutes, as they prescribe heightened penalties for offenses falling within their purview. This may serve as a deterrent and convey the severity of certain actions, recognising the unique harm or threat posed by specific behaviours.
The need for special statutes arises when the general laws of a country are not sufficient to address the unique needs or circumstances of a specific group or situation.
The UAPA was enacted looking at the highly specialised and complex nature of terrorist activities, the need to deal with them through a different procedural law to address the intricacies involved and to provide detailed regulations that may not be adequately covered by general statutes.
Doctrine of harmonious construction
The courts have consistently applied the “rule of harmonious construction” to resolve conflicts between the general and special provisions of ‘conflicting’ laws. This legal maxim dictates that when there is an apparent conflict between two independent provisions of law, the provision of the special law must prevail over that of the general law.
The UAPA is the special law addressing terrorism, whereas the BNS is a general statute that addresses offences generally.
It is the established precedent that in a situation involving both a general law and a special law addressing a specific aspect (in this case a terrorist act) that is covered by the general law (in this case the BNS), the rule of harmonious construction is invoked and the special law prevails over the general.
Therefore, given that the UAPA will apply rather than Section 113 of the BNS, the latter’s insertion defies all logic.
For us to understand the implications of this duplication, we will have to briefly understand how an investigation is proceeded under terrorist laws.
As discussed, the UAPA happens to be the special statute that deals with terrorist acts, which are mentioned as a scheduled offence under the National Investigation Act, 2008, thereby giving jurisdiction to the National Investigation Agency (NIA) to investigate such cases.
So, the process is that at the time of the receipt of the offence, the officer-in-charge of the police station is to forward a report to the state government, which in turn would forward it to the Union government as expeditiously as possible.
After receiving the report, the Union government within 15 days determines on the basis of the said report whether the offence is a scheduled offence (under the UAPA) and is fit to be investigated by the NIA by considering the ”gravity of the offence” and ”other relevant factors.”
Further, it is to be noted that if during the investigation, the NIA after due consideration of the certain factors thinks it would be beneficial or necessary, it can ask the state government to be a part of the investigation.
With the prior approval of the Union government, the NIA also has the power to transfer the entire case, including the responsibility for the investigation and trial, to the state government.
Therefore, not all cases of the UAPA are investigated by the NIA, but even when a state government investigates these cases, it needs to follow the investigating procedure of the NIA.
This means the agency may seek assistance or cooperation from the government of the specific state where the offense took place.
It is important to mention here that the objective of the NIA Act was to constitute an investigating agency at the national level to investigate and prosecute offences affecting mainly the sovereignty, security and integrity of India, the security of the state and friendly relations with foreign states.
The NIA aims to set the standards of excellence in counterterrorism and other national security-related investigations at the national level by developing into a highly trained, partnership-oriented workforce, and holds importance over state police due to its specialised mandate and jurisdiction.
Superintendent of police has been given discretionary powers
Section 113 of the BNS states that whether a person would be booked under the BNS or the UAPA for a terrorist act will be decided by an officer not below the rank of superintendent of police (SP).
As a result, if an SP books a person under the BNS for a “terrorist act”, the state police will investigate the offence. However, if booked under the UAPA, the NIA would investigate the same crime.
This arbitrary power given to the SP, which was earlier not found in the IPC, means that it is now up to the SP to decide whether an offence should be investigated by an agency as specialised as the NIA or by the state police.
This discretionary authority vested in the SP raises concerns about potential arbitrariness in determining the course of the investigation and prosecution of offenses deemed as acts of terrorism.
The pivotal issue lies in the subjective interpretation by SPs to selectively book people under either of the statutes. How is the SP supposed to decide whether to book a person under the UAPA or the BNS when the definition of a terrorist act under both statutes is the same?
The absence of clear and objective criteria for invoking either of the statutes adds an element of ambiguity to the application of anti-terrorism laws. The expansion of the SP’s role from a law enforcement officer to a decision-maker with significant implications for the choice of investigative agencies introduces challenges to the uniform and impartial application of anti-terrorism legislation.
The powers of an SP can be misused to selectively book under the UAPA or the BNS
This further raises concerns regarding potential arbitrariness, favouritism and selective application.
In the context of a hypothetical scenario involving riots between Groups A and B, both potentially falling within the ambit of terrorist acts, the discretion granted to the SP becomes a pivotal factor.
The UAPA, with its expansive powers allowing searches, seizures and arrests based on the “personal knowledge” of the police without judicial validation, has been criticised for potentially infringing upon the presumption of innocence.
The provisions of the Act, allowing action against individuals for acts deemed “likely to threaten” or “likely to strike terror”, raise concerns about the principle of proportionality in punishment. The recent cases of Father Stanislaus Lourduswamy and journalist Siddique Kappan highlight the far-reaching implications of the UAPA’s provisions, including prolonged detention without bail and extended periods of custody without trial.
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The potential for the abuse of these provisions underscores the need for a thought-through and principled approach in the application of anti-terrorism laws.
In a situation where both Group A and B technically meet the definitions of offences punishable under both the UAPA and BNS, there is a risk of the SP’s decision being influenced by political considerations.
Suppose individuals from Group A are perceived as dissenting voices against the government’s ideology. The SP may selectively book them under the UAPA, utilising its stringent provisions to keep them incarcerated, while the other group may be charged under the BNS. This creates potential for the legal framework to be manipulated for political ends.
The risk of differential treatment based on ideological considerations poses a direct challenge to the principles of equality before the law and fairness in legal proceedings. The potential misuse of these powers could result in the suppression of dissenting voices and the erosion of fundamental rights.
Therefore, the intertwining of terrorism clauses in general law and the discretionary powers granted to the SP necessitate a robust mechanism for accountability, oversight and adherence to legal principles. Striking a delicate balance between national security imperatives and safeguarding individual rights becomes paramount to ensure the fair and just application of anti-terrorism laws, preventing their misuse for political ends.
Could lead to jurisdictional manipulation
The pivotal role of the SP in choosing between the UAPA and the BNS introduces a risk of jurisdictional manipulation for political purposes. As detailed above, in routine scenarios, the customary process involves the officer-in-charge forwarding a report to the state government, which then sends it to the Union government for analysis and potential assignment to the NIA under the UAPA.
In a hypothetical scenario, where a terrorist act occurs in a state, say like West Bengal, which characterised by political discord between the state and Union governments due to differing ideologies, the potential for misuse becomes apparent.
The SP’s decision to register a case under either the UAPA or the BNS determines the course of investigation. Further, intentionally or otherwise, the state police may register the case under the BNS to retain jurisdictional control and prevent the case from being forwarded to the Union government.
In cases of political divergence between the state and Union governments, ego-driven reluctance to transfer the case to the NIA could pose a challenge to effectively addressing the menace of terrorism.
This scenario poses a significant challenge, potentially leading to an obstruction of the prescribed legal process. The risk of selective application of anti-terrorism laws based on political considerations may undermine the principles of fairness, equality and the rule of law.
It is noteworthy that this issue may be less pronounced in states where the Union and state governments share similar political affiliations or ideologies. However, in regions marked by political divergence, the potential for abuse of discretion in the application of anti-terrorism laws requires careful scrutiny.
In a context where individuals are being subjectively and selectively charged under anti-terrorism or related laws, the courts lack authority to influence the choice of offences by the prosecuting agency.
The judiciary has a limited role before the case comes to it. The court’s duty is to adjudicate the case based on the charges presented, ensuring a fair and lawful trial without intervening in the executive’s discretion in selecting specific charges against the accused.
The statement of objects and reasons for passing these three criminal law Bills is that the government considers it expedient and necessary to review the existing criminal laws to strengthen law and order and also to focus on “simplifying legal procedure so that ease of living is ensured to the common [person]”.
So, we ask one simple question – will the common person have a better tomorrow with this duplication? You decide.
Sanjoy Ghose is a senior advocate at the Supreme Court of India and the Delhi high court. Prakhar Bajpai is a law student at the National Law University, Punjab.