The New Criminal Bills Allow the Govt to Decide Who Gets Booked and Who Doesn’t for the Same Act

The new Bills are actually quite colonial in the way that they give enhanced power to the state to assign meanings to words and actions.

Decolonisation is a delicate task. Among other things, it requires the difficult acknowledgment that there are always continuities in knowledge, and that the trick is not to be embarrassed by them, or conceal them, but rather to engage critically with colonial contributions to knowledge, and correct or adapt it where necessary, in order to redistribute power and expand freedoms in the present. 

On the other hand, decolonisation may also be imagined as an act of violent rupture from the past, where each new achievement is seen not as building upon (or even breaking apart) existing knowledge but as reconquest. Such a position views ‘civilisations’ as homogenous and isolated blocs in time and space, and decolonisation merely as reclamation (and not redistribution) of lost power. There is always the risk, then, that the process is reduced to a ‘civilisational’ show of supremacy and strength. 

Ironically, the denial of epistemological and cultural continuities with the past is very much a colonial mode of exercising control. Moreover, such repudiation results either in violent, yet often meaningless, ruptures like simplistic rendering of histories, or in some cases complete erasures – changing familiar names, altering architectural heritage or, and often at the same time, it also results in an unexamined acceptance of the underlying logic of colonialism which, put loosely, treats people as expendable to state power and profits. 

We seem to be living in such a moment at present.

A significant portion of state and populist discourse is framed around conquest, reconquest, and attempts to establish some sort of epistemic hegemony. We would rather be ‘vishwaguru’ (global teacher), implying a preference for benevolent domination, than ‘vishwamitra’ (universal friend), which might evoke something closer to decolonised, equal friendships. 

Also read: Shoddy Drafting Has Left the Government’s New Criminal Bills With Glaring Errors

It is also in this moment that the government has introduced three new Bills in parliament, with the objective of repealing the ‘colonial’ criminal laws comprising the Indian Penal Code of 1860, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1898 (reenacted in 1973). The new Bills are not mere amendments but apparently ‘decolonised’ laws for contemporary times.

It would be interesting to examine the continuities and the ruptures that are on display in the new Bills. It would also be worthwhile to see whether the attempt at ‘decolonisation’ manages to redistribute power.

How does the state organise power within the criminal justice system?

One of the tasks that laws perform is to ascribe meanings to everyday acts. They organise cognitive abilities such that certain actions are collectively recognised as being criminal, and certain others as not. 

Laws also arrange and organise acceptable forms of violence: an individual who confines another against their will, in order to coerce them into doing something, is committing an offence, unlike the state which may hold a suspect for six months without charge as a coercive interrogation tactic. 

Such arrangements of the law leave scope for inequity in the distribution of power between state and citizens. Yet this is tolerable, since there is a presumption of neutrality with the state. It is presumed that the state enforces restrictions only in the larger ‘public interest’, and does so equally with respect to different interest groups. The state is shorthand for nobility of purpose. 

These are rebuttable presumptions, of course. In a constitutional democracy, laws also provide space for groups and individuals to rebut the supposed neutrality of the state, or to try to shift the meanings ascribed to certain actions: to make the case, for instance, that six months of detention without charge in order to be able to interrogate under duress is unreasonable and a form of violence upon a suspect’s liberty. Of course, for the courts to recognise such detention by the state as any kind of violence would require a clear cognitive shift. 

Also read: Amit Shah Misled Parliament on Three Criminal Bills: Congress

The redistribution of power rests in such pulls and pushes over meaning. Colonial, authoritarian or majoritarian states (and their drafting committees) guard the power to assign meanings very jealously. Such states use both structural and direct violence as instruments of governance more frequently. They are more invested in organising cognitive abilities in a way that recognises state excesses not as violence but as nationalism; and correspondingly, all critique as “conspiracy”, “violence” or “terrorism”. 

Thus any attempt at decolonisation of criminal laws must naturally engage with the appropriations of meanings – and the push backs – as they have been playing out on the national scene in all too obvious ways. I have two dramatic examples in mind. 

The resurgent state’s right to meanings 

1. Nalini and the anti-CAA protests

The word ‘terrorism’ is associated with acts of spectacular, and generalised violence. To label an act as ‘terrorism’ is to completely delegitimise and to hollow it of all meaning and context. When an act is recognised as terrorism,  it deserves no more understanding or engagement.

In State of Tamil Nadu through Superintendent of Police, CBI/SIT vs. Nalini & 25 Ors. (1999) 5 SCC 253, a three-judge bench of the Supreme Court of India gave a concurring finding on whether the assassination of former Prime Minister Rajiv Gandhi amounted to a terrorist act. The court ruled that the assassination was an instance of political violence but did not constitute terrorism: 

“It is true, LTTE leaders were bitterly critical of the ‘India- Sri Lanka Accord’, which was signed on 22-7-1987. […] The mere fact that their action resulted in the killing of 18 persons, which would have struck great terror in the people of India, has been projected as evidence that they intended to strike terror in the people. We have no doubt that the aftermath of the carnage at Sriperumbudur had bubbled up waves of shock and terror throughout India. But there is absolutely no evidence that any one of the conspirators ever desired the death of any Indian other than Rajiv Gandhi. Among the series of confessions made by a record number of accused in any single case, as in this case, not even one of them has stated that anybody had the desire or intention to murder one more person along with Rajiv Gandhi except perhaps the murderer herself. Of course they should have anticipated that in such a dastardly action more lives would be vulnerable to peril. But that is a different matter and we cannot attribute an intention to the conspirators to kill anyone other than Rajiv Gandhi and the contemporaneous destruction of the killer also.” [Pages 298, 300].

Nalini was still  convicted and sentenced for murder under IPC Sections 302/34. However, one might argue that the judgement did recognise how politically loaded the term ‘terrorism’ is, and kept the state from classifying violence as such, at will. 

One of the last photographs of Rajiv Gandhi, taken just before his assassination, by the freelance photographer Hari Babu, believed to have been tasked by the LTTE’s Sivarasan. Tanu, the actual assassin, is standing behind the girl in a white shirt.

Years later, a resurgent state, appearing before the constitutional court, reclaimed the right to unilaterally delegitimise criticism.

In a judgement granting bail to Asif Tanha, Devangana Kalita and Natasha Narwal, who had been charged with terrorist offences for their role in actively mobilising crowds for the anti-CAA protests [Asif Iqbal Tanha vs. State of NCT of Delhi (Crl. A. 39/2021)], the Delhi High court had suggested that the state should desist from “foisting extremely grave and serious penal provisions, frivolously upon people” [Page 86, Asif]. The state appealed the judgement in the Supreme Court and, amongst other arguments, also made this odd reference to Nalini’s case: “If this judgement [the Delhi High court judgment granting bail] is to be accepted, the lady who assassinated the prime minister is also innocent, because in her mind also, she was only protesting”. 

The Supreme Court has admitted the appeal for hearing at a later date, but pending hearing, these barbs continue to hang heavy. This remark contains two implications: a) any bitter criticism of government action may (or may not) eventually result in assassinations of the leadership, and regardless of the actual end result, criticisms and public protests are inherently dangerous and constitute terrorist activities. 

Natasha Narwal and Devangana Kalita. Photos: Twitter/@SfiZhdc

Civil disobedience and criminal misdemeanours form a slippery slope towards political assassinations and must be treated as one of a series of conspiratorial terrorist activities. At the same time, the state regards only those political acts that are critical of it as dangerous; ugly and violent protests against its dissidents, performed by its allies, are not delegitimised; nor is ‘reactionary’ violence by the state and its allies, when apparently ‘provoked’ by dissident protests (thus ‘goli maaro’ escaped censure). Secondly,when described as ‘terrorism’, even a speech or acts of civil disobedience are deemed to be inherently violent and illegitimate. The state wishes to dispense with the legal requirement to find causal links between such political acts and actual instances of violence (caused by the same actors or with their tacit support). Note that even in Nalini’s case, the Supreme Court had ruled that even an assassination was not per se a terrorist act (that it was not without political meaning and context) and also that Nalini’s complicity in the actual violence had to be carefully proven. 

This new position is not borne out in existing law, particularly now after the latest Supreme Court judgement in the case of Vernon Gonsalves v. State of Maharashtra (July, 2023),where the Supreme Court, after a long gap, insisted on a prima facie and material link – as opposed to a political or rhetorical one – between the condemned figure of the dissident and actual violence.  

Yet, this very important judgement has been followed by fresh criminal complaints and arrests, as before. The state has even filed complaints against journalists, and fact-finding teams who blame the government for any violence on the same premise that any criticism of the government is itself mischievous, violent and illegitimate. The state must apparently not be censured or held accountable anymore. The reordering of ‘legitimate’ and ‘illegitimate’ violence has thus slowly been taking shape. 

2. Balwant Singh to Amulya Leona and Akbar Lone

On October 31, 1984 – the day that Indira Gandhi, then prime minister of India, was assassinated – two government employees, Balwant Singh and Bhupinder Singh, walked out of their offices in Chandigarh and raised certain slogans in a crowded public place. The prosecution claimed that the slogans they had raised included: “Khalistan Zindabad, Raj Karega Khalsa (long live khalistan, Khalsa will reign) and “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da (Hindus will be removed from Punjab, now is the time to rule)” They were immediately arrested and convicted of sedition under Section 124-A, and also of promoting enmity between communities under Section 153A. The Supreme Court, however, set aside their conviction by ruling thus: 

“The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the Government as established by law in India. […] Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans […] Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.” 

Also read: Is the Proposed Overhaul of the Criminal Justice System Decolonising or Recolonising the Law?

In 2020, Amulya Leona, then a teenager, was arrested on charges of sedition for shouting “Pakistan Zindabad (long live Pakistan)” from a public stage. She was whisked off even before she could properly complete the remainder of her sentence, which included “Hindustan Zindabad (long live India)” in a reference to global (post-colonial) solidarity. She remained in jail for nearly four months before she was granted default bail. 

More recently though, the state got an endorsement from the constitutional bench itself. During the constitutional challenge to the revocation of Article 370, the state raised an objection with regard to a past action of one of the petitioners. It claimed that, in 2018, the petitioner had raised slogans of “Pakistan Zindabad” in the State Assembly. 

Of course, actions in the Assembly are protected by ‘parliamentary privilege’ (Article 194 of the constitution), but even otherwise the petitioner’s conduct has no bearing on his rights to challenge the revocation in a court of law. However,  the constitution bench took the matter quite seriously, perhaps even thinking that to say “Pakistan Zindabad” really means “Hindustan Murdabad (death to India)”. If so, they neglected to regard another finding in the Supreme Court’s judgement in Balwant Singh’s case (although admittedly by a bench of lesser strength): 

It is not the prosecution case that either of the appellants had shouted the slogan ‘Hindustan Murdabad’. On what material did the learned Judge find that the appellants had shouted that particular slogan belies our comprehensions. Obviously, for convicting the appellants, the trial Judge also pressed into aid the allegation that the appellants had shouted ‘Hindustan Murdabad’, which is nobody’s case. The learned trial Judge, to say the least, seems to have drawn upon his imagination, a course not permissible for a Court of Law.”

Anyhow, the constitutional bench of the Supreme Court has now demanded from the petitioner an affidavit swearing allegiance to the constitution, which ironically grants him the right to shout all manner of offensive slogans, as long as they don’t cause immediate violence. 

Asaduddin Owaisi tries to stop Amulya Leona from shouting ‘Pakistan zindaband, Hindustan zindabad’. Photo: PTI

The state has managed to efficiently attach the spectre of violence to certain political speeches/acts, while also removing any need to show actual violence in order for a speech/act to be deemed ‘violent’. 

Over time, consecutive governments first succeeded in attributing disaffection to those who shout “Pakistan Zindabad”, and then imperceptibly turned them into constitutional outcasts, unworthy of the protection of the rule of law.

The committees speak only to the Shahs, and the Shahs speak only to God*

In 2020, The Ministry of Home Affairs appointed an all men’s ‘Committee for Reforms in Criminal Laws’ to review existing laws and ‘recommend reforms in a principled, effective and efficient manner’. Three years later, in 2023, the Committee came out with the draft Bills.

Some of the shifts in meaning described above are recent, having taken place after the new Bills were drafted, but the small pushes have been taking place for years now. While the Supreme Court reaffirmed that fundamental rights cannot be suspended in principle,in the case of Justice K.S.Puttaswamy (retired) v. Union of India (2017), the state has been finding exceptions to the general rule: couldn’t they be suspended for a very short period in Kashmir, when minors had to be detained? Could the right to protest not be suspended for three days over G20, when we must all put our best foot forward? Could we not suspend the right to liberty for ‘constitutional outcastes’ of suspect loyalty? 

*Borrowed from the poem about the Bostonian oligarchs, also known as the Boston Brahmins. A handful of families had acquired massive wealth and cornered all economic activity, partially by keeping all decision-making powers to themselves, and justifying it by invoking their own apparent superior moral sense and nobility of purpose. 

Here’s to dear old Boston, the land of the bean and the Cod; 

Where the Lowells speak only to Cabots 

And the Cabots speak only to God.

How could the committee for decolonisation of criminal laws miss these questions? 

It is only a testimony to its complete control over ascription of meanings that the present government is able to invert, or change meanings as quicksand. In its deft hands, the same acts are either delegitimised, or deemed completely legitimate. This uncertainty of meanings deserves a pushback too, for it allows the government to apply its own low standards of ‘political criminality’ rather selectively – some are able to disavow the Indian constitution or make vitriolic speeches about constitutional values with impunity, while others aren’t able to criticise state action without being deemed treacherous. 

How did the drafters of ‘decolonised’ laws not engage with the quietly looming figure of the ‘political prisoner’ in India? How did they neglect to respond to the death in custody of Father Stan Swamy?

In the event, the new Bills crystallise the shifts in meaning that the state has ostensibly been wanting. The new Bills formalise much that was happening in the dark recesses of the criminal justice system, or in the spaces between the pushes and the pushbacks in the constitutional courts. They also bring into the criminal justice mainstream the exceptionalism of ‘security laws’ such as Armed Forces (Special Powers) Act (AFSPA) and the Unlawful Activities (Prevention) Act (UAPA) etc by heightening police powers in a deliberate, visual way – the right to use ‘any means necessary’ on the suspect, and the new right to handcuff. 

In terms of meanings, the new penal code Bill introduces an open-ended offence of ‘subversive activities’: it could be any political act that the state wishes to delegitimise. It also reiterates a broad and vague definition of ‘terrorist acts’, which could cover a wide range of legitimate protests. 

The new Bills introduce new substantive offences that again organise meanings and reorder violence in specific ways. Significantly, it recognises mob lynching as a separate offence, where the motivation for violence is the victim’s identity alone. However, the sentence is discretionary and may be reduced to seven years, which is less than a ‘normal’ murder sentence of life imprisonment or death. It suggests that to lynch is bad, but not quite as bad as ‘murder’. Pointedly, the sentence for concealing one’s identity before marriage, in an approximation of the “love jihad” narrative, is ten years (clauses 69 and 80). 

The new Bills are actually quite colonial in the way that they give enhanced power to the state to assign meanings to words and actions, and also mechanical for having reproduced large parts of what they had set out to ‘decolonise’. But, to be fair, the new procedural code is also mindful of housekeeping challenges in the system: there is an obvious attempt to address pendencies and be efficient, primarily by denying strategic adjournments to parties, though not by making it difficult for the state to make superfluous arrests, which would automatically lessen the number of cases.

In the final analysis, the most dramatic rupture here is the trusty name-change. On the other hand, the continuities in terms of consolidation of state power are writ large across the three new Bills, and more consequential. 

Shahrukh Alam is a lawyer who practices in Delhi.