Legally Speaking | Did the criminal laws need a hasty overhaul?

The changes have resulted in vaguely drafted provisions, which will have to go through several rounds of judicial review before clarity sets in.

Most Indians equate 420 to cheating and 302 to murder. The penetration of these sections into the language of the populace is to such an extent that any person being told, “420 mat kar!” will understand that he is being warned of cheating. However, these sections now do not hold the same meaning as the introduction of the Bhartiya Nyaya Sanhita (BNS); in fact, there is no section 420.

Starting July 1, India has replaced its colonial-era criminal laws with a set of three new penal laws (Shutterstock)

From July 1, the Government introduced three new laws to replace the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act. The three laws have been replaced by the BNS, Bhartiya Nagrik Suraksha Sanhita (BNSS) and the Bhartiya Sakshya Adhiniyam (BSS).

Home Minister, Amit Shah, announced the formation of a committee to recommend reforms in the criminal laws of the country in December 2019. On May 4, 2020, when the entire country was reeling under the Covid-19 pandemic, a notification forming the Committee was issued. The Committee was headed by Chairperson Ranbir Singh (vice-chancellor, National Law University Delhi), G.S. Bajpai (registrar, National Law University Delhi), Balraj Chauhan (first vice-chancellor, Dharmashastra National Law University), Mahesh Jethmalani (senior advocate Supreme Court) and G.P. Thareja (former district and sessions judge, Delhi).

From its inception the committee was criticised on several grounds, be it, the constitution of the committee during the pandemic — especially during the lockdown which had completely disrupted the normal way of life; the composition - the committee mainly had academicians and only one legal practitioner and there was no woman member.

Questions were also raised on the wide mandate of the committee with such few members and minimal public consultations. Another criticism was about the sudden urgency of the matter. Why wasn’t the law commission mandated the task to reform? However, none of the criticisms were taken note of and the Committee continued to function and produced the three sets of laws. The laws were also passed in the parliament with minimal debate and are now all set to be implemented.

The Government of India while introducing the laws stated that the intent was to end the colonial legacy and create a new legal framework, which was in line with the technological developments and societal changes. However, when 90-95% of the provisions of the old laws have been retained, a question which arises; was there a need for a completely new code or would a few amendments in the same scheme have been sufficient?

One of the markers of colonialism is the skewed power relations between the police and the citizens. Sadly, the new laws have expanded the ambit of police power rather than put a check on them. Some of the stark changes, which reflect this can be seen regarding the provisions on remand, registration of FIRs, private complaints as well as complaints against public servants.

The old code mandated that an accused after arrest cannot be kept in police custody for more than 15 days. However, the new code is ambiguous on this and legal practitioners fear that it may allow the police to retain custody of the accused for the entire period of 40/60 days prior to the chargesheet in different 15-day stints.

Under the new laws, FIRs are governed under Section 173 of the BNSS. The provision allows a person to register an FIR at any police station irrespective of the place of offence. Thus, even if an offence took place in Haryana, a person may register an FIR in Delhi. However, the confusion arises subsequently about the powers of the police station.

For example, under the new code, the Delhi police may also investigate a crime despite it happening beyond its jurisdiction. This includes the power to arrest as well. Thus, a party with political connections or means may cherry-pick a police station based on its influence.

The other change occurs regarding offences punishable with imprisonment of more than three years but less than seven years. In all these cases, the code empowers police to conduct a preliminary inquiry to ascertain whether a prima case exists or not and then to proceed with the investigation only when it does. This however runs contrary to the Supreme Court ruling in the Lalita Kumari v. Govt. of UP. As per the Supreme Court, the only thing the police need to note prior to registering the FIR is whether the information reveals the commission of a cognizable offence or not.

Regarding complaints to the Magistrate, the Code makes it mandatory for the accused to be summoned prior to taking cognizance. The Code does not clarify the nature of these proceedings, it cannot be a mini-trial because that would thwart the entire purpose of the investigation and unnecessarily burden the Court. Further, it is unclear how the accused would defend himself: Will he be allowed to lead evidence?

Furthermore, complaints against public servants are treated on a different footing. The official in question will be summoned to first explain the situation in which the incident took place and his senior will have to furnish a report on the same, and only then can the Magistrate take cognizance.

The Code also allows police personnel to handcuff undertrials during their presentation in courts based on the gravity of the offence and if the accused is a habitual offender; again, that is contrary to the longstanding principle of no handcuffing of accused laid down by the Supreme Court.

Another change is the introduction of terrorist activities and organised crimes within the fold of the BNS. Both these offences are covered by special legislation and the inclusion of the same under the general criminal law, allows the police to cherry-pick the law to be applied without any just basis.

Either the special laws could have been repealed if the same offences were to be included in the general law or the latter could have left these to the domain of the special laws. Further, the definitions are vague and ambiguous expanding on the powers of the police at the cost of individual liberty.

Similarly, while sedition is stated to have been removed from the code, it has been replaced by a similarly worded provision of treason. The new provision introduces several vague terms like ‘subversive activities’ and ‘encourages feelings of separatist activities’.

The act also allows trials to be conducted in the absence of the accused if he cannot be arrested or is absconding or a proclaimed offender. The person when arrested will have to serve the punishment awarded in such a trial.

Marital rape continues to be excluded from the definition of rape, the only change being that the age of consent in the case of a wife has been increased from 15 to 18 years. Further, the reasoning that marriage repudiates consent because non-consensual intercourse with a wife who is living separately is punishable but the same with a wife (above 18) living with the husband is excluded. While adultery is not included, the act punishes a person who entices a married woman to have illicit intercourse.

The act also makes an attempt to commit suicide with an intent to compel or restrain a public servant from discharging his duty punishable. In an era, of increased mental health awareness the same is a step back.

The Code introduces community service as a punishment but does not specify what it would include. Thus, the order to write an essay as directed by the Magistrate in the Pune Porsche case might also be considered community service.

The new laws include several changes keeping in line with technological advancements. They introduce the video recording of searches and seizures, the filing of FIRs through messages, and conducting trials through videoconferencing. However, in the absence of technological safeguards, the same might be empty promises.

The Code provides several timelines for the completion of various stages but as has been seen in several fast-track courts, the realities of life come in the way and the timelines are seldom adhered to. Further, in the case of criminal procedures when the same impinges on the liberty and life of persons, a liberal interpretation is needed.

The Penal Code and the Evidence Act predate India’s independence. Most of the people in the legal field, be it the judges, lawyers or even police personnel are well versed with the provisions. A complete change would require unlearning and re-learning at a mammoth scale. Further, regarding the pendency, there will be cases being conducted under both laws for some time to come.

All this chaos and confusion could have simply been avoided by introducing amendments where necessary. The hasty rehaul has resulted in vaguely drafted provisions, which will have to go through several rounds of judicial review before clarity will set in. Until then, these new laws by increasing the power of the police at the cost of individual liberty are a continuation of the colonial legacy they claim to put an end to.

Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.