On August 11, 2023 the Union government introduced in the Lok Sabha a proposed new criminal code for India consisting of three Bills that would respectively replace the Indian Penal Code, 1860 with the proposed Bharatiya Nyaya Sanhita (“BNS-IPC”), the Criminal Procedure Code, 1973 with the proposed Bharatiya Nagarik Suraksha Sanhita (“BNSS-CrPC”) and the Indian Evidence Act, 1872 with the proposed Bharatiya Sakshya Adhiniyam (“BSA-IEA”).
Quantitatively, the changes made by the three Bills to the existing criminal code are limited – they leave untouched some 70-75% of the current law. I argued, however, that although quantitatively limited, some of the changes sought to be made by the Bills are qualitatively game-changing. They would 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. The proposed new laws would enable the government to dramatically scale up arrest, detention, prosecution and imprisonment of law abiding democratic opponents, dissidents and activists.
I identified in this regard a dozen chilling features of the new Criminal Code as requiring special attention: (1) the criminalisation of legitimate, lawful, non-violent democratic speech or action as ‘terrorism’; (2) the broadening of the offence of sedition in a new and more vicious avatar (as what I would call “sedition-plus”); (3) the expansion of the potential for “selective prosecution” — targeted, politically-biased prosecution of ideological and political opponents; (4) the criminalisation of a common mode of political protest against government through fasting; (5) encouraging the use of force against any assembly of persons; (6) exponentially enhancing ‘police raj’ by criminalising “resisting, refusing, ignoring or disregarding to conform to any direction given by [a police officer] (sic)” on pain of immediate detention by the police officer; (7) enhancing handcuffing; (8) maximising police custody during investigation; (9) making the recording of a FIR discretionary for the police; (10) dialling up the pain of imprisonment; (11) compelling all persons (even those not accused of any crime) to provide their biometrics to the government; and (12) shielding of some of the Sangh parivar’s activities.
The three Bills were promptly referred by the Lok Sabha to the department-related Parliamentary Standing Committee on Home Affairs for review. On November 10, 2023, the Committee, which is controlled by the ruling coalition, submitted to parliament its reports on the three Bills. As expected, the reports hail, endorse and rubber-stamp the Bills. The Committee addresses only a small proportion of the three Bills: less than 10% of the 356 clauses of BNS-IPC; around 5% of the 533 clauses of BNSS-CrPC; and around 6% of the 170 clauses of BSA-IEA. The committee’s recommendations mostly deal with inconsequential drafting and editorial errors. The central issue — the impact of the Bills on democracy — is not addressed.
The few substantive recommendations made by the Committee do not hamper the core objective of the Bills, which is to establish draconian police raj in the country. They include: (i) make adultery gender-neutral and maintain adultery as a crime given the sanctity of marriage in the Indian tradition; (ii) do not delete Section current 153AA of IPC which bans processions in which arms are carried; (iii) add acts against sovereignty of India to the list of acts of terrorism; (iv) clarify that the offence of grievous hurt by a mob would cover acts on grounds of religion and community of the victims: (v) criminalise attacks against healthcare workers; (vi) reduce punishment for use of force against public servants; (vii) exclude economic offenders from expanded handcuffing under the new laws; (viii) limit the time period within which a person may be prosecuted for the new crime of refusing to obey directions of the police; (ix) clarify the maximum limit for police custody during investigation; (x) require that reasons be provided for the executive branch commuting sentences; (xi) put safeguards against risk of misuse of digital evidence; (xii) clarify some key definitions such as “life imprisonment”; “community service”; “organised crime”; “petty organised crime”; and “intimidation” (part of the new definition of a terrorist act); and (xiii) do not substitute the reference to “mental unsoundness” as a defence by “mental illness” as it will widen the scope of defence against criminal prosecution.
The Committee report acknowledges that although the current crime of sedition will be deleted in the new code, “provisions of sedition law that are suggested for removal are somehow retained in clause 150 (of BNS-IPC) in mild form addressing actions that jeopardise the sovereignty, unity and integrity of India.” That consultations held by the Committee during its review were largely with “friendly” sources is indicated by the statement of the Committee that during its hearings “all domain experts welcomed the initiative of the Government to introduce these legislations in Parliament” (emphasis supplied, page 11 of the Report on BNS-IPC).
Opposition’s dissent inadequate
The dissenting notes of the opposition members of the Committee are annexed to the Reports. The opposition members of the committee have utterly failed to put together a cogent and effective argument against the draconian Bills. Many of them have simply signed onto pre-prepared photocopies of comments without any evidence of independent application of minds. Their comments miss the forest for the trees.
The main points made by the opposition in their notes of dissent include: (1) the claims of the government on the aims, objects, rationale and benefits of the Bill are false; (2) public consultation on the Bills is grossly inadequate and he Bills are being processed with undue hurry; (3) the Bills should have English names; (4) the Bills enhance the police powers of the Union without adequate checks and balances; (5) marital rape has not been criminalised; (6) handcuffing is being expanded; (7) the Bills provide for excess police custody during investigation; (8) safeguards are required for use of electronic evidence; and for the proposed provisions on trials in absentia; (9) issues such as terrorism and organised crime should be kept within the framework of special laws with special procedural safeguards; the proposed provisions on terrorism overlap with UAPA provisions on terrorism and are over-broad; consent of states which have existing state legislation on organised crime must be consulted with respect to the provisions of the Bills on organised crime; (10) vesting of power of commutation of sentences in the executive violates separation of powers; (11) proposed several proposed punishments are either too low or too high; and (12) some provisions of the Bills are unconstitutional.
The dissent fails to adequately and squarely raise the larger issue of the illiberal and anti-democratic character of the Bills. Indeed, this may be because some of them, such as P. Chidambaram, are themselves architects of notorious draconian laws in the past and can have little ideological objection to a police raj. It does not seem that opposition political parties have any serious intention to oppose the introduction of a draconian new criminal code – which some of them may be looking forward to using against their own opponents when they come to power.
The way forward
As the Bills have now been endorsed by the Standing Committee with relatively minor suggestions, it appears quite certain now that they will be adopted by parliament and enacted as laws in short order without any change in their fundamental anti-democratic character. When that happens, although we may not immediately recognise it, we will cease in effect to be a functioning democracy in any meaningful way. What is the way forward?
First, we must raise public awareness of the extremely dangerous, anti-national role of criminal law as a weapon against democracy through criminalising of dissent and of democratic action in the name of vague and ill-defined crimes such as terrorism, sedition, attacks against the unity, sovereignty, integrity of India as well as by vesting discretionary power in the police which is not tightly controlled by civilain authority and ultimately by an independent judiciary. These laws have for years been misused for targeted, biased persecution of democratic dissent and activism for decades through selective prosecution. All this is likely now to increase substantially under the expanded power being given to the State to suppress democracy using criminal law. We must demand reform of all such criminal laws.
Second, we must recognise honestly where we stand today. It is undeniable that our current criminal justice system is indeed colonial and authoritarian. It is designed to protect power, not to protect democracy and the rights of the powerless. The Congress, which ruled India for three unbroken decades from from 1947 to 1977, made several amendments and reforms. But it not only failed to scrap the colonial criminal justice system lock, stock and barrel and build a new democratic criminal justice system consistent with the preambular values of the Constitution, it actually made criminal justice even more draconian than it was under the British. The result is that we today have a dystopic criminal justice system which has become an engine of oppression of common people and suppression of democracy. There is therefore undeniably a genuine need to discard the current criminal justice system and replace it with a new one. Fascist forces have taken advantage of this demand to put in place even more draconian and repressive powers while pretending that they are meeting the demand to overthrow the hated colonial system and replace it with a just and democratic system.
Third, there is no long term option except a long and substantive democratic struggle for our liberty against the establishment of a police state in India. We must use the upcoming parliamentary debates on the new criminal code, as well as their enactment and implementation, as the basis for a democratic mass movement demanding a new post-colonial, post-feudal, democratic, humane and just system of criminal law in India, consistent with global human rights norms and best practice.
Indian criminal law is historically heavily tilted towards criminalising acts against the state and against property rights (roughly 80% of our criminal laws) rather than criminalising acts against individuals (only roughly 15% of our criminal laws). In contrast, some 40% of laws in Norway criminalise crimes against individuals (as against 60% of Norwegian criminal law criminalising acts against the state or property). This needs correction. Like in several other countries, our criminal code must include provisions against genocide, crimes against humanity, crimes during armed conflict, torture, crimes against civil rights, violation of constitutional values, hate speech and caste or religious discrimination. We have no time to lose.
G. Mohan Gopal is an advocate, Supreme Court of India and a renowned legal academician.