In December of 2023, the Bharatiya Janata Party (BJP), during the winter session of the Parliament, pushed through three crucial laws – Bharatiya Sakshya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Nyaya Sanhita, 2023 replacing the Indian Evidence Act, the Code of Criminal Procedure and the Indian Penal Code respectively. These new Criminal Codes were granted Presidential assent on 25th December 2023, but do not come into force until a notification to this effect is issued by the Union government.
The new criminal laws are primarily an exercise in re-numbering and/or re-structuring of provisions in the existing three laws, besides which a small number of necessary changes have been incorporated including proving statutory basis to “zero FIRs”, decriminalisation of homosexuality, introducing a time limit for completing investigations, recognition of electronic evidence as primary evidence, expansion of the scope of secondary evidence among few others. However, it is another set of changes, though small in number, that are concerning since these are pernicious, from the point of view of human rights and civil liberties in the country.
A major and concerning development is the introduction of the crime of "terrorist act" in the BNS, which did not exist in the IPC.
Section 113 of the BNS, adopts a broadened definition of a “terrorist act” from the draconian Unlawful Activities (Prevention) Act (UAPA), while doing away with two (howsoever inadequate) safeguards present in the UAPA, namely, sanction of prosecution from the government and mandatory requirement of an independent authority to peruse the evidence before sanction is granted.
With this new BNS provision, the government has the unbridled choice to prosecute and imprison political opponents using either the UAPA (with its cursory procedural safeguards) or the BNS (without even that fig leaf). By using this provision, the government can declare as terrorist activity, any nonviolent struggle and movement for democracy or social, political or economic justice, or any public discourse that conflicts with the government narrative.
Retaining sedition law under a new nomenclature:
Contrary to popular belief, the offense of sedition (section 124A of IPC) has been retained under section 152 of the BNS, under a new nomenclature, and a more severe punishment.
The Union government has ignored the concern that sedition is an over broad, arbitrary offence which has no place in a constitutional republic. It has broadened the ambit of this already over-broad provision to criminalise even “encouraging feelings of separatist activity”, ignoring the Supreme Court requirement of the speech to be linked to the promotion of violence. The Union Government makes a mockery of the order of the Supreme Court suspending trials in sedition cases. This order came against the backdrop of indiscriminate use of sedition to quell dissent, obstruct free speech and target any opposition to the dominant ruling class ideology of crony capitalism and Hindutva. 2010 – 2021, has famously been called the Decade of Darkness, with more than 800 sedition cases being filed against 13,000 people. In fact more than 500 cases of sedition were filed since the BJP came into power in 2014 and 2019. It also found that the conviction rate was 0.1%.
Criminalising hunger strikes:
Section 226 has been introduced in the BNS that criminalises any attempt to commit suicide with the intent to compel or restrain any public servant from discharging his official duty. This alleged crime carries punishment of simple imprisonment upto one year, fine or community service.
Clearly the sole purpose of this provision is to prohibit hunger strikes, targeting the right of people to peaceful and democratic protest. Hunger strikes is democratic form of dissent and resistance, and forms a spirited and important part of the history of Indian freedom struggle - be it Gandhi or Bhagat Singh.
It is ironic that Modi who rode to power on the wave of the hunger strikes during the anti-corruption movement, has criminalised and denied to the people this form of protest.
Criminalising promise to marry:
Section 69 of the BNS states that whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. The explanation to section 69 states that “deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.
Right-wing groups loudly proclaim that this provision is going to be instrumental in countering the so-called “love jihad”, since the explanation categorically includes “marrying by suppressing identity”.
Love jihad – this pejorative and communal term for inter-religious marriages is a conspiracy theory on baseless claims that Muslim men suppress their religious identity and “lure” Hindu women into romantic relationships and then convert them to Islam. This claim has been instrumental in demonising and "otherising" the Muslim community despite being a bogey. Remember that even the Minister of State in the Ministry of Home Affairs G. Kishan Reddy stated on the floor of Parliament on 04.02.2020 that “no such case of ‘Love Jihad’ has been reported by any of the central agencies”.
Alongside inter-religion marriages, it is inter-caste relationships that have been targeted and this provision could very well be weaponised against them. The BJP government, in pursuing its communal casteist agenda, has ignored the rampant murders of couples, solely because they belong to different castes and communities, also called “(dis)honour killings''. Instead it grants statutory blessings to notions propagating inequality, hatred and are snatching away the rights of the people of this country, and which are steeped in patriarchal, paternalistic notions, where women need to be “saved” from “predatory” men, thus denying the agency and the autonomy of the woman.
It is widely known that the criminal justice system in India has been weaponised against religious minorities, other vulnerable communities like Dalits and Adivasis and the poor. The new codes by granting arbitrary powers to the police and effectively sanctioning breach of Fundamental Rights by the law enforcement agencies. This will only further entrench a system of oppression through law which will be wielded against the vulnerable.
Sanctioning 24 hours detention by the police:
Section 172 of BNSS, is a new provision that is introduced that did not exist in the CrPC. According to this provision, all persons are bound to conform to the lawful directions of a police officer given in fulfilment of any of his duties and such police officer is empowered to detain/remove any person resisting, refusing, ignoring or disregarding such orders, and further he “may either take such person before a Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four hours”. Thus statutory sanction has been given to the police to detain persons, without complying with the safeguards around arrest since this would not be deemed to be arrest.
Publicising accused details:
Section 37 of BNSS mandates the “prominent display", both physically and digitally, of the name, address and the nature of the offense of an arrested accused, in every police station and district headquarters. This provision in addition to violating the right to privacy and human dignity of a person, facilitates the profiling and targeting of individuals by the police prior to any formal conviction.
Statutorily mandating handcuffing:
Another weapon given to the police is the introduction of handcuffing vide section 43(3) of the BNSS, which was not only was absent in the CrPC but was held by the Courts to be prima facie inhuman, unreasonable and akin to treating human beings like animals. This provision allows the use of handcuffs during arrests, if the person fits the criteria of a habitual repeat offender, an escapee from custody, or if they stand accused of certain offenses like organized crime or terrorist acts.
Empowering the police to avoid registering FIRs:
Under section 173 of the BNSS, the police are not required to register an FIR based on a complaint on a category of cases which is punishable with three years but less than seven years. Instead the police are given the option to hold “preliminary inquiries” and determine if a “prima facie” case exists before registering an FIR. This is dangerous because it provides the police arbitrary discretion. It is known that “burking of crime” i.e. the turning away turn away of complainants by the police without registering their complaints, is a reality in the country and the number of FIRs not registered is approximately equivalent to the number of FIRs actually registered. Section 173 of the BNSS effectively grants statutory backing to the vice of burking of crimes.
Sanctioning custodial violence – enhancing police custody from 15 days to 60/90 days:
Atrocities perpetrated by the police are rampant. The dehumanizing torture, assault and deaths in custody have assumed alarming proportions and raise serious questions about the credibility of rule of law and administration of criminal justice system. In this regard, limiting police custody is one of the protections afforded to accused persons. Section 167 of the CrPC mandates that the accused can be remanded to police custody only for up to fifteen days within the first fifteen days of the accused being presented before the Magistrate after their arrest.
This stands completely altered by section 187 of BNSS which deals with the duration of police custody, and enhances policy custody from the present limit of 15 days of police custody, to 60 or 90 days (depending on the offence). This prolonged custody period would expose the accused to intimidation, torture and danger, by encouraging the men in ‘Khaki’ to consider themselves above the law and sometimes even to become law unto themselves.
While introducing the BNS, 2023 in Parliament in August, 2023, Union Home Minister Amit Shah loudly declared that in response to the widespread hue and cry about mob lynching by civil society, his government has introduced provisions for tackling mob lynching.
However, the BNS does not per se mention “mob lynching”; but sections 103(2) and 117(4) criminalises such actions without specifically calling it as such. Murder and causing grievous hurt by “a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground” is made a special crime.
What is glaring is the absence of “religion” as one of the explicit grounds in these provisions, despite universal recognition that religion is one among the prime motivating factors for mob lynching. Public executions or mob lynching of Muslims, much like caste murders, is an every-day and inescapable reality in new India. As such, the failure to mention religion cannot be accidental or oversight.
Section 23 of the BNS has introduced “community service” as a form of punishment, for certain offences: theft of property less than Rs. 5,000/-, drunken behaviour in public, defamation, etc. It is evident that the failure to specifically define community service, is deliberate. This clause, which on the face appears as progressive, has the potential for serious misuse and abuse.
This stems from the fact that no definition of community service is provided, except that it benefits the community. This lack of definition and statutory framework for what constitutes community service is a matter of grave concern, particularly in light of arbitrary and problematic orders passed by the Courts directing arbitrary and illegal acts of community service, as part of bail conditions or punishment for minor offences. These include orders to plant tree saplings, enlist as Covid Warriors, donate to PM Cares Fund, tie rakhi to rape survivor, etc. Essentially these orders on community service become a way of judges to further their own prejudices and biases in the name of judicial discretion.
Alongside handcuffing, section 11 of the BNSS backs the inhuman punishment of solitary confinement, which has been recognised as psychological torture and a violation of the right to dignity by the Supreme Court.
Section 11 of the BNS offers the Court the discretion to sentence an offender to upto 3 months solitary confinement according to the following scale:
(a) a time not exceeding one month if the term of imprisonment shall not exceed six months;
(b) a time not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year;
(c) a time not exceeding three months if the term of imprisonment shall exceed one year.
Thus, any offender, convicted of any crime, can be forced into solitary confinement at the untrammelled discretion of the judge. Moreover it exposes the hollow claim of the Union government of elevating justice above punitive measures.
The Union government’s claim that the intention behind the criminal codes is decolonisation is patently false , given the fact that the punishment for solitary confinement under the new codes is far worse than the provisions that existed before. The provision of solitary confinement under the old laws can be traced to sections 73 and 74 of the Indian Penal Code and section 29 of Prisons Act, 1894. Under the old laws there is a mandate that the inmate must have a means of communicating with a prison officer during solitary confinement, and, in cases where the inmate is confined in a cell for more than twenty-four hours, s/he shall be visited at least once a day by a medical officer. Solitary punishment in the BNS does not provide these cursory safeguards that the colonial-era Prisons Act, 1894 mandated.
At its core, the substantial changes introduced through these three criminal laws, “equip the government with adequate power to hollow out our democracy and transform India into a fascist state – should the government choose to deploy the new laws to their fullest extent” and can facilitate the clampdown on legitimate political dissent and protest against social and economic exploitation.
The only possible obstacle to India becoming the police state which the new criminal laws envisage is the voice of the people on the street With the Union government rendering parliament virtually powerless, and the courts abdicating their duty to hold the government responsible, it is only the people that can teach the Modi government a stern lesson, like the truck driver unions who have successfully protested against the new criminal laws. In fact the truck drivers have juts followed the farmers who came out against the three Farm Laws, the working class whose struggle has left the Labour Codes in limbo, and the struggle of the Muslim community against the communal Citizenship Amendment Act. In the coming days, many such agitations are inevitable as the consequences of these new criminal laws becomes apparent to the people.