New criminal laws must go through Parliament again

The three bills were rushed through parliament without an informed debate. The new Lok Sabha must be allowed to scrutinise them before they come into force
The image is used for representational purposes only.
The image is used for representational purposes only.Express illustration | Sourav Roy

The recently held Lok Sabha elections were an eloquent testimony to the unwavering wisdom of the Indian electorate. Defying predictions and pundits alike and notwithstanding a repeat of government, the mandate of the sovereign has delivered a resounding message: we, the sovereign, will not tolerate the erosion of our civil liberties. We will raise our voice, loud and clear, against any law passed in defiance of this cardinal democratic principle that forms the bedrock of our nation.

Given this unequivocal fiat by the people, it is imperative that the latest iteration of the ‘old establishment’ must act accordingly. It therefore is necessary to have an immediate cessation on the implementation of the three controversial criminal law bills that are scheduled to come into effect from July 1, 2024.

For these bills, shrouded in contention and passed in undue haste after suspending a record 146 members of parliament, must be re-subjected to rigorous legislative scrutiny and informed debate in the newly constituted Lok Sabha and Rajya Sabha. This is fundamental to respecting the democratic processes and ensuring that the laws of our nation reflect the will of its citizens through the informed participation of its political representatives.

Before addressing the three contentious bills in detail, it is imperative to provide some historical context. On August 11, 2023, the Bharatiya Nyaya Sanhita (BNS) Bill, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, and Bharatiya Sakshya Bill (BSB) were introduced in the monsoon session of parliament without adequate notice, denying the opposition the opportunity to object to their introduction.

Though the bills were referred to the parliamentary standing committee on home affairs, the informed dissent of many eminent members of the committee was not taken into consideration.

Finally, while the House was grappling with an unprecedented attack on its chambers and the opposition was raising concerns regarding the incident, 146 members of parliament were arbitrarily suspended, allowing the bills to be passed without opposition or even a semblance of an informed critique of its provisions. Currently, the Ministry of Home Affairs has notified that the three criminal law bills will be implemented on July 1, 2024.

These three criminal laws lack any substantial merit or any modicum of originality. Out of the 511 provisions in the IPC, only 24 sections have been deleted and 23 added. The rest have been merely renumbered in the new BNS. All 170 sections of the Evidence Act have been retained in the new BSB. Some 95 percent of the CrPC has been cut, copied and pasted as the new BNSS. As a result, it systematically overhauls the foundational laws of the criminal justice system without offering anything substantial by way of reform.

Second, Section 173(3) of the BNSS shall make the registration of an FIR discretionary for an offence where the punishment ranges from 3 to 7 years. This disproportionately harms marginalised groups, who may be unable to get even FIRs registered.

Third, Section 187(3) of the BNSS introduces the troubling provision that allows the police to request custody for up to 15 days at any point during a 60-90 day custody period, even if the accused has cleared the triple test for bail. This effectively hinders the accused’s ability to secure bail and can prolong their detention significantly. The provision raises concerns about arbitrary detention, potential abuse of power, and the undue burden placed on those facing charges under the new law.

Fourth, Section 43(3) of the BNSS brings back handcuffs. Despite the Supreme Court rulings in Sunil Batra vs Delhi Administration and the Prem Shukla case, which restrict the use of handcuffs, the new law expands police power in this regard, potentially violating the right to human dignity for accused individuals.

Fifth, the new law rebrands sedition through Section 152 of the BNS. This criminalises four kinds of activities: subversive activities, secession, separatist activity endangering the sovereignty, unity and integrity of India, and armed rebellion. There is, however, no finely-honed legal definition of these terms. It would provide wide latitude to the police and political establishment to persecute anyone without restraint and accountability.

Sixth, Section 113 of the BNS incorporates terrorism, which was already defined under the Unlawful Activities (Prevention) Act . This duplication creates two laws addressing the same offence, raising concerns about potential misuse of the BNS as a tool for intimidation.

Seventh, the new laws add three more capital punishments and six life sentences despite the Law Commission’s recommendations to abolish capital punishment and the Supreme Court’s guidelines to hand down capital punishment in only the ‘rarest of rare cases’.

Finally, if implemented, these three laws will create two parallel legal regimes. This will not only cause ambiguity but also exacerbate the existing backlog of cases. According to the National Judicial Data Grid, approximately 3.4 crore cases are pending in India’s criminal justice system, already overburdening the existing infrastructure. The implementation of the new bills would further strain the nation’s already creaky judicial system that is underpinned by an extremely tardy physical infrastructure.

For over a century and a half, thousands of judges from the subordinate judiciary to the Supreme Court have applied the existing laws assisted by over 15 lakh lawyers, a bulk of whom practice on the criminal side. This has created a vast body of criminal jurisprudence well known to common citizens in the remotest part of the country. The new laws are therefore unnecessarily and deleteriously disruptionist in their very conception.

There is no denying that India’s criminal justice infrastructure is in dire need of reform. However, the proposed bills, rather than addressing the existing lacuna, only serve to exacerbate them. The creation of parallel legal regimes, increased ambiguity, and a potential surge in case backlog are just a few concerns of the new bills.

It is imperative for the government to suspend the implementation of these bills and reintroduce them in parliament for a thorough discussion and deliberations in a truly democratic manner. Only through such a process can we ensure that reforms to our criminal justice system are comprehensive, effective and uphold the cardinal principles of natural justice, equity, fairness and transparency.

(Views are personal)

(manishtewari01@gmail.com)

Manish Tewari | Lawyer, MP and former Union minister

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