Why concerns over revamped criminal laws refuse to go away

The new laws passed by Parliament on December 21, have now replaced the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872.

Image used for representation.

NEW DELHI:  It may have taken more than two decades for Thomas Macaulay to draft the Indian Penal Code (IPC) and Criminal Procedure Code (CrPC). However, the recently concluded winter session of Parliament saw the swift overhaul of those British-era criminal laws — which are as old as 160 years.

The new laws passed by Parliament on December 21, have now replaced the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872.

The IPC will be replaced by the Bharatiya Nyaya (Second) Sanhita Bill, 2023; the CrPC of 1973 will be replaced by the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 whereas the Indian Evidence Act of 1872 will be replaced by the Bharatiya Sakshya (Second) Bill, 2023.

The three bills introduced by Union Home Minister Amit Shah in August this year were scrutinised by a Parliamentary Standing Committee, which recommended several changes in its reports in November. The reports, too, came under severe criticism from opposition members of the Standing Committee on various issues - from the usage of Hindi titles to the lack of wider consultation with various stakeholders. They recorded them in dissent notes.

The government then withdrew the initial bills and re-introduced them in Parliament on December 12 after incorporating certain suggestions made by the Standing Committee. Introducing the revised bills, Amit Shah said “Had we continued with the old bills, several official amendments would have had to be made, so we decided to introduce the new bills instead. Grammatical and language errors have been corrected. There are no major changes.”

Key changes
Some of the key changes under BNS (second) which replaced the IPC include new offences like terrorist acts, organised crime, mob lynching, abetment outside India, and acts endangering the sovereignty, integrity, and unity of India, among others.

1. Terror acts
Speaking to this newspaper, Prof G Mohan Gopal, former Vice-Chancellor of the National Law School, Bengaluru, and former director of the National Judicial Academy, says the laws create a new offence of terrorism in addition to the existing offence of terrorism under the 1967 Congress-enacted draconian Unlawful Activities Prevention Act (UAPA). The UAPA defines as terrorist any act “with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country”.

Mohan Gopal points out that one important change in the second draft of the BNS is that the government has omitted the first draft’s definition of terrorist acts. The definition of terrorism in the first draft included vague acts such as “intimidating the general public or a segment thereof”, “disturbing public order”, “creating an atmosphere or spreading a message of fear”; “destabilizing or destroying the political, economic, or social structures of the country”, or “creating a public emergency or undermining public safety”. However, Section 113 of the revised bill has adopted the definition of the crime of terrorism in line with that under Section 15 of the UAPA.

The BNS also provides that an officer not below the rank of superintendent of police shall decide whether to register a case under the BNS II or the UAPA. Mohan Gopal points out that while the UAPA has some ‘procedural safeguards’, BNS doesn’t have any. “The state will have the option to charge people under either or both of these sets of laws,” he says. The offence is punishable by death or imprisonment for life. Those who conspire, abet, incite or facilitate the commission of a terrorist act could face imprisonment ranging from five years to life.

Speaking to this paper, senior advocate Colin Gonsalves says that under UAPA, the sanction is required from the Union government to proceed with the prosecution. There is also a mandatory requirement for an independent authority to scrutinise the evidence even before the sanction is granted. “BNS lacks both these safeguards and makes it more draconian,” says Gonsalves.

2. Death or life term for mob lynching

For the first time, BNS made mob lynching and hate crime a separate category of murder. The new law adds murder or grievous hurt by five or more people on specified grounds, as an offence. These grounds include race, caste, sex, language or personal belief. The punishment for such murder is life imprisonment or death penalty.

In the first version of the BNS bill, the punishment for the offences was between seven years to death. However, the panel recommended that it should be treated at par with murder, where the minimum sentence is imprisonment for life. The new law is in line with the guidelines issued by the Supreme Court in 2018. Though the SC judgment recognised religion as an important factor in mob lynching incidents, the BNS failed to do that.

3. Petty organised crime
It is for the first time that petty organised crimes are being penalised under this law. The revised bill defines the offence as “Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorized selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit a petty organised crime.”

However, Mohan Gopal points out that the government has withdrawn the earlier version of the BNS bill, which had more implications. The first version of the bill included all crimes that cause ‘general feelings of insecurity among citizens’ relating to 13 specified acts and ‘other common forms of organized crime committed by organized criminal groups or gangs’. 

The committee also raised concerns on the definition saying that it was ambiguous and lacked any procedural safeguards.

4. Mental illness replaced by unsoundness of mind
By replacing ‘mental illness’ with ‘unsound mind’ in the new laws, the government has adopted a sensitive approach to the issue.

Though the earlier version of the bill had replaced terms such as mental retardation and unsoundness of mind with ‘mental illness’, the government accepted the recommendations of the parliamentary panel and effected the change. The committee said that the term mental illness is too wide in its import in comparison to unsound mind, as it appears to include even mood swings or voluntary intoxication within its ambit.

“The committee is also of the view that such a frivolous claim, if recognized as a valid defence, will spell doom for the prosecution as all defences will be claimed under this provision, thereby defeating the very purpose of this Sanhita,” it said.

5. Sedition repealed, ‘offence against the state’ in
While introducing the bill, Shah said that the government has done away with sedition but inserted punishment for those acting against the interests of the country. “We have abolished the British concept of sedition. Now anyone can speak against the government because everyone has the right to freedom of speech. But if you speak against the country, harm its interests, you will get the harshest punishment,” he warned. 

However, the BNS introduces the offence under a new name ‘offence against the state’ and with a wider ambit. It lists offences such as acts of secession, armed rebellion, subversive activities, separatist activities, or endangering the sovereignty or unity in the new avatar of the sedition law.

According to the laws, anyone purposely, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine. 

According to IPC Section 124A, which deals with sedition, anyone involved in the crime may be punished with life imprisonment or with a three-year jail term.

“The new laws introduce a new crime ‘Acts endangering sovereignty, unity and integrity of India’, which is in effect ‘sedition plus’. Under the IPC, sedition involved disaffection towards the government. Now the minister said that the ‘raj droh’ offence has been changed to ‘desh droh’. The government can use this to suppress dissent and target whoever they want,” says Mohan Gopal.

HIGHLIGHTS

Bharatiya Nagarik  Suraksha (Second) Sanhita, 2023 

Extending police custody from 15 days to 90

•  The expansion of police custody in the BNSS from 15 days to 90 days, has sparked widespread concerns. “Police custody is the most frightening part of the legal process. Even our colonial masters, the British, understood that they had to keep it to the minimum. That is why for the last 100 years, it was for 15 days. It is a huge blow to civil liberties,” says Gonsalves
• The new Section 187(2) says, “the judicial magistrate may… authorize from time to time the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole, or in parts, at any time during the initial 40 days or 60 days out of detention period of 60 days or 90 days (depending on the nature of the offence)
• Though the parliamentary panel raised concerns of allowing police custody beyond the initial fifteen days of arrest, the revised Bill has not addressed the issue
• The panel said, “There is a concern that this clause could be vulnerable to misuse by authorities, as it does not explicitly clarify that the custody was not taken in the first fifteen days either due to the conduct of the accused or due to extraneous circumstances beyond the control of the investigating officer. The committee recommends that a suitable amendment be brought to provide greater clarity in the interpretation of this clause”

Registration of FIR

• Concerns have also been raised about Section 173 of the BNSS which allows the police to conduct preliminary inquiries rather than file FIRs. “The Constitution bench of the Supreme Court has given clear mandate that an FIR must be registered if it is clear from the inquiry that a cognizable offence was committed,” said Gonsalves. A preliminary inquiry can be conducted in cases where it is not clear whether a cognizable offence was committed or not
•  The new law permits the police to file a preliminary inquiry before registering an FIR in certain cases, going against the SC ruling, he said

Implementation
 

• Though the new criminal laws were notified by the government on December 25 after getting the President’s assent, it will be a long road before it gets implemented in all states and Union territories. The opposition parties also have flagged the lack of consultation with states, district courts, police stations, and lower judiciaries on the bills. “It may take at least a year to get a hang of it,” said a lawyer.
•  The laws “shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.”
• A day after the three criminal laws received the President’s assent and were notified in the official gazette, confusion prevailed in police stations and courts regarding its implementation, according to experts.

Power of handcuffing 

• Clause 43(3) of the BNSS empowers a police officer to use handcuffs against habitual offenders who escaped from custody or those committing specific offences like, terror acts, organised crime, sexual offences, etc., during arrest and beyond — when the accused is produced before a court. Upon the recommendation of the Standing Committee, the provision of handcuffing economic offenders has been dropped in BNSS II.
•  But the Supreme Court has held that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of a prisoner attempting to escape or attempting violence. The court went on to say that handcuffing is prima facie inhumane.