New Delhi: Eight opposition MPs have given dissent notes to the Parliamentary Standing Committee on Home Affairs that was tasked to examine the three new criminal bills.
The MPs have called the new legislations “largely a copy paste” of existing laws, opposed their Hindi names, flagged lack of consultation and diversity of domain expert opinion and questioned the “haste” in which the legislations are being introduced.
The three new bills including – the Bharatiya Nyaya Sanhita Bill to replace the Indian Penal Code, 1860; the Bharatiya Sakshya Adhiniyam Bill to replace the Indian Evidence Act, 1872; and the Bharatiya Nagarik Suraksha Sanhita Bill to replace the Criminal Procedure Code, 1973 – were introduced in parliament on August 11.
The bills were then referred to the 31-member Parliamentary Standing Committee, which adopted its report last week. The committee was headed by BJP MP Brij Lal.
The eight MPs who gave dissent notes include Congress MP and former home minister P. Chidambaram, his party colleagues Adhir Ranjan Chowdhury, Ravneet Singh and Digvijaya Singh; DMK’s N.R. Elango and Dayanidhi Maran and TMC’s Derek O’Brien and Kakoli Ghosh Dastidar.
‘Largely a copy and paste of existing laws’
In his dissent note to the three bills, Chidambaram said that they are “largely a copy and paste” of the existing laws.
“There was absolutely no need to draft so-called new Bills. All that the Bills have done is to make a few amendments (some acceptable, some not acceptable), re-arrange the sections of the existing Laws, and merge different sections into one section with many sub-sections. This is a wasteful exercise that will have many undesirable consequences,” he wrote.
In their dissent notes, TMC’s O’Brien and Ghosh Dastidar said that the new bills are “93% copy paste legislation”.
O’Brien wrote that the pre-existing legislation could have been modified to incorporate specific changes.
Congress MPs Digvijaya Singh, Chowdhury and Ravneet Singh wrote that the laws are vastly the same and have only been renumbered.
“This exercise, experts opine, would be responsible for large scale confusion resulting in unnecessary delay in the functioning of courts and the policing agencies,” Digvijiya Singh’s note said.
The Congress MPs added that even by Union Home Minister Amit Shah’s speech in parliament while introducing the bills, the changes amount to 25.
“There was thus no need to carry out such a comprehensive and unnecessary reform for merely 12 substantive amendments (by the HM’s own examples).”
In their dissenting notes almost all the opposition MPs have written against the Hindi names of the bills.
Chidambaram cited Article 348 of the constitution that states that all Acts shall be in the English language which is also the language of the Supreme Court and the High Courts.
“To have a Hindi only name to the Bill, irrespective of the language of the Bill is highly objectionable, unconstitutional, an affront to the non-Hindi speaking people (e.g. Tamils, Gujaratis or Bengalis) and opposed to federalism.”
DMK MP Maran said that the bills “will further change the federal relationship and structure between the Union and the State.”
“If these bills tum into Act’s, the people in non-Hindi speaking states will find difficulty in pronouncing and handling these Acts. At the grass root level they will not be able to understand the texture, character, tenor, and nature of the act if the title remains in Hindi and implementation will be very difficult including filing of FIR’s.”
DMK MP Elango said that the committee has not considered the suggestions on the naming of the bills in Hindi which undermines federalism in as much as it “goes against the linguistic feelings of non-Hindi speaking Indians.”
TMC’s O’Brien said that the nomenclature of the bills in Hindi, amounts to not only “Hindi imposition” but also “unconstitutional.”
‘Lack of consultation, diversity of opinion’
The opposition MPs in their dissent notes have also flagged the lack of proper consultation in drafting the bills.
Chidambaram said that besides state governments, Bar Associations, State and Central Police organisations, the Indian Police Foundation, the National Law School Universities, judges of the subordinate judiciary who apply the laws every day, eminent retired judges of the Supreme Court and the High Courts, eminent senior advocates and legal scholars were not consulted at the consideration stage by circulating the draft Bills and inviting them to comment.
“We strongly object to the process followed on the grounds of insufficiency, non- inclusionary, non scholarly and lack of adequate time for consideration by the Members,” he wrote.
O’Brien also said that the committee procedure lacked inclusivity in stakeholder consultations. “Many of the people called to testify had strong leanings or were associated with the ruling dispensation,” his note said.
He also referred to letters that he had sent to the chairperson (attached in his dissent note) and said that multiple verbal and written requests had been made by the undersigned to invite experts and practitioners to testify.
The opposition MPs also pointed to what they called were “drafting errors” in the legislations.
In his dissent note Chidambaram said that he had pointed to drafting errors but only some have been adopted and added that both “imprisonment for life” and “imprisonment for the remainder of a person’s natural life” should be separately defined and used in appropriate sections.
He added that a definition should also be provided for “community service”.
Flagging such errors in the bills and O’Brien said that it was a “stunt before 2024 elections” and that the “hasty passage” of the bills may result in “unintended consequences and contribute to public dissatisfaction.”
O’Brien also alleged that the committee had limited “the meaningful participation of the opposition” and said that meetings were scheduled during the festive season when members had prior constituency engagements and said that the opposition was allowed only an hour to scrutinise and critique the bills.
The Congress MPs Digvijaya Singh, Chowdhury and Ravneet Singh in their dissent notes said that the laws were “essentially colonial” even though the stated purpose of the exercise was to shed the colonial nature of the criminal laws.
“For example, most punishments for offences under the IPC have been retained. Further, punishments for some offences have been made harsher and the death penalty has been added for at least four new crimes such as mob lynching, organised crime, terrorism and rape of a minor. The removal of law on sedition was a mere symbolic gesture as it is replaced by a Clause 150 Bharatiya Nyay Samhita which is much more tyrannical and colonial in its essence. Ultimately, there has been no shift towards a rehabilitative approach to criminal laws,” their notes said.
The Congress MPs have also objected to the use of handcuffs under clause 43(3) of the Bharatiya Nagarik Suraksha Sanhita Bill which allows the use of handcuffs by police officers for certain offences.
Citing the Supreme Court order in 1980 which held that handcuffs are an anathema to human dignity, the Congress MPs stated that this section is more in line with “colonial mindset of punitive control of state”.
‘Enhances Union government’s policing powers’
The opposition MPs also said that the bills enhance the centre’s policing powers “without any checks and balances.”
“While the Bill seeks to enhance the time for which a person can be kept in police custody, there exists no protective measures to provide safety to the accused persons under police custody which is bound to adversely affect the safety of detainees,” wrote Digvijaya Singh in his note.
The Congress MPs added that by increasing the period of detention beyond the period of fifteen days, the new laws have ignored and undone the safeguard of judicial custody where police have to take Magistrate’s permission to interrogate an accused.
Both TMC MPs O’Brien and Ghosh Dastidar said that increasing the period of police custody without proper safeguards could lead to human rights violations, “including the risk of torture, coerced confessions, and abuse of detainees.”
“This is particularly concerning given the history of custodial violence and abuse in India,” wrote Ghosh Dastidar.
‘Abolish death penalty’
The opposition MPs have also written against the retention of the death penalty.
“This is the golden opportunity to consider, to do away with the death penalty. Humanism will ever be grateful to us if we deliberate and abolish the death penalty,” wrote Elango.
Citing data provided by the National Law University Delhi’s criminal justice programme Project 39A, both O’Brien and Ghosh Dastidar said that there is a need to re-evaluate death penalty in the country.
Ghosh Dastidar’s note said that a significant majority of death row inmates come from economically disadvantaged backgrounds, lacking proper education, and belonging to marginalised communities. “This data underscores the urgent need for re-evaluating the death penalty in the country.”
Chidambaram in his note stated that it has been “established that death penalty is no deterrent to serious crimes.”
“An imprisonment for the remainder of natural life without parole is, in fact, a more rigorous punishment and also opens a window of opportunity for the convict to reform,” he wrote.
In her dissent note, Ghosh Dastidar said that the sedition law has been “retained with a broader definition that can encompass a wide range of actions under the pretext of endangering India’s unity and integrity.”
“This expansion of the law provides authorities with significant discretion, contrary to the recommendation of the 22nd Law Commission, which called for a well-defined sedition law,” her note said.
O’Brien said that while the Bharatiya Nyaya Sanhita Bill does not explicitly have a Section 124A (IPC section that refers to sedition) it has Section 150, which reintroduces sedition in the bills in a “more draconian manner.”
The Congress MPs also said that despite the stated purpose of the legislations being women’s safety, marital rape has not been criminalised in the bills. They also objected to Clause 69 of the Bharatiya Nyay Samhita that refers to sexual intercourse by employing deceitful means and stated that deceitful means is too broad and can be prone to misuse to harass interfaith and inter caste couples.