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Law

The Three Criminal Law Bills: Using Criminal Law to Establish Permanent Extra-Constitutional Emergency Powers

“Don’t give them space to breathe!” Twelve changes to criminal law in the three Bills introduced in parliament in August, 2023 will create a quantum leap in the power of the government, if and when it so wishes, to silence dissent and opposition and shut down public discourse, choking all channels that communicate conflicting news or views to the people.

In Strong Societies and Weak States (1988, Princeton University Press) Joel S. Migdal quotes Eugene Weber’s Peasants into Frenchmen (1976, Stanford University Press), “In one section of France, the evening prayers of peasants long included the line, ‘Deliver us from all evil and from justice.’” If the three bills presented to Parliament by the Union Government in August this year to replace the Indian Penal Code, 1860, the Indian Evidence Act, 1872 and the Criminal Procedure Code,1973 are enacted into law, we Indians would do well to also incorporate in our daily prayers a plea to “deliver us from criminal justice”.

On August 11, 2023 the Union Government introduced three new Bills in the Lok Sabha to replace the Indian Penal Code, 1860 (the Bharatiya Nyaya Sanhita Bill, referred to here for ease of reference as “BNS-IPC”) the Indian Evidence Act, 1872 (the Bharatiya Sakshya Adhiniyam Bill, referred to as “BSA-IEA”) and the Criminal Procedure Code, 1973 (the Bharatiya Nagarik Suraksha Sanhita Bill referred to as “BNSS-CrPC”).

Quantitatively, the bills only change some 20%-25% of the law in the three current statutes

Qualitatively, the changes consist mostly of an extensive (and entirely needless) re-ordering and re-numbering of the provisions to pretend that the laws have been slimmed down; several anodyne amendments to facilitate electronic proceedings; several largely non-consequential changes of nomenclature; and yet another unrealistic legislative attempt to set timelines on court proceedings.

The changes also include long demanded de-criminalisation of the attempt to commit suicide (except when directed against public officials, see below), homosexuality (although the wholesale deletion of S.377, IPC will create a number of serious issues) and adultery (although there is some indication that a gender-neutral prohibition on adultery may be demanded by the BJP-run select committee). There are welcome changes on gender equalisation and clearer criminalisation of gang rape of women below the age of 18, use of a child to commit offences, lynching and snatching. The amendments also mandate videography during some of stages of investigation. There are controversial changes criminalising sexual intercourse by employing deceitful means and replacing the concept of ‘incapability to form intent’ with ‘mental illness.’

Twelve chilling changes

What is crucial and requires very close public attention, however, are a dozen chilling changes to the law that have the potential to liquidate liberty, decimate democracy and fundamentally change the face of our polity from democratic to authoritarian should the government decide to deploy any or all of these changes to their fullest extent.

Six of the 12 sets of changes create powerful weapons to silence dissent, decimate opposition and shut down public discourse. Of these, three sets of changes add new weapons for targeted, biased, political persecution (TBPP) through prosecution and incarceration of individuals and organisations deemed by ruling ideologue to be its enemies; two attack direct democratic action; and one is a partisan exercise of legislative power to facilitate the Sangh Parivar’s work against democracy.

Five other sets of changes exponentially enhance police raj.

The 12th set of changes intensifies the pain and suffering of those who are targeted for democratic thought and action through enhanced incarceration, including in police custody. It seems also like a frisson of schadenfreude for the rulers (pleasure derived from another person’s suffering).

Taken together, these 12 changes, in conjunction with cognate changes not detailed here, will result in a quantum leap in the power of the government to use criminal law, if and when it so wishes, as an effective weapon to silence dissent and opposition and shut down public discourse, choking all channels that communicate conflicting news or views to the people.

The Bills, if enacted, will establish permanent extra-constitutional emergency powers in India through statutory means. Future governments are unlikely to surrender this power or revoke this extra-constitutional emergency. What makes this possible is that these new criminal laws do not reflect constitutional morality. They have no in-built constitutional constraints. They are anti-Constitutional in letter and spirit. The overall aim of the two Sanhitas and the Adhiniyam may perhaps best be summed up by the sentiment expressed recently by the Right Hon’ble Lieutenant Governor of Jammu, Kashmir and Ladakh: “Don’t give them space to breathe!”

We are without doubt at a dawn that comes before a night of deep darkness.

Illustration: Pariplab Chakraborty.

The first three changes discussed create new weapons for targeted, biased, political persecution (TBPP) through prosecution and incarceration against those who are deemed enemies of the ruling ideologues

I. Arbitrary power to label non-violent democratic action as ‘terrorism

The first of the chilling statutory changes gives the government arbitrary power to label virtually any non-violent action for democracy or social, political or economic justice, or any non-violent dissent, protest or opposition, or public discourse that conflicts with the government narrative, as “terrorism” and unleash the full force of anti-terrorism laws to smash and silence it.

The current draconian definition of terrorism in the Unlawful Activities (Prevention) Act, 1967 (UAPA) includes enumerated violent acts that aim to “threaten or [are] likely to threaten the unity, integrity, security, economic security, or sovereignty of India or [are done] with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country”.

Clause 111(1)(iv) of BNS-IPC widens the UAPA definition of terrorism in two ways. (1) Under UAPA an act must be a violent act to be considered a terrorist act. BNS-IPC adds peaceful, non-violent acts to the definition of terrorism if they meet other relevant criteria. As a result, under BNS-IPC even a non-violent act, or a mere expression through speech or writing will fall within the definition of terrorism. (2) Under UAPA an act should “strike terror in the people or any section thereof” in order to be a terrorist act. BNS widens the net of terrorism and makes all acts that “intimidate the general public or a segment thereof” to be considered terrorist acts. BNS-IPC also adds a very broad criterion of “disturbance of public order” to the definition of terrorist act. BNS-IPC also adds a new ground to the definition of terrorism to further widen its net: an act is terrorist if it “destabilises or destroys the political, economic, or social structures of the country”. This last ground echoes the European Council Framework Decision of 13 June 2002 under which terrorism is defined as offences under national law committed with the aim of “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation”. The BNS-IPC definition drops the European requirement that only “offences” established under a statute can be included in the definition of terrorism. BNS-IPC also drops the European Council requirement that in order for an act to be considered a terrorist act, the “destablisation” or “destruction” must be of a “serious” nature and the political, constitutional, economic or social structures attacked must be “fundamental” structures. This way, BNS-IPC greatly broadens the ambit of its definition of terrorism well beyond accepted legal limits.

Also read: How Consultative Was the Framing of the Three Criminal Law Bills, Really?

The Constitution of India (Article 38) unambiguously calls on the State to secure a social order for the promotion of welfare of the people in which justice — social, economic and political — shall inform all institutions of national life. The Constitution commands the State “in particular, [to] strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.” These changes cannot be done without non-violently ‘destroying’ and ‘destabilising’, to a greater or lesser extent, the feudal, theocratic social, political and economic order that has dominated the country for centuries. These changes will inevitably ’divide’ people into those who want the revolutionary changes and the elites who oppose them and are ‘intimidated’ by them. The BNS-IPC provision puts all peaceful movements for revolutionary social, political and economic changes at risk of being prosecuted as “terrorist” movements (these may include for example Dr B.R. Ambedkar’s call for “annihilating caste” and movements against patriarchy or capitalism). In this context, it is significant that acts against the “social structures of the country” which are not in the UAPA definition of terrorism have been included in the BNS-IPC terrorism definition. This appears to signal an intention to use anti-terror tools to fight social reform that threatens the current caste-based social order.  The significance of the convenient omission of attacks on the constitutional structure from the BNS-IPC definition of terrorism is discussed later in this article.

The new and open-ended provisions on terrorism introduced in BNS-IPC will co-exist with already existing sweeping criminalisation of terrorism under The Unlawful Activities (Prevention) Act, 1967 which includes three chapters on terrorism.  These two sets of laws against terrorism are not identical. Those prosecuted for terrorism under BNS-IPC will not be able to avail of (the slim) protection measures available to them under the UAPA provisions and the special courts established under them. Those targeted could be prosecuted and convicted under both sets of laws and face interminable imprisonment. We may presume that this heavy deterrent against questioning the established social structure on pain of punishment for terrorism is intended to preserve the inequitable social structure of the country and to stave off much needed, revolutionary, peaceful social change envisaged in the Constitution.

II. Sedition is reborn as sedition plus — in a more vicious avatar

The second attack against liberty, democracy, dissent and opposition is the new channel that BNS-IPC opens up for targeted, biased, political persecution (TBPP) through prosecution and incarceration  of opponents and dissidents through the creation of a new, ill-defined, over-broad mega-crime (“Acts endangering sovereignty unity and integrity of India”, Clause 150 of BNS-IPC). Clause 150 criminalises five activities: (1) “subversive activities”; “(2) secession”; (3) “separatist activities”; (4) “endangering sovereignty, unity and integrity of India.” and “armed rebellion”. None of them is statutorily defined, leaving unbounded discretion to the police and political executive. Clause 150 criminalises three types of ridiculously vague and undefinable methods by which these five activities may be undertaken: (1) “exciting” people in support of these prohibited activities, (2) “creation of excitement amongst people” in a positive way towards these activities; and (3) encouragement of feelings amongst people” in favour of these activities. Clause 150 creates four prohibited instruments through which such crimes may be committed. Two are new:(1) electronic communication; and (2) financial means. Three are copied from IPC Section 124A (sedition): (1) “words, either spoken or written”, (2) “signs” or “(3) visible representation”. These prohibited activities, methods and instruments are defined using such broad and vague language that any government will be able to target virtually anyone who the government wants neutralized or silenced, and to crush honest, democratic and non-violent expressions of dissent and opposition in the same way as has been done from colonial to contemporary times under Section 124A (sedition).

Section 124A of the Indian Penal Code (IPC) (sedition) is not included in BNS-IPC. The Union claims this deletion of Section 124A is a liberal revision of criminal law. The IPC crime of sedition is basically ‘the creation of, or any attempt to create’, one or more of five sets of negative attitudes towards the government: (i) “hatred” (ii) “contempt” (iii) “disaffection”; (iv) “disloyalty”, and (v) “enmity”. While deleting Section 124A, Clause 150 of BNS-IPC criminalises a much broader range of activities arising from such attitudes. Clause 150 is a reincarnation of Section 124A in an even more vicious avatar — sedition is dead, long live sedition plus!

Illustration: Pariplab Chakraborty.

III. Enabling targeting of dissidents and political opponents

The third attack on democracy is also, like the first two, a new legal weapon for targeted, biased, political persecution through prosecution (TBPP) against those who do not fall in line with the government and its social, economic and political masters (in addition to the two just discussed). This weapon consists of implicating its victims in organised crime (Clause 109) and petty organised crime (Clause 110). Existing draconian laws on organised crime such as Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and Karnataka Control of Organised Crimes Act, 2000 (KCOCA) provide definitions of organised crime. Under MCOCA and KCOCA “organised crime” is defined as “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”. The United Nations Convention against Transnational Organized Crime, 2000 also provides an established definition of organized crime: “Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group.” In contrast, BNS-IPC introduces a new definition of organised crime that is riddled with lack of clarity: “Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prostitution or ransom by the effort of groups of individuals acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of  such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit, shall constitute organised crime.” If there was need to create a new national offence on organised crime, why is a new and thoroughly confusing definition of organised crime used rather than the relatively clearer definitions that are available in state legislation and internationally — if not just to be able to misuse and abuse the provision to pursue and neutralise political and ideological opponents? If the intention is to seriously address the very grave problem of organised crime a professional and bona fide approach to the drafting of the offence is required.

IV. Attacking fasting as political protest

The fourth assault on our democratic rights is the criminalisation of the use of fasting as political protest — an instrument often used by the most powerless (for example, prisoners in jail) to fight for their human rights.  While de-criminalising attempted suicide as a general matter, BNS-IPC Clause 224 (“Attempt to commit suicide to compel or restraint exercise of lawful power”) says, “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.” Its main purpose appears to only be to prohibit the use of fasting as a political weapon.

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

V. Encouraging force against assembly of persons

The fifth attack on our democratic rights is a strong statutory signalling by BNSS-CrPC to the police that force may be used against assemblies of people. Section 130 of the Cr.P.C. currently provides that if any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. Clause149 of BNSS-CrPC tweaks this provision and says that in such circumstances the District Magistrate or any other Executive Magistrate authorised by him, who is present (i.e., regardless of whether he is of the highest rank) may cause it to be dispersed by the armed forces.” The tweaking serves as statutory signalling encouraging use of force to disperse assemblies of people.

VI. Shielding the Sangh parivar

The sixth attack is a partisan change of criminal statute in favour of the Sangh parivar, shielding it it from legal liability and allowing it greater space to operate against democracy.

As noted earlier, the BNS-IPC definition of terrorism mirrors in part the European Council Framework Decision of June 13, 2002 under which terrorism is defined as offences under national law committed with the aim of “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation”.

Although attacks on the Constitutional structure are established offences under IPC and BNS-IPC including, for example, as attacks on the unity and integrity of India, it is very significant that the BNS-IPC definition of terrorism consciously omits attacks on the “constitutional structure”. As a result, an act to destroy or destabilize the “constitutional structure” of India would not be a terrorist act under BNS-IPC, terrorism whereas an act to destroy or destabilise the social structure of India (e.g, Varna system) would be a terrorist act even if it is not serious or fundamental! This customisation of the European definition of terrorism to omit attacks on the Constitutional structure of India from the definition of terrorism will allow the Sangh parivar to pursue its stated agenda of building a Hindu Rashtra polity in India which necessarily requires the destruction or destablisation of the current Constitutional structure, whether by stealth or by direct means, without it becoming terrorism. At the same time, as noted earlier, BNS-IPC also makes it possible to stave off all acts seeking to destroy or destabilise the traditional, feudal, casteist social structure by including such acts within the definition of terrorist acts.

A 2005 amendment had inserted section 153AA into the IPC which criminalised carrying arms in any procession or organising or holding or taking part in any mass drill or mass training with arms in any public place in contravention of any public notice or order issued or made under section 144A of the Code of Criminal Procedure, 1973 (2 of 1974), with arms being defined as “articles of any description designed or adapted as weapons for offence or defence and includes firearms, sharp edged weapons, lathis, dandas and sticks.” It is another matter that the Sangh parivar is so powerful regardless of which party rules India that Section 144A, CrPC (“power to prohibit carrying arms in procession or mass drill or mass training with arms”) is yet to be brought into force through a simple notification, 18 years after its enactment. The two Sanhitas have quietly deleted both these provisions so that the Sangh parivar can happily continue armed training of its cadres without legal impediment.

BNS-IPC Clause 101 introduces a new specific punishment for lynching which is defined as “murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground”. “Religion” is conveniently and noticeably left out as an enumerated ground.

VII. Exponentially enhancing police raj

The seventh change proposed by the Bills puts a crucial power in the hands of the police, which is a potential recipe for police excess. A draconian new BNSS-CrPC clause (Clause 172) provides that “All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty…”  The clause also provides that “A police officer may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction given by him… and may either take such person before a Judicial Magistrate or, in petty cases, release him when the occasion is past.”. Although the coercive action by a police officer detaining a person would in the eyes of Constitutional law be an arrest, the suggestion seems to be that the detention may be done without complying with the Constitutional and statutory requirements for arrest.

 VIII. Bringing back handcuffs

The eighth attack against Constitutional rights undermines decades old judicially created restrictions against use of handcuffs. In the 1978 judgment in Sunil Batra v. Delhi Administration the Supreme Court said, “Fetters, especially bar fetters, shall be shunned as violative of human dignity, within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in a small category of cases dealt with next below. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.” Two years later, the Supreme Court reiterated in Prem Shankar Shukla v. Delhi Administration, “To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our Constitutional culture.” Undermining the Constitutional ethos that lies behind these judgment, Clause 43(3) of BNSS-CrPC provides that “The police officer may, keeping in view the nature and gravity of the offence, use handcuff (sic) 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.” This mechanical enumeration of specific crimes in which the police may use handcuffs will be applied as statutory licence to routinely use handcuffs in most, if not all, cases involving the listed offences. It will then soon infect the general police practice and resurrect the medieval culture of routinely shackling human beings.

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

IX. Maximising police custody

The ninth attack on our freedom is the maximisation by BNSS-CrPC (Clause 187 (2)) of dreaded police custody during investigation. Under current law, as held by the Supreme court of India in State (Delhi Administration) vs. Dharam Pal (1982) and CBI vs. Anupam J. Kulkarni (1992), the accused can be sent to police custody only for up to fifteen days within the first fifteen days of the accused being presented before the Magistrate after his or her arrest, even if the actual number of days for which the police may get custody in that period is less than fifteen days. Clause 187 (2) of BNSS-CrPC over-rules this judicial dictum and provides that the Judicial Magistrate may give police custody for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of the maximum detention period of sixty days (for offences punishable with imprisonment for less than ten years) or ninety days (for offences punishable with death or imprisonment for life or imprisonment for a term of not less than ten years). As a result, the threat of police custody will hang over the heads of the accused during the entire investigation period.

Illustration: Pariplab Chakraborty

X. Forcing provision of biometrics

The tenth attack on peoples’ Constitutional right to privacy is the unreasonable and excessive compulsion created against all persons to provide specimen signatures, finger impressions, handwriting or voice samples in connection with an investigation even if he or she is not an accused person. Clause 349 of BNSS-CrPC provides that a magistrate “may direct any person, including  an accused person, to give specimen signatures or finger impressions or handwriting or voice sample”  Clause 349 of BNSS-CrPC mainstreams and integrates into the “mother” penal law the provisions of the recent Criminal Procedure (Identification) Act, 2022 which gives power to a police officer or a prison officer to compulsorily take from convicts and persons arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law “measurements” (including finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure,1973 (except that a person arrested other than for an offence committed against a woman or a child or for an offence punishable with imprisonment of seven years or more) is not obliged to allow taking of biological samples). The impact of clause 349 of BNSS-CrPC is that even persons not falling under the Criminal Procedure (Identification) Act, 2022 (i.e., convicts and arrested persons) will also now be liable to be forced by a magistrate to provide her or his “measurements”.

XI. Enhancing discretionary power of police

The 11th change that enhances the discretionary power of the police in relation to crimes committed against powerless victims is the reversal of the direction of the Supreme Court of India in Lalita Kumari vs. Government of Uttar Pradesh (2014) that every information received by a police station must be recorded as a first information report and investigated even if the police is not satisfied with the reasonableness or credibility of the information. This judicial decision responded to the reality that powerful people can ensure that no FIR is registered and no investigation is conducted based on information provided by powerless people with respect to crimes committed by the powerful against them. Clause 173(3) of BNSS-CrPC would now make the recording of a FIR discretionary for the police. The police will have the power to conduct a preliminary enquiry to ascertain whether there exists a prima facie case before proceeding to investigate information alleging commission of a cognizable offence punishable with imprisonment between three years and seven years.

XII. Intensifying the pain of imprisonment

The 12th attack on democracy is the enhancement of incarceration. While there is a poorly developed and limited introduction of community service as a limited alternative punishment, the Bills increase the length of imprisonment virtually across the board, almost routinely. The Indian list of capital offences and offences punishable with life imprisonment was already much too long for a democracy under existing law, reflecting the draconian approach adopted by even social democratic governments that largely ruled India until a decade ago.  The new Bills add at least three new capital offences and six life sentences to this list. While life imprisonment that must mandatorily last for the remainder of the convict’s natural life (as against 14 years) is now confined to a few offences, Clause 4(b) of BNS-IPC makes imprisonment for the remainder of the convict’s natural life the only form of life imprisonment in India. The possibility of house arrest of under-trials is ruled out by the new BNSS-CrPC Clause 187(5) which provides that “no person shall be detained otherwise than in police station under police custody or in prison under judicial custody or place declared as prison by the Central Government or the State Government.” Under-trials from marginalised social groups constitute the bulk of inmates in India’s over-crowded and inhumane prisons where their incarceration becomes punishment even before they are convicted. Closing this door and forcing them all to be in jail, shows that one of the objectives of these reforms is to make the process the punishment.

The new laws seek to make a Stan Swamy of us all.

Also read: Know The Three New Criminal Bills: What’s New and What’s Old?

Overview and conclusion

We have had several law commission reports and reform committee reports that have recommended changes to criminal law over the years — indeed it has been one of the principal topics of the work of the law commission. We have always been able to understand and analyse the goals and rationale guiding proposed amendments to the law from these reports. This is the first time, however, that we do not have the benefit of the report of the committee that drafted three new statutes because, if there is such a report beyond the draft, it is not publicly available. A very important unanswered question is why was it necessary to repeal the existing laws and enact three new laws? Separately, it must be noted that the draft Bills are riddled with drafting errors and typos.

In a reference to the then still draft Indian Penal Code, Thomas Macaulay, the principal draftsman of the Indian Penal Code, said in a speech delivered to the U.K. House of Commons on the 10th of July 1833, “We propose no rash innovation; we wish to give no shock to the prejudices of any part of our subjects. Our principle is simply this; uniformity where you can have it: diversity where you must have it; but in all cases certainty.” If there is anything colonial that has been rejected in the new language proposed in the two Sanhitas and the Adhiniyam, it is this precept. At least for now, however, this precept remains a part of the inviolable Constitutional basic feature of “the rule of law”.

The overall flavour of the changes sought to be made by the new statutes is captured by a relatively minor change of vocabulary. The current Indian Penal Code refers to the local and district criminal courts as “courts of justice”. There are at least some 39 such references in the IPC. This vocabulary is a gentle reminder to the judges who sit in these courts that they are guardians of justice, sitting as sentinels against injustice by the executive, that they are not mere extensions of the law and order machinery, not police in black more concerned with increasing conviction rates (a main goal identified by the Union in this reform exercise) and throwing people in jail than with justice. Sadly, the new BNS-IPC entirely drops the term “court of justice” and refers to these courts merely as “courts”. Perhaps the drafting committee found that “justice” is a colonial idea that had to expurgated from criminal law.

It is clear that the ethos of these provisions is not drawn from our secular, democratic, republican constitution and its idea of the rule of law and power emanating from the people. It is drawn from the ethos of religion — where dharma, laid down by God and administered by rulers and priests, is the source of law and is to be obeyed unquestioningly by people. The names of the Bills are significant in this regard: Bharatiya Nyaya Sanhita (the collection of Bharatiya justice which is based on Sanatana Dharma); Bharatiya Nagarik Suraksha Sanhita (the collection of Bharatiya security for citizens, drawn from Sanatana Dharma); and Bharatiya Sakshya Adhiniyam (the law of Bharatiya Evidence). The name “Bharatiya Nyaya Sanhita” for the keystone law is of special significance. Although the literal meaning of the word “Sanhita” is “collection”, it is widely understood as referring to a collection of hymns and mantras in each of the Vedas. The Manusmriti, known for its discriminatory content, is also known as a Sanhita. This is the first time that a statute in India is being given a theocratic name — not any “ordinary” statute, but the most consequential legal instrument in our country after the Constitution. This change of nomenclature reveals the intent and essence of the criminal law reform. It is a modest start of the process of shifting the foundation of our legal system from constitutional to theocratic, the shilanyas of the construction of a Hindu legal system in India.

There is not a single liberal strand in any of the changes made in the law. The entire IPC toolkit now selectively targeted against liberal voices is retained in the new Sanhitas including ‘promoting enmity between different groups on grounds of religion, race, place of birth, residence, language and doing acts prejudicial to the maintenance of harmony’; ‘statements creating or promoting enmity, hatred or ill-will between classes’;‘imputations prejudicial to national integration’;‘deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs;’ and ‘uttering words, etc., with deliberate intent to wound the religious feelings of any person’. An epochal change such as the introduction of an entirely new set of criminal laws is also a huge missed opportunity to correct the skewed balance in our criminal law in favour of protecting state power and wealth as against protecting individual rights.

The Union home minister has repeatedly said that the purpose of the reforms is to decolonize criminal law and put in place laws “imbibed with the Indian soul”. This is far from the truth. That the aim of the new laws is to decolonize criminal law is at best a populist political claim. The fact, in the words of a scholar of the subject, is that “criminal law in the British Empire was neither fully benevolent nor fully despotic, constrained by race and inequality in one direction, and constitutionalism and an ideological adherence to the rule of law in the other.” The Union government’s proposed amendments embrace, retain and enlarge most of the despotic colonial content of the Indian Penal Code, in letter and in spirit. The colonial soul is safely ensconced in the two Sanhitas. On the contrary, what is decolonised is the progressive content of the colonial code such as the ideologies of constitutionalism and the rule of law.

The Supreme Court will face one of the greatest tests in its history when the constitutionality of the three Bills are challenged once they are enacted.

Criminal law deeply affects the common masses. Apart from crimes committed by the state and powerful segments of society, crime is for the most part violence by poor males against poor males and females. The common people of India will therefore look to the Supreme Court for an accurate determination of the existence, non- existence, nature or extent of their fundamental rights and the protection of these rights against the all-powerful state, not a balancing of their rights against the interests of an anti-Constitutional ideological movement acting as the government of the day.

G. Mohan Gopal is an advocate, Supreme Court of India and a renowned legal academician.