SECOND AVATAR OF THE CRIMINAL LAW BILLS: THE KEY CHANGES

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TAG: GS 2: POLITY AND GOVERNANCE

THE CONTEXT: The three Bills introduced by the Union government in the Lok Sabha in August 2023 to replace respectively the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act were unexpectedly withdrawn on December 9, 2023. They were replaced by revised second drafts which were tabled by the Union home minister on December 12, 2023 in the Lok Sabha. 
EXPLANATION:

BACKGROUND:

• The August 2023 first drafts of the three Bills had drawn wide public outrage as an assault on our democracy.
• These were reviewed by the Parliamentary Standing Committee, reflecting the extremely poor quality and the alarming nature of the Bills, it was constrained to recommend a slew of changes. The Committee went to the extent of cautiously expressing mild concern about the vagueness of crucial definitions in the drafts
• In their second drafts too, the character of the Bills remains fundamentally anti-democratic. The fundamental objection to the first draft of the Bills is not removed by the second draft.

Key Modifications proposed in drafts are:

1. The most important change which will replace the Indian Penal Code, is that the government has entirely pulled back from the first draft’s expansion of the crime of terrorism beyond the existing definition in the Unlawful Activities (Prevention) Act, 1967 (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 in any foreign country”.
• Definition in the first BNS draft included as terrorism extremely vague acts such as “intimidating the general public or a segment thereof”, “disturbing public order”, “creating an atmosphere or spreading a message of fear”; “destabilising or destroying the political, economic, or social structures of the country”, or “creating a public emergency or undermining public safety”.
• Under the first BNS draft, these acts would be terrorist acts even if they are in the form of mere non-violent speech that does not involve the commission of any crime. Each of these vague formulations has the potential to be abused to lock up virtually anyone by converting legitimate public discourse into ‘terrorism’.
• The second draft of BNS withdraws the definition of a terrorist act in the first draft and entirely adopts the UAPA definition. There is one exception UAPA includes in terrorism the “production or smuggling or circulation only of high quality counterfeit Indian paper currency, coin or of any other material”. Whereas the second BNS draft widens this definition to cover the same activities with respect to any counterfeit Indian paper currency, coin or of any other material.
• The second draft of BNS also changes the punishment for ‘terrorism which results in death’ from life imprisonment without parole to life imprisonment as provided in UAPA (i.e., without ruling out parole).

Criticism:

• Double-barrelled weapon: While the modifications to the BNS definition of terrorism are welcome, it is disappointing that the government refused to drop the terrorism offence altogether from BNS as it is already covered under UAPA.  With this new BNS provision, the government will now have a double-barrelled weapon to prosecute and imprison terrorism under two statutes – a special law (UAPA) and the other a general law (BNS).
• Extraordinary police discretion: Given that one statute (UAPA) has some safeguards and a special court and the other (BNS) does not, this in itself creates an opportunity for potential rent-seeking and corruption on the exercise of this extraordinary police discretion. No justification has been provided for the need to maintain the offence of terrorism in two separate statutes.

2. Another potent weapon to be misused against non-violent dissent lay in the vague definition of “petty organised crime” in the first BNS draft. Under which any crime that causes general feelings of insecurity among citizens relating to thirteen enumerated acts and “other common forms of organised crime committed by organised criminal groups or gangs” was criminalised.

The government has pulled back on this open-ended definition and replaced it in the second draft with a more circumscribed definition: “Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.”

3. Punishments

• In the second BNS draft, the government dropped the earlier proposal that life imprisonment in all cases shall be “imprisonment for remainder of a person’s natural life”.
• The second BNS draft clarifies punishment for ‘culpable homicide not amounting to murder’ which had not been clearly drafted in the first draft.
• Under the revised version, causing death by any rash or negligent act not amounting to culpable homicide will be punishable by five years’ imprisonment, reduced from seven years.

4. Mental unsoundness 

• The first drafts of the Bills wrongly substituted the IPC, CrPC and Evidence Act concept of “mental unsoundness” with the term “mental illness” without noticing the critical distinction between these two concepts.
• This error has been rectified in the second draft of all three Bills.

5. Use of electronic technology

• The draft Bills clearly indicate a lack of clarity and understanding about the use of electronic means in criminal justice.
• The second BNSS draft deletes various proceedings that were authorised to be conducted electronically in the first draft without explaining the need for the change.

Some key recommendations not accepted

• The Standing Committee’s recommendations that
• non-consensual sexual acts covered by IPC Section 377 should continue to be criminalized
• grounds must be provided by the Executive for commutation of sentences
• a special provision be included to protect healthcare workers
• adultery be maintained as a gender-neutral crime.

Criticisms of the Bills:

• The Bills weaponise the police and the criminal justice system to give the political leadership at all levels centre, state and local. It gives greater opportunity to abuse the criminal justice system for political gain through selective, targeted and politically biased prosecution against ideological and political rivals.
• The Bills create and maintain high-sounding but vaguely worded and easily abused offences such as “terrorism”; “organised crime”; endangering “sovereignty, unity and integrity of India”; and what we may call “sedition plus”.
• The Bills scale up police powers and discretion in a number of areas to be used for prosecuting these vague crimes. Violating well-established judicial standards, the Bills dilute the legal obligation of the police to file FIRs and register cases by providing police the option to conduct a preliminary inquiry before registering an FIR in certain cases.
• To expand the surveillance state, the Bills mandate the provision of biometrics by those who are not accused but are arrested in a case enhancing the incentive for arresting a person who is sought to be surveilled.
• There is no real effort in the Bills to enhance police accountability to the people. At a time when the judiciary is unable to protect citizens from malicious and selective prosecution. These Bills enhance repression in our country.

CONCLUSION: Rather than strengthening criminal justice administration, the Bills primarily serve political aims.  Like many other historic pieces of legislation, these three pivotal laws that will deeply affect the lives of all Indians will also be rushed through parliament with the explicit aim of avoiding any meaningful debate or genuine discussion on them.

Source: https://thewire.in/government/second-avatar-criminal-law-bills-has-anything-changed