Cassius, in Shakespeare’s Julius Caesar, held that it was not the stars, but men themselves who were responsible for the situation they found themselves in. We in India are in a similar position almost two thousand years later. We tirelessly legislate around the clock — why, even the Constitution of India has been amended no less than 106 times in the 73 years after its adoption, as compared to the 27 amendments in the Constitution of the United States of America in the 247 years after 1776. I know it is not fair to compare the rates of amended legislation in countries with such widely differing histories and societies. The point I am trying to make is that the plethora of laws and regulations we have surrounded ourselves with in India have not yielded citizen satisfaction in terms of effective enforcement of laws in India. Take the Indian criminal justice system alone: a May 2022 report of The Hindu shows a pendency of 3.06 crore criminal cases in India. National Crime Records Bureau data as of end-2021 reveal that of 5.5 lakh persons in prison in India, over 4.25 lakhs are undertrials, the result of a combination of interminably lengthy criminal proceedings, denial of pretrial release (i.e., bail) to those awaiting trial and the inability of undertrials to pay the bail bonds.
It is in this context that I examine the passage, by a Parliament truncated by the suspension of over 140 MPs, of three new bills, the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA), replacing respectively the existing Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and Indian Evidence Act (IEA). Given that the major objectives of the new legislation were to enact citizen-centric laws that would bring about a huge change in the criminal justice system with the purpose of giving justice and not punishment, one must confess to a feeling of déjà vu that this exercise has, on the whole, fallen short on a number of fronts.
Norms of Victorian morality still seem to influence twenty first century Indian legislation. Recent Supreme Court judgments had removed the crimes of homosexuality (Section 377) and adultery (Section 497) from the IPC. However, the BNS is, in a sense, not gender-neutral where punishment of non-consensual sex is concerned. While stringent punishments have been provided for rape, there is no corresponding provision for non-consensual acts of homosexuality. Moreover, while the crime of adultery is not there in the BNS, Section 84 of the BNS, by use of the word “enticement”, appears to reintroduce the crime of adultery by the backdoor, thereby denying a woman agency over her body, which, in effect, implies that a woman is the property of her husband.
Two provisions in the IPC which one had hoped would get a quiet burial have again reared their heads in the BNS. Section 354 of the BNS relating to defamation reproduces, in toto, Sections 499 to 502 of the IPC. The British law of criminal libel was abolished in 2010 and, considering that this provision in the IPC is a creation of colonial origin, it would have made sense for the Government of India to make defamation liable for only civil action. Criminal defamation provisions in the IPC have been repeatedly employed in India to harass political opponents and muzzle the right to free expression, both by governments and individuals, often by instituting the criminal case in a jurisdiction far removed from the place of actual commission of the alleged offence. Even more worrisome is the reappearance of the “sedition” provision of Section 124 of the IPC in a more stringent manner in Section 152 of the BNS. The Supreme Court was constrained to stay the provisions of this Section because of its widespread (mis)use by law enforcement agencies across the country — a glaring instance of misuse was the application of sedition charges against 49 well-known public figures like Adoor Gopalakrishnan, Mani Ratnam, Shyam Benegal, Aparna Sen and Ramachandra Guha in October 2019 when they had written an open letter to the Prime Minister over the growing incidents of mob lynching. None of the five activities termed criminal — “subversive activities”, “secession”, “separatist activities”, “endangering sovereignty, unity and integrity of India”, and “ armed rebellion” have been statutorily defined. The broad nature of the criminalised activities and the imprecise and vague description of the methods by which people might be “excited” to support these activities gives ample scope for the political executive, with the assistance of the police, to curb freedom of expression and stifle dissenting views as also to target political opponents.
When there is already in existence a powerful anti-terror law in the shape of the Unlawful Activities (Prevention) Act (UAPA), there is no necessity for the BNS to incorporate “terrorist acts” in its ambit. Giving a police officer of the rank of Superintendent of Police the discretion to apply either law in any particular case is an open opportunity for rent-seeking through misuse of powers. It is an unfortunate feature of the Indian criminal justice system that the general criminal law criminalises many activities that are also covered by special laws. As with terrorist activities, the provisions for prosecution for petty organised crime and organised crime under the BNS again expose the citizen to multiple avenues of prosecution for the same offence. The Indian Police Foundation (IPF), comprising former police officers, in its submission to the Parliamentary Standing Committee on Home Affairs, has rightly recommended the deletion of the provisions relating to these two crimes from the BNS, since many states like Maharashtra and Karnataka already have special laws to tackle organised crime. If at all the need is felt, a law for dealing with organised crime could be enacted for the entire country. As pointed out by the IPF, there is no need to keep in the BNS provisions already covered by the Juvenile Justice Act, Prevention of Corruption Act, Prevention of Cruelty to Animals Act and the Food Standards and Safety Act. Provisions for prosecution for the same offence under multiple Acts are hardly conducive to a citizen-friendly criminal administration.
A disquieting feature of the BNSS is the wide scope of discretion given to police officers in criminal investigation. Handcuffing of undertrials and convicts, justified only when there is an apprehension of the person escaping from custody (and, therefore, rightly frowned upon by the Supreme Court), is now permissible in a wide variety of offences, as deemed appropriate by the police officer. Police officers are given latitude in registering First Information Reports (FIRs), when the common experience of citizens is the reluctance of the police to register FIRs, especially where the wealthy and politically connected are concerned. Possible extension of police custody up to ninety days after arrest is another worrying provision in the new legislation, given the growing tendency to refuse bail. The right to personal privacy of individuals is also susceptible to violation with the legislation providing for any person to be required to give specimen signatures, finger impressions, handwriting or voice samples, regardless of whether or not that person is an accused or has been arrested in any case.
The conclusion is inescapable that, despite all pious claims to the contrary, the new laws are not progressive or liberal or citizen-friendly. Gender inequality is inbuilt in the provisions with women being seen as property. There is reluctance to adopt an open mind on issues like homosexuality and marital rape and, in the true spirit of the Constitution of India, giving primacy to the individual, especially the female, in her struggles against conservative traditions. The draconian provisions on terrorism and acts endangering the sovereignty, unity and integrity of India lend themselves to executive abuse, especially in the currently prevailing vitiated environment in the political sphere, and the noticeable intolerance of governments of all political hues of dissent from civil society.
Ultimately, however, the new laws will face their acid test in the manner in which they are enforced. The Supreme Court, in the 2006 Prakash Singh case, had issued directions for police reform, intended to insulate police functioning from rampant political interference. Seventeen years later, the transfer industry in the police department is still widespread, no efforts have been made to separate investigation from law and order duties and a short-staffed police force, inadequately trained in scientific investigation methods, struggles to bring criminal cases to a close. The vacancies in the judiciary, repeated adjournments in criminal cases and the poor quality of police investigations lead to interminable delays in justice for undertrials. Making provisions in the legislation for speedy justice will work only when all stakeholders in the criminal justice system — the state, police, the judiciary and the legal fraternity — work in tandem. Civil society organisations and the media are duty bound to exercise vigilance to ensure that the organs of state follow due process of law and that citizens are not subjected to needless harassment.
