New code will entrench prejudices in the police - Hindustan Times
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New code will entrench prejudices in the police

Nov 24, 2023 08:00 AM IST

The proposed penal code entrenches the status quo of colonial and casteist policing

The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Bill are set to replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act (IEA). The BNS, which is to replace the Indian Penal Code (IPC), 1860, bolsters policing powers through the inclusion of new categories of petty offences to deal with “organised crimes”, thereby entrenching casteist and colonial tropes of criminality.

Everyday policing in India is primarily driven by petty offences. (PTI)
Everyday policing in India is primarily driven by petty offences. (PTI)

Section 110 of BNS mentions a host of acts ranging from pickpocketing, snatching, theft through shoplifting or card skimming, ATM thefts, illegal sale of tickets, and question papers for public exams that “causes general feelings of insecurity among citizens” as petty crimes. Such crimes that invoke these undefined “feelings of insecurity” are characterised as organised petty theft committed by organised criminal groups or gangs. The provisions penalise the commission or attempt to commit any petty organised crime with imprisonment for a minimum of one year and a maximum of seven years, along with a fine. First, it is absurd to treat the attempt and commission of a crime at par while considering punishment. Second, the broad scope of the section provides wide amplitude for the police to exercise discretion.

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The history of “organised crime” in India is rooted in the “colonial discovery” of the thuggee and the phenomenon of organised groups engaging in highway robbery and other crimes. The colonial preoccupation with the idea of the “mob” led to the criminalisation of nomadic and semi-nomadic groups of traders, who threatened social order. It led to the formulation of the Criminal Tribes Act, 1871, which created the category of “criminals by birth” and subsequently, the current formulation of an administratively neutral and nebulous habitual offenders (HOs) regime. Police discretion is, therefore, central to the determination of thugs and “criminal tribes”.

Everyday policing in India is primarily driven by petty offences. Known as “broken windows policing”, this approach makes the prevention of serious crimes contingent upon the maintenance of order by policing low-level offences. A report by the Criminal Justice and Police Accountability Project (CPA Project) about policing during the pandemic in Madhya Pradesh (MP) reveals that during the pandemic, around 80% of the arrests made in MP during lockdowns were for low-level offences. This includes gambling and excise crimes, both punishable by less than seven years. Further, many arrests were made primarily for the production of small quantities of liquor (mahua) by Adivasi and Vimukta communities.

Within the ambit of low-level crimes, the most common offences are those which arise out of small disputes booked under a combination of IPC Sections 294 (obscene words, etc.), 323 (voluntarily causing hurt), and 506 (criminal intimidation). The offences of obscenity, simple hurt, and criminal intimidation are seemingly unnecessary escalations of small conflicts and fall under the police’s order maintenance functions. The persons arrested in these cases could have been let off with a notice issued under section 41-A of the existing Code of Criminal Procedure (CrPC) in accordance with the Supreme Court’s observation in Arnesh Kumar, which states that casual or unnecessary arrests cannot be made by the police. Close to 25% of the total arrested during the lockdown belonged to the Muslim community, who account for merely 6.57% of the MP population, according to a CPA Project report. Further individuals belonging to SC, ST and OBC categories accounted for over 72% of the arrests during the lockdown.

The report found that a disproportionate representation of certain communities in arrest data is the result of them being criminalised under specific laws. This is corroborated by the annual Prison Statistics of India Report, 2021 published by the National Crime Records Bureau (NCRB), which states that 36,868 undertrial prisoners (UTPs) are facing charges of theft —that is 8.6% of all UTPs. The arrests and NCRB reports dispel the common perception that policing is focused on curbing heinous offences.

Petty offences form the basis of branding and initiating habitual offender (HO) proceedings. This regime leaves it to the police to construct and define a HO. Policing discretion exercised through a host of petty offences is central to the categorisation of individuals as HO, which ostensibly has the effect of criminalising the same communities once targeted by the colonial regime through the Thuggee and Criminal Tribes Act framework. In short, the proposed penal code entrenches the status quo of colonial, casteist policing.

Nikita Sonavane and Sagar Soni are members of the Criminal Justice and Police Accountability Project (CPA Project) and Sanjana Meshram, also associated with the CPA Project, provided inputs for the article. The views expressed are personal

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