Lok Sabha clears 3 bills to replace British-era criminal codes
The bills were first tabled in Parliament on August 11, and then sent to a parliamentary standing committee
Union home minister Amit Shah on Wednesday said the government’s vision was to have a criminal code that provided “justice” rather than “punishment” as the Lok Sabha passed the three crucial bills — Bharatiya Nyaya (Second) Sanhita, Bharatiya Nagrik Suraksha (Second) Sanhita, and Bharatiya Saksha (Second) Bill — that will replace a raft of British-era laws after a day-long discussion in the Lower House.
The discussion saw the participation from 16 MPs. Out of these, none were from the Opposition INDIA collective, which has boycotted proceedings after a record 97 Lok Sabha members have been suspended for the rest of the winter session. The three bills were passed by voice vote at around 4.45pm.
Read here: ‘Sedition to be treason’: Amit Shah explains proposed changes to criminal laws
Later, the Opposition INDIA allies decided to challenge the three legislation in the Supreme Court, after discussing the bills during a meeting of their floor leaders at Congress president Mallikarjun Kharge’s residence on Wednesday evening.
“The objective of the IPC (Indian Penal Code) was to punish and not deliver justice. All the three laws, which are over 150 years old were made by the British to rule over us. Prime Minister Narendra Modi decided to remove all such remnants of the colonial era,” Shah said during his 97-minute reply to the discussions.
“From the Red Fort, PM Modi had said that we need to free ourselves from the colonial laws. The new laws have been framed keeping in mind three basic principles — civil liberty of citizens, human rights and equality. Some are unable to visualise this. The current laws have no scope for justice — punishment is seen as justice,” he added.
The Bharatiya Nyaya (Second) Sanhita will replace the Indian Penal Code, the Bharatiya Nagrik Suraksha (Second) Sanhita the Code of Criminal Procedure, and Bharatiya Saksha (Second) Bill the Evidence Act, 1872.
IPC, which deals with a majority of criminal offences, was brought by the British in 1860. It was adopted by the Indian government after Independence and has been amended around 77 times, but there were calls from some quarters for revamping the entire criminal justice system as it was considered obsolete and a colonial legacy.
The bills were first tabled in Parliament on August 11, and then sent to a parliamentary standing committee. Some of the suggestions of the panel were incorporated, and a set of new bills (labelled as “second”) were tabled on December 12.
Before the members voted on the bills, Shah said the key feature was that these were “citizen-centric”, explained how criminal laws would be in sync with the advancement in technology over the last 100 years, and gave a point-by-point rejoinder to some Opposition members who said that the new law gives unbridled powers to the police and make the country a police state.
“There will not be any police state in this country until this government is here... On many fronts, the power of the police has been curtailed. On others, police are also being watched,” Shah said in his address.
“After this bill is passed, there will be a uniform justice system throughout the country. From Kashmir to Kanyakumari and from Dwarka to Assam, there will be one criminal legal procedure across the country,” he said.
“These laws are being brought at a time when the Indian Constitution is going to complete 75 years, when the Modi government has given women the right to 33% reservation. It is a matter of great pride that 150-year-old laws are being repealed to make way for new ones that will govern our criminal justice system and usher in transformative changes in it,” the Union minister said.
The three bills include key changes that deal with offences of terrorism and acts against the State, enable the registration of e-FIRs, factor in corruption in election processes, and make electronic evidence a form of primary proof. Crimes such as mob lynching have been separately defined for the first time, with detailed provisions and enhanced punishment for crimes against women and children.
They also set time limits for certain processes – charge sheets need to be filed within 90 days (a court may grant a maximum of a 90-day extension on an agency’s request) and a magistrate has to take cognisance in 14 days, and criminalise acts such as mob lynching, while also decriminalising medical negligence allegations against doctors.
During the discussion, non-Bharatiya Janata Party (BJP) MPs such as Harsimrat Kaur Badal of the Shiromani Akali Dal and Asaduddin Owaisi of the AIMIM argued that the new law provided unbridled powers to police. Badal, a former Union minister, spoke about fake encounters in Punjab by the police in the 1980s.
“We cannot come up with draconian laws. We cannot become an authoritarian society when we are competing with developed countries. History has shown that minorities have suffered. I have civil rights as a human being and have a right to express. This law is going to give unbridled powers to the police. Police personnel are appointed by politicians so their allegiance will be to the political people. Our HM himself should understand how the police can misuse these laws,” Badal argued.
She said she was also concerned that the new laws allow more time for police to detain people in custody. “I am more focused on human rights angle. The new law says that besides family members no one can apply for a mercy petition. What if the person has no family?”
Owaisi cited data from research studies and NCRB about a large majority of undertrials in prisons across the country. “Many studies and NCRB data have shown that most undertrials are Muslims. How many Dalits are on death row? How long will it continue that there is unspoken reservation for Dalit and Muslims for them to stay in jail? Through this laws you are only empowering the powerful,” he said.
In the afternoon, Shah responded, saying: “Some of the members have raised concerns about some of the provisions of the laws which will be alleviated by me. But there are some members like Owaisi ji whose concerns are different and are bigger than the laws in question and their concerns should be left to linger. Moreover, I have no solutions to their concerns.”
The colonial-era sedition law, 124A of IPC, has been repealed, Shah said, but a reading of the proposed new code showed that the replacement – section 152 in the reintroduced BNS – seeks to prosecute acts of “secession or armed rebellion or subversive activities”, and that it is not milder in definition or punishment.
Shah spoke about this on Wednesday. “The [sedition] law was framed by the British. Even people like Sardar Vallabhai Patel and our freedom fighters spent years in jail because of this law. This law was already there. Some leaders protested this when they were in opposition but continued and misused it as they came to power. For the first time, PM Modi rejected section 124A, which deals with sedition. We have replaced Rajdroh (against government) with desh droh (against country). The country is independent. Anyone can protest against the government. It is their right. For this, no one needs to go to jail. But no one will be allowed to speak against the country or speak against the interest of the country.”
The minister explained the importance of including terrorism in the new law, saying that under existing laws, a person arrested for terrorism cannot be booked under IPC. For this, police have to seek permission and invoke the Unlawful Activities (Prevention) Act, or UAPA.
As suggested by the parliamentary committee, the government qualified that an officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under UAPA.
Two key recommendations of the panel – to include a gender-neutral provision criminalising adultery and a clause that criminalises non-consensual sex between men, women, trans persons and acts of bestiality in the BNS, have been rejected by the government and are not included in the revised bill.
The minister cited sections of IPC to illustrate how the law was framed by the British to punish Indian citizens, with crimes such as murder figuring only in later sections while those against the British rule were numbered higher up. “A crime such as rape was in section 376. Murder was listed as 302. [Now], except the starting chapters that explain the law in the new bills, the first sections are for crimes against women and children, followed by body-related crimes. Murder is now listed Section 101 in the new law.”
Read here: Lok Sabha passes 4 bills by voice vote; ‘Trial in Absentia’ provision introduced in criminal law
During the discussions, the home minister also denied concerns that the new laws will give police unfettered powers. “At every police station, there will be an officer, whose job will be to inform and give details (to the relatives) of the people arrested. Police will also have to give an investigation update to the relatives within 90 days.
The Opposition, however, pointed out “loopholes”.
“The new code creates two sets of anti-terror laws. The existing UAPA and now the whole set of anti-terror provisions in the new criminal codes. The codes also leave discretion to deputy SP-level officers to choose which anti-terror laws would be applicable in a case. No guidelines or criteria has been laid on how to pick between the two laws,” said Rajya Sabha member Abhishek Singhvi of the Congress, speaking on the clauses the Opposition may challenge in the Supreme Court.