What happens when the foundation of justice is reshaped without broad consensus? Legal reforms require collective buy-in to ensure fairness, transparency, and alignment with societal values. Without consensus, the very bedrock of justice becomes unstable, potentially leading to unintended consequences and social discord.
India experienced a seismic transformation in its legal landscape with the enactment of three new criminal laws effective from July 1, 2024 – the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya SakshyaAdhiniyam (BSA). These laws were heralded as bold steps towards modernising and decolonising India’s criminal justice system. However, their swift implementation has sparked vigorous debate and raised profound concerns among legal scholars and civil society alike.
Let’s delve into the pivotal provisions of these new laws, their far-reaching implications, and the controversies they have ignited. While advocates argue for their necessity, we advocate for repealing the controversial new laws and critically reassessing essential amendments within the framework of the existing Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA).
Lack of Transparency and Scrutiny
Despite the existence of parliamentary committees tasked with reviewing bills, the new criminal laws seem to have sidestepped crucial recommendations. Experts, legal scholars, and civil society organisations had limited time to analyse and provide feedback. As a result, significant suggestions – pertaining to individual rights, due process, and potential misuse – were overlooked. This lack of transparency undermines democratic principles and raises concerns about the robustness of the legislative process. The hasty enactment of these laws without comprehensive scrutiny and expert input has sparked debates about transparency, accountability, and the need for a more inclusive approach to legal reforms.
BNSS: Handcuffing and Preventive Detention
The BNSS has been particularly controversial due to provisions that grant police the authority to handcuff individuals, contravening previous Supreme Court judgments. This practice is seen as a violation of constitutional rights and a threat to individual liberties by experts. Additionally, the broad powers for preventive detention pose a significant risk of misuse by law enforcement, potentially leading to arbitrary detentions and undermining the principles of natural justice and due process.
Trials in Absentia and Commutation of Sentences
The BNSS introduces the provision for trials in absentia, allowing legal proceedings to continue even in the absence of the defendant. While this aims to prevent delays in the judicial process, it raises significant apprehensions about adherence to natural justice principles. The right to a fair trial includes the defendant’s presence to confront witnesses and participate in their defence; thus, conducting trials without the defendant risks miscarriages of justice.
Additionally, sentence commutation – the government’s ability to alter sentences, such as reducing a life imprisonment term or granting parole – has been impacted by the revised Section 475. Previously, the government had the discretion to consider factors like good behaviour or health when commuting sentences. However, the new laws limit this flexibility, making sentences less responsive to individual circumstances. For instance, under the old system, a person convicted of a non-violent offence who demonstrated exemplary behaviour could have their sentence commuted to an early release. The revised Section 475 restricts such options, potentially diminishing the justice system’s capacity for fair and compassionate sentence reviews.
Reintroduction of Sedition Law
The BNS reintroduces the sedition law under Section 150, despite its controversial colonial history. This provision criminalises speech, writing, or actions deemed to promote disaffection against the government, posing a significant threat to democratic expression. The law’s reintroduction could have a chilling effect, discouraging individuals from voicing dissent or criticising the government for fear of being labelled seditious, thus stifling legitimate criticism, artistic expression, and peaceful protests.
Additionally, Section 111 of the BNS incorporates ‘terrorist offences’ into ordinary criminal law, mirroring provisions from the Unlawful Activities (Prevention) Act (UAPA) but without requiring specific sanctions. This blurs the lines between ordinary criminal offences and terrorism-related crimes, raising concerns about potential misuse and lack of due process. For instance, peaceful protesters, satirical artists, social activists, and investigative journalists could be unfairly targeted under these broad provisions, undermining civil liberties and the spirit of democracy.
Gender-Specific Laws and Inadequate Penalties for Mob Lynching
The new criminal laws continue to use gender-specific language, which assumes that only women can be victims of sexual assault, ignoring cases where males are victims and females are perpetrators. This perpetuates stereotypes and creates legal barriers for male survivors, who may hesitate to come forward due to societal stigma.
Additionally, the BNS imposes inadequate penalties for mob lynching, such as minimal sentences or fines, failing to deter violent acts. For example, in a mob attack based on rumours of cow slaughter, the attackers often receive insufficient punishment, perpetuating a culture of impunity. To ensure justice and protect society, the laws must adopt gender-neutral language and impose stronger penalties for crimes like mob lynching.
Misuse of Confessions and Electronic Evidence
The BSA retains the potential for misuse of confessions made to police officers. Without additional safeguards, coerced confessions could be admitted as evidence, compromising the integrity of the justice system. Furthermore, the lack of a legally mandated framework for the search and seizure of electronic devices is a significant oversight, risking individual privacy and the lawful handling of digital evidence.
Cultural and Linguistic Concerns
The new criminal laws have been given Hindi-language titles, which poses significant challenges for people in non-Hindi-speaking states. This creates difficulty in understanding the laws for those who do not speak Hindi fluently, neglecting India’s rich linguistic diversity and regional identities. The imposition of Hindi titles has sparked controversy and debate about linguistic inclusivity and the need for a more accessible legal language.
India’s Constitution recognises multiple languages and emphasises the use of regional languages in official documents, making the imposition of Hindi titles potentially misaligned with these provisions. For example, Tamil speakers in Tamil Nadu and Bengali speakers in West Bengal face difficulties understanding legal terms presented in Hindi. This undermines the respect for linguistic diversity and rejects the notion that laws are accessible to all citizens, regardless of their language background.
Implications for the Judicial System
Indian courts already face an enormous backlog of pending cases, with millions of litigations awaiting resolution across district, high, and supreme courts. The introduction of complex new criminal lawscould exacerbate this backlog. Courts will need to allocate additional time and resources to interpret and apply these laws, further delaying existing cases. For example, in a long-standing land dispute, the court must now consider the impact of new laws on land-related offenses, complicating an already intricate legal battle and prolonging uncertainty for the litigants.
Similarly, in a cybercrime case involving financial fraud, the introduction of new provisions related to cyber offenses under the BNSS could slow down the trial, affecting the livelihoods and emotional well-being of the accused, victims, and witnesses. The judicial system’s ability to handle the influx of cases under the new laws will be crucial, requiring adequate training, resources, and efficient processes to prevent further strain on an already burdened judiciary.
A Call for Reform and Democratic Values
The introduction of new criminal laws highlights significant deficiencies that jeopardise justice and individual rights. From unchecked police powers to gender-specific biases, these laws demand urgent reconsideration.
Moving forward, it is crucial to put strong rules in place to control law enforcement power, making sure they are open and accountable. The reintroduction of the sedition law underscores the need to safeguard freedom of expression, vital for a vibrant democracy. Embracing gender-neutral language and enhancing penalties for crimes like mob lynching are essential steps towards fairness and deterrence.Addressing judicial preparedness amidst linguistic diversity further underscores the need for accessible and efficient legal processes.
Reforming India’s criminal justice system demands a return to constitutional principles and democratic ideals. By repealing problematic laws and refining existing laws, we can forge a path towards a more equitable and inclusive society, preserving individual liberties and upholding our nation’s democratic integrity.
[The writer is Assistant Secretary, Jamaat-e-Islami Hind]