CRIMINAL LAW BILLS AND A HOLLOW DECOLONISATION

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CONTEXT: Recently, three Bills, Bharatiya Nyaya Sanhita, 2023 (‘New Penal Bill’), Bharatiya Nagarik Suraksha Sanhita, 2023 (‘New Procedure Bill’) and Bharatiya Sakshya Bill, 2023 (‘New Evidence Bill’), were introduced in the Parliament to replace colonial era legislation for quicker justice and a bid to escape colonial legacy.

MORE ON THE NEWS:

• These three new criminal law Bills have generated concerns, questions and commentary on the changes that have been made. There are also questions about how different the Bills are compared to existing codes and laws.
• While introducing the three criminal law Bills and earlier while setting up the Committee for Reforms in Criminal Law in 2020, a lot was said about the decolonisation that these Bills will bring about.
• However, there are concerns that these Bills do very little to decolonise Indian criminal law and indicate the continuation and intensification of colonial-style powers.

KEY FEATURES OF THE BILLS

BHARATIYA NYAYA SANHITA, 2023

• It replaces the Indian Penal Code, 1860 and , will have 356 sections instead of the earlier 511 sections, 175 sections have been changed, 8 new sections have been added and 22 sections have been repealed.
• Sedition:  The Bill removes this offence.  It instead penalises the following:

(i) exciting or attempting to excite secession, armed rebellion, or subversive activities,

(ii) encouraging feelings of separatist activities, or

(iii) endangering sovereignty or unity and integrity of India

• Defines Terrorism and Organised Crime: The Bill defines terrorism as an act that intends to threaten the unity, integrity, and security of the country, to intimidate the general public or disturb public order. It also defines organized crime and imposes penalty.
• Protection to Women: The Bill allows death penalty for gang rape of women below 18 years of age. The Bill penalises the act of sexual intercourse with a woman through deceitful means with a simple or rigorous imprisonment up to 10 years, and a fine.

BHARATIYA SAKSHYA BILL, 2023

• It repeals the Indian Evidence Act, 1872, will now have 170 sections instead of the earlier 167, 23 sections have been changed, 1 new section has been added and 5 have been repealed.
• The Act provides rules for the admissibility of evidence in legal proceedings.  The Bill retains several parts of the Act.   It removes certain colonial references from the Act, widens the ambit of electronic records admissible as evidence, and removes provisions related to telegraphic messages.
• Admissibility of electronic or digital records as evidence: The Act provides for two kinds of evidence – documentary and oral evidence.  The Bill provides that electronic or digital records will have the same legal effect as paper records.
• Expand the definition of document: The law expands the definition of documents to include electronic or digital records, e-mails, server logs, computers, smart phones, laptops, SMS, websites, locational evidence, mails, messages on devices.

BHARTIYA NAGARIK SURAKSHA SANHITA BILL, 2023

• It will replace Criminal Procedure Code, 1898, now has 533 sections, 160 sections of old law have been changed, 9 new sections have been added and 9 sections have been repealed.
• Trials in electronic mode: The Bill provides that all trials, inquires, and proceedings may be held in electronic mode.
• Forensic investigation: The Bill mandates forensic investigation for offences punishable with at least seven years of imprisonment.
• Timelines for procedures: The Bill prescribes timelines for various procedures.  For instance, it requires medical practitioners who examine rape victims to submit their reports to the investigating officer within seven days.  Other specified timelines include:
• Giving judgement within 30 days of completion of arguments (extendable up to 60 days)
• Informing the victim of progress of investigation within 90 days
• Framing of charges by a sessions court within 60 days from the first hearing on such charges.

SIGNIFICANCE OF THE BILLS

• Decolonisation of laws: These three outgoing laws were made to strengthen the British rule and their purpose was to punish not to give justice and had signs of slavery. These news laws have been passed for decolonization of laws and to remove these signs of slavery.
• Protect rights of citizens: The soul of the three new laws is to protect all the rights given to Indian citizens by the constitution, and, their purpose is to give justice.
• Transparency and Efficiency: The new provision has been made through these laws to enhance transparency and efficiency of the system. It is done by digitization of entire process of criminal justice system from FIR to case diary, case diary to charge sheet and charge sheet to judgement.
• Quicker justice: Provision has been made in India’s criminal justice system for quicker justice that now anyone will be able to get justice within a maximum of 3 years. It will be compulsory for the Police to give the status of the complaint in 90 days and thereafter every 15 days, to the complainant.

ISSUES IN THE BILLS

• Opacity in the crafting of the Bills: There is issue raised of opacity in crafting of the Bills as the inputs of the stakeholders and the final report of the MHA’s Committee For Reforms In Criminal Laws (CRCL) has not been put in the public domain.
• Issue of increased suspicion: The framework produced by the Bills views citizens with such increased suspicion and mistrust that the state appears to almost be in opposition to the citizen.
• Continuation of colonial power: A notable feature of colonisation is suppression in the pretext of security by giving the executive unchecked police powers. The Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill expands the police power as it allows police custody for periods longer than is allowed under the current Criminal Procedure Code. This legislative increase in the use of police or police adjacent powers, is a continuation of colonial powers and not a route for undoing them.
• Inadequate police and prison reforms: Police and Prison has been seen as relics of colonization. Yet, the decolonisation that the Bills seek to achieve provides no scope for their reform.

WAY FORWARD

• Development with Decolonisation: The narrative of decolonisation surrounding the Bills must not be seen in isolation from developments. The areas of criminal lawmaking should work for both development and decolonization.
• Need to reflect changed relationship between state and citizen: A ‘decolonised’ or a post-colonial law, would necessarily need to reflect the changed relationship between the citizen and the state. This fundamental shift changes the process of law-making, and the priorities and purpose of the law.
• Reforms in institutions: There is need to take stringent action for reforms in institutions of police and prison by increasing Without reorienting the foundational perspective of these institutions calls for decolonisation will remain impassive.

CONCLUSION

Though the newly introduced legislation is a significant step forward in reforming criminal justice system in India. But the issue of decolonization of the laws still persists. There is need to give effect to reordered relationships between the state and citizen through these laws to ensure effective justice delivery.

SOURCE: https://www.thehindu.com/opinion/op-ed/criminal-law-bills-and-a-hollow-decolonisation/article67373127.ece

PREVIOUS YEAR QUESTION

Q.1 We are witnessing increasing instances of sexual violence against women in the country. Despite existing legal provisions against it, the number of such incidences is on the rise. Suggest some innovative measures to tackle this menace. (2014)

Q.2 Mob violence is emerging as a serious law and order problem in India. By giving suitable examples, analyze the causes and consequences of such violence. (2015)

MAINS PRACTICE QUESTIONS

Q.1 Recently, three Bills have been introduced in the Parliament to reform the criminal justice system in India. Analyze the potential benefits and concerns associated with these proposed changes.

Q.2 Criminal Justice Reforms for decolonization require not only legislative changes but also institutional and social changes. Comment.