A cosmetic exercise and a missed opportunity

New crime laws are likely to add to the case arrears, may be misused by State agencies against citizens

The Bharatiya Janata Party (BJP)-led Parliament suspended around 146 members of Parliament (MPs) of the Opposition, whose temerity was “questioning” the absence of a parliamentary response by both the Prime Minister and home minister on a serious security breach, in the winter session. The exclusion of the Opposition ensured the passage of three Bills, comprising over 1,000 provisions, constituting the nation’s bedrock law for crime, with minimal pre-parliamentary consultation and zero parliamentary oversight.

The Chinese wall separation of the investigation and prosecution departments of the police has been called out by several law commissions. (Representative Image)

These three Bills — Bharatiya Nyaya (Second) Sanhita (BNS replacing IPC), Bharatiya Nagarik Suraksha Sanhita (BSS replacing CrPC) and Bharatiya Sakshya (BS replacing Evidence Act) — contain predominantly cosmetic and superficial changes. The government’s objective was to leave its own name and stamp largely by a ceremonial renaming, like with many prior existing schemes. For example, at least 33 ongoing government schemes, introduced between 1975 to 2013, have been simply renamed and appropriated as its own by this government. It is the first time this model has been applied to legislation. These changes, far from more expeditious disposal of our mammoth arrears of 50 million cases, of which a large chunk comprise criminal cases, threaten to throw a cloud of uncertainty over thousands of judicial decisions delivered on the old provisions for over 150 years. Ingenious accused and their clever lawyers will now add to the delays by asking for the settled and certain meanings of age-old provisions to be reconsidered de novo (afresh) by the overburdened courts.

In fact, the government has just missed a historic opportunity to make many fundamental and desirable amendments. The Chinese wall separation of the investigation and prosecution departments of the police has been called out by several law commissions, the Malimath Committee and the Supreme Court (SC) since the 2006 Prakash Singh case. That urgent reform is ignored. Also missed is the opportunity to transform BNS from a punitive to a reformative code, for example, by a significant increase in the list of compoundable offences. A third reform missed is punishment alignment viz avoidance of the anomaly of graver offences carrying lesser punishments and relatively milder offences carrying harsher punishments, as in Section 173 of BNS (bribery for elections), giving only one-year imprisonment and Section 192 (inciting riots), giving only six months.

A clearly laudable provision, included for the first time, is community service in BNS. Section 69 on “sexual intercourse by deceitful means” is retrograde: It criminalises non-rape cases of alleged deceitful promise to marry a woman and having sexual intercourse on that basis. The 10-year punishment is disproportionate and excessively harsh. It reflects the divisive implementation of the government’s agenda on so-called “love jihad”.

It’s hard to understand the logic of creating a parallel anti-terrorism code under clause 113 of the BNS/IPC, consolidating large parts of sections 15-21 (except 17) of the existing Unlawful Activities (Prevention) Act (UAPA). First, the UAPA is an existing central anti-terror law, which will override a general later law like BNS. Second, the three crucial anti-libertarian themes of special anti-terror laws — a reversal of the presumption regarding innocence, more restrictive conditionalities raising the threshold against bail, and admissibility of the statement of the accused — all found in the UAPA, are missing in the new clause 113 of BNS. Third, if certain special situations were to be dealt with, the UAPA could be amended, to avoid multiplicity of enactments and maintain unity of thought, purpose, and action in the fight against terrorism.

Last, the explanation to clause 113(7) transfers absolute discretion to an SP-level officer to decide whether to proceed under a much more stringent law (UAPA) or a much less draconian BNS. It provides no guidelines or statutory criteria regarding the exercise of that discretion and, therefore, creates an ex-facie arbitrary and discriminatory regime.

Equally bewildering is clause 111 of BNS dealing with “organised crime”. It virtually reproduces language identical to anti-organised crime state enactments like Maharashtra Control of Organised Crime Act (MCOCA) and Karnataka Control of Organised Crime Act (KCOCA). The three anti-libertarian facets mentioned above in the context of anti-terror law found in these state laws are absent in BNS. Why create a more diluted federal version of anti-organised crime state statutes? Clause 187 of the BNSS allows the 15-day police remand to be effected in bits and pieces and not continuously at one go. This considerably enhances the harassment of arrestees by repeatedly shuttling them between judicial and police custody. Moreover, police questioning can be easily and effectively done during judicial custody with prior permission of the court.

These amendments will render inoperative diverse state amendments made to the earlier IPC, CrPC and evidence laws. All three previous acts are effaced and erased by specific repealing sections in the new ones. These old acts had several state amendments made by different states that would also necessarily stand effaced and erased. None of the state amendments to the IPC or the Evidence Act are saved because there is no saving clause for local laws in either the BNS or BS. Interestingly, by contrast, there is a specific saving clause in the CrPC (clause 5) that specifically saves local laws. No such counterpart clause exists either in the BNS or BS.

Qua sedition, the government suffered two interim orders in May and October 2022 from the SC, which not only kept sedition prosecutions in abeyance but noted the clear statement of the attorney general that the government was seriously reconsidering the sedition law. When suddenly in May 2023, the Law Commission recommended the reincarnation of sedition, the government clearly distanced itself. Now the same proposal has been reenacted. Worse, the old sedition law provided for life or three years whereas the new provision provides for life or seven years. We all know the ground reality when journalists or others speaking truth to power have been picked up by the police under this vaguely worded and anachronistic provision and suffered incarceration while the law took its own course. The whole object is to misuse these provisions because the process is the punishment.

If the government wants to camouflage substance by form, at least make the form more substantial.

Abhishek Singhvi is a Rajya Sabha MP and a member of the Congress Working Committee. The views expressed are personal