The government's new bills to replace colonial-era legislation in India have raised concerns about language and content, highlighting the need for more debate
I never thought I would question the need to do away with legislation passed during the British Raj, which drafted laws to help maintain the hold of foreigners over India. For far too long, Indians have been complaining that they live in a democracy whose government should be aimed at protecting their liberties rather than enforcing what they saw as servitude.
A major potential improvement in the new bills is adding community service as a possible punishment for petty offences. (Getty Images)
Now, the Bharatiya Janata Party (BJP) government claims that it has provided that release from the colonial past. On the last day of the monsoon session of Parliament, the Union home minister (HM) introduced three bills to replace the Indian Penal Code, the Indian Evidence Act and the Code of Criminal Procedure. They are being replaced by legislation with deliberate Hindi names: the Bharatiya Nyaya Sanhita, the Bharatiya Sakshya, and the Bharatiya Nagarik Suraksha Sanhita. They are national bills with names in Hindi. Already, some prominent politicians and political parties have questioned the naming of the bills in Hindi, arguing that it is unconstitutional. They could well be highly divisive bills in states where Hindi is not the dominant language.
Language is only one of the problems with the bills. As they cover wide criminal activities and carry serious penalties, it seems peculiar that the HM should introduce them in Parliament right at the end of the session. Though he said the bills would be sent to a parliamentary committee, it would surely have been more appropriate to introduce them when there was some time for discussion. The bills represent a complete overhaul of criminal laws. However, the old laws were not set in stone and were amended from time to time. An obvious example is the decriminalisation of homosexuality and the recent demands for marriage equality. Might it not have been wiser to discuss amending the existing laws in a progressive manner, rather than abolishing them in their entirety?
The contents of the bills also raise questions about how far the old acts have actually been abolished. Take the HM’s claim of having repealed sedition. He is correct in saying that the word sedition does not appear in any of the three new bills. Many, however, will question whether he has really abolished sedition or rather changed it into different forms in the new act. Sedition has been misused by governments in the past and might now be prone to even worse misuse. The HM has said that the Bharatiya Nyaya Sanhita contains penalties for “encouraging feelings of separatist activities” as well as “endangering the sovereignty, unity and integrity of India”. These provisions are no longer called sedition but it is difficult to see how they differ from the original act. In fact, this act appears to be expanded by including phrases such as “encouraging feelings of separatist activities”.
A major potential improvement in the new bills is adding community service as a possible punishment for petty offences. If sensitively used and effectively administered, this could mean fewer people going to prisons, which are already severely overcrowded. Amnesty International noted that India’s number of undertrials is “far higher than in other democracies around the world.” Unfortunately, these figures may not reduce much by introducing community service as a possible punishment. If the government is seriously concerned about India’s prison population, the HM should persuade his colleague, the Union law minister, to introduce radical reforms to the antiquated legal system. An obvious required reform is accelerating the hearing of cases.
The proposed pieces of legislation have been sent to a parliamentary committee for discussion. In theory, the bills may still not be in their final form. But with the BJP’s clear majority in Parliament, and this government’s record of passing bills with little or no discussion, it would seem unlikely that there will be major changes to the committee’s discussions.
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