3 New Laws Stir Controversy

Bharatiya Nyaya (Second) Sanhita, Bharatiya Sakshya (Second) Bill, and Bharatiya Nagarik Suraksha (Second) Sanhita, the three new laws overhauling current Indian criminal laws, passed by both houses of the Parliament in the 2023 Winter Session, have raised serious concerns amongst human rights advocates and activists. They say that the new laws are more draconian than the British era laws.

The Bills, which also received President Droupadi Murmu’s assent on December 25, are being challenged by lawyers who have filed a Public Interest Litigation (PIL) before the Supreme Court seeking a stay on its implementation.

The three Bills were passed in both the Lok Sabha and the Rajya Sabha, amidst the suspension of majority Opposition leaders. The petition, filed by Advocate Vishal Tiwari, seeks the constitution of an expert committee to examine the three criminal laws.

The petition claims that the laws suffer from many defects and discrepancies. It further stated that the three Bills were withdrawn, and redrafted Bills were produced with some changes, which were then passed in Parliament.

The three Bills were passed and enacted without any parliamentary debate as most of the Members of Parliament were under suspension during the period, the petition states.

The PIL further seeks directions to immediately constitute an expert committee under the chairmanship of a former judge of the Supreme Court and its members comprising judges, senior advocates and jurists to examine the viability of the three criminal laws.

On August 11, 2023 the Union Government introduced three new Bills in the Lok Sabha to replace the Indian Penal Code, 1860 (the Bharatiya Nyaya Sanhita Bill, referred to here for ease of reference as “BNS-IPC”) the Indian Evidence Act, 1872 (the Bharatiya Sakshya Adhiniyam Bill, referred to as “BSA-IEA”) and the Criminal Procedure Code, 1973 (the Bharatiya Nagarik Suraksha Sanhita Bill referred to as “BNSS-CrPC”).

The Bharatiya Nyaya Sanhita replaced the Indian Penal Code, Bharatiya Nagarik Suraksha Sanhita replaced the Code of Criminal Procedure, and Bharatiya Sakshya Sanhita replaced the Indian Evidence Act.

“If the British laws were colonial and draconian, the law enacted by this government is 10 times more draconian,” said Supreme Court lawyer Colin Gonsalves.

According to the government, three specific provisions that have been symbols of colonial imprint in the IPC – sedition, criminalisation of homosexuality and adultery – have been repealed.

After the three Bills were referred to the Parliamentary Committee on August 24, 2023, the Committee took 3 months to review them, and on November 6, 2023, released its Reports on the bills.

Highlights Of Bharatiya Nyaya Sanhita (BNS):

- The Bharatiya Nyaya Sanhita (BNS) retains most offences from the IPC. It adds community service as a form of punishment.

- Sedition is no longer an offence. Instead, there is a new offence for acts endangering the sovereignty, unity and integrity of India.

- The BNS adds terrorism as an offence. It is defined as an act that intends to threaten the unity, integrity, and security of the country, intimidate the general public or disturb public order.

- Organised crime has been added as an offence. It includes crimes such as kidnapping, extortion and cyber-crime committed on behalf of a crime syndicate. Petty organised crime is also an offence now.

- Murder by a group of five or more persons on grounds of certain identity markers such as caste, language or personal belief will be an offence with penalty of seven years to life imprisonment or death.

One of the major factors and reforms that is being discussed in the Bill is the removal of the word “Sedition”. Internet Freedom Foundation while explaining the reform from the Bill said that while the Ministry of Home Affairs has removed the word “Sedition” from the law (formerly Section 124A of the IPC) on paper, it has replaced it with a much more “vague and broad nomenclature” in the BNS.

“Clause 150 titled ‘Acts endangering sovereignty unity and integrity of India’ criminalises acts endangering the sovereignty, unity, and integrity of India [which include using electronic communications] to excite armed rebellion, subversive activities, secession, separatism, or to endanger India’s unity, sovereignty and integrity.

“Actions similar to sedition will be penalised, but with a wider scope and application due to its vagueness, which will have catastrophic effects on free speech, dissent and journalistic freedom,” the IFF report titled Reforming (or deforming?) the criminal justice system: A digital rights overview of the three new criminal law Bills stated.

This means that punishment under Clause 150 mandates imprisonment under all circumstances, unlike Section 124A, under which the penalty could be limited to a fine.

The fine print, however, shows that the offence of Sedition, currently rendered inoperable by a Supreme Court order, has had a name change from ‘rajdroh’ to ‘deshdroh’.

“In British period you could keep a person in police custody for a maximum of 15 days, this limitation was put because torture takes place in police custody. The 15 days have now been extended to 90 days and more. That’s a shocking provision in enabling police torture,” said Gonsalves.

The definition of terrorism has also changed under the BNS bill and now includes an act that intends to intimidate public order. This may lead to breaches of peace at the local level being qualified as terrorism.

Giving the example of Unlawful Activities (Prevention) Act (UAPA), Gonsalves said that the sanction under the UAPA has been removed.

“Under the draconian law, if one goes under the terrorism status, after the police gather all the information and make the chargesheet, it won’t be filed until sanction is obtained from the government. The part of sanction has been removed under the new Bill,” he said.

G. Mohan Gopal, a former director of the National Judicial Academy calls the Bills anti-democratic. “The bulk of changes made by the second drafts of the three Bills are almost entirely editorial and inconsequential in nature, often simply correcting quite embarrassing errors,” he wrote in an opinion piece for ‘The Wire’.

Key Changes In The Bns Include:

- Offences against the body: The IPC criminalises acts such as murder, abetment of suicide, assault and causing grievous hurt. The BNS retains these provisions. It adds new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.

- Sexual offences against women: The IPC criminalises acts such as rape, voyeurism, stalking and insulting the modesty of a woman. The BNS retains these provisions. It increases the threshold for the victim to be classified as a major, in the case of gangrape, from 16 to 18 years of age. It also criminalises sexual intercourse with a woman by deceitful means or making false promises.

Meanwhile, the amended Bharatiya Nyaya Sanhita (BNS), 2023, does not include the Indian Penal Code (IPC) Section 377. This removes rape of men and bestiality as offences.

- Organised crime: This includes offences such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime carried out on behalf of a crime syndicate. Attempting or committing organised crime will be punishable with: (i) death or life imprisonment and a fine of Rs 10 lakh, if it results in death of a person, or (ii) imprisonment between five years and life, and a fine of at least five lakh rupees.

- Mob lynching: The BNS adds murder or grievous hurt by five or more people on specified grounds, as an offence. These grounds include race, caste, sex, language, or personal belief. The punishment for such murder is a minimum of seven years imprisonment to life imprisonment or death.

- Rulings of the Supreme Court: The BNS conforms to some decisions of the Supreme Court. These include omitting adultery as an offence and adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict.

Meanwhile, the second draft of the BNSS includes community service punishment, which was initially missing in the first draft.

‘Work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration’.

“This definition is not enough to ensure that punishment through forced community service is not arbitrary, is free of caste and gender bias and class prejudice and is free of any taint of corruption. The close involvement of social workers and probation officers is essential to ensure that the punishment of community service is administered with restorative rather than punitive intent,” Gopal added.

The IFF meanwhile stated that the Bills were introduced with a clear objective of digitising most aspects of criminal procedure. From registering a first information report (FIR) to drawing the charge sheet and delivering judgement, every step of a criminal investigation is required to be recorded digitally.

Under the BNSS, summons can be issued electronically, and testimonies from witnesses, experts, accused, and other parties may also be presented electronically/virtually.

The IFF has raised two major concerns with this. First, “complete digitisation may have the effect of excluding persons without internet access”, and second, “due care must be given to digitising something as foundational to the machinery as lodging FIRs”.

On the other hand, many have pointed out that the policing institution, which is “discriminatory” in nature, will only make things bad for certain communities.

In Parliament, Home Minister Amit Shah strongly defended provisions of the Bills including change in sedition provisions and defining terrorism, and asserted that any act against the nation will be punishable.

“This is not the rule of the British. This is not the rule of Congress. This is the rule of BJP and Narendra Modi… No argument of saving terrorism will work here,” he said.

“For the first time, laws are being made according to the spirit of our Constitution under the leadership of Modi ji. I am proud to have changed these three laws after 150 years,” he said.

“Reflecting the extremely poor quality and the alarming nature of the Bills, even the BJP-led Parliamentary Standing Committee 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 (see here for an analysis of the recommendations of the committee),” Gopal added.