Lawless laws: The criminal law amendments and ‘decolonisation’ as an anti-feminist goal

1. The three new criminal laws meant to overhaul India's criminal justice system are set to come into force on July 1, 2024, but beyond packaging old wine in a new bottle, do even the new provisions move forward the cause of justice?

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IN The Wretched of the Earth, Franz Fanon writes that decolonisation, which sets out to change the world order, is, obviously, a programme of complete disorder.

The three new criminal laws, Bhartiya Nyaya (Second) Sanhita (BNS), Bhartiya Nagarik Suraksha (Second) Sanhita (BNSS), Bhartiya Sakshya (Second) Bill (BSB), amending the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure Act, 1973 and the Indian Evidence Act, 1872 respectively, which are coming into force from July 1, 2024, are also likely to set into motion a programme of complete disorder and chaos.

However, they are not going to lead to actual decolonisation, as has been assured by various officials of the Union Home ministry, including the Union Home minister, who has repeatedly asserted that the purpose of the reforms is to decolonise criminal law and put in place laws "imbibed with the Indian soul". 

Even reports of the Parliamentary Standing Committee on Home Affairs heaped praises upon the Union Home ministry for "making new laws that imbibe Indian thought process and the Indian soul".

Eyes and the wool

A scrutiny of the three laws reveals that 'decolonisation' here is used as an empty metaphor, bereft of any agenda to subvert or overhaul India's criminal justice system, admittedly largely inherited from a colonial past.

Instead, decolonisation is used as a populist trope by the Union home ministry to bypass the hard work of imbibing the criminal justice system with constitutional ethos instead of imbibing it with some imagined 'authentic' 'Indian soul'.

Indeed, structurally, apart from changing the names of the three codes, by vernacularising them to Hindi, the so-called changes the laws have made are bringing in few amendments, rearranging and merging sections of the existing codes in what is likely to generate a lot of undesirable consequences.

Also read: Explained: The revised criminal law Bills

In fact, if anecdotal evidence is to be trusted, it has already started generating a mix of confusion and chaos amongst the stakeholders of the criminal justice administration.

Far from the decolonisation of the criminal justice system, some of the amendments brought forth by these laws present serious concerns about the fundamental rights of individuals and tend to relegate citizen to a subject of a carceral State stripped of dignity, privacy and liberty.

Together, the three laws have provisions that have massively expanded the State's powers by introducing special crimes within the BNS/IPC and have remodelled and upgraded sedition law in a new package that can potentially have a devastating impact on free speech and drastically increases power of the police to take an accused into custody for 15 days in a staggered manner across the first 40/60 days of the investigation.

The codes also are plagued by vagueness, which is antithetical to the drafting of any penal statute, and have several errors and inconsistencies, which is a predictable outcome of the hasty, opaque, non-consultative and undemocratic manner in which these have been tabled, referred and passed by the Parliament without any debate, at a time which witnessed an unprecedented suspension of 146 Opposition members of the Parliament.

Given the text and the context of the codes/sanhitas, it is possible to read the promise of 'decolonisation' in only two ways.

First, decolonisation as neo-colonisation or recolonisation of citizens to strip them of their autonomy, dignity and rights, i.e., their citizenship in a constitutional republic, by reconstituting and recasting their subjectivity in the carceral fabric of the neo-colonial Indian state which seeks to discipline and punish.

Second, decolonisation as a project of going back to pre-colonial times, to a mythical ancient land of imagined or invented 'Indian thought process and Indian soul', to a land, which is distinctly pre-Macaulay and arguably pre-modern.

Here decolonisation becomes a trope to be used for precolonisation, a hark back to premodern times. Precolonial times are imagined as 'Hindu' where a sanhita can comfortably replace the code.

Also read: The three new criminal law Bills: Missed opportunities and misplaced priorities

After all, Macaulay has been regarded with contempt by right-wing ideologues and 19th-century orthodox reactionaries alike, as the harbinger of colonial modernity on an indigenous soil, thus destroying a mythical glorious past.

Them childish women!

An interpretive exercise of some clauses of the troika of 'decolonisation' may be able to demonstrate this spectacular legislative acrobatic— specifically in the range of offences brought under Chapter V of the BNS with the curious chapter heading 'offences against woman and child', with several sub-classification, namely 'of sexual offences', 'of criminal force and assault against women', 'of offences relating to marriage', 'of the causing of miscarriage, etc.' and 'of offences against child'.

One wonders what legislative logic serves to exceptionalise crimes against 'woman' under a distinct category, where women are clubbed together with children. The signalling is clear— that women, like children, need protection—  of the State, community and family.

In a scenario like this, one must question, can a woman (or a child for that matter) demand protection from the state, community and her family, to defend her autonomy— physical, sexual, emotional, intellectual, political, cultural or decisional?

From 2002 Gujarat to Khairlanji and Hathras, Hadiya and Gulfisha Fatima, the institutional signalling of patriarchy in preserving and protecting caste and kinship, community and nation, has been loud and clear.

It is impossible to not draw a parallel with the colonial State and its relationship with women's autonomy in this context. 

As serious scholarship (Tanika Sarkar, et al) of this gendered history of a colonial past has demonstrated, while in the 19th century colonial State individual rights were neither inalienable nor articulated in the vocabulary of individual identity of self, distinguishable from the referential frames of family or community or State to which rights were seen to be connected, yet in the emergent public debates surrounding child marriage, widow immolation and widow remarriage, her right to life emerged in the context of preventing violent physical death for her.

Also read: What does 'Indianisation' and 'reform' mean in the context of the three new criminal law Bills?

The age of consent debate, which rocked the nineteenth-century colonial public sphere and refashioned the relationship between the colonial State and its native subjects, was also framed not in the language of autonomy of rights but as a need to rationalise the age of consent as the age of puberty, to assuage religious and community anxieties.

Consent in the sanhita, one may argue, presents itself, first as tragedy, then as farce. Section 69 of the BNS, for instance, states that whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse, not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

'Deceitful means' is explained away as inducement for, or false promise of, employment or promotion, or marrying by suppressing identity. While 'false promise of employment or promotion' carries the flavour of quid pro quo and harassment in law governing sexual harassment at workplace, marrying by 'suppressing identity' has long been expressed through the pejorative of 'love jihad'.

It is a fact that sexual intercourse based on false promise to marry has for long been criminalised as 'rape' through a series of judicial pronouncements within the meaning of Section 375 of the IPC, by an interpretive exercise of reading 'consent' under Section 90 of the IPC, where consent given under a misconception of fact, such as a false promise to marry, is not consent.

In this context, a close look at Section 90 reveals that it has two elements, namely, the consent of a woman should be based on a misconception of fact, and the offender should know or have reason to believe that the said consent was given under a misconception.

Section 69 of the BNS makes both the knowledge on the part of the offender that the sexual intercourse was based on a promise and the consent of women irrelevant.

Also read: Law Commission recommends retaining sedition as a crime; suggests making the law more stringent

The Supreme Court, it needs to be stated, has clarified in Uday versus State of Karnataka that whether false promise to marry amounts to rape ought to be decided on a case-by-case basis, depending on two tests.

First, whether consent was taken under a false promise to marriage where the offender had no intention to fulfil it. Second, the offender believed that consent was given on the basis of a false promise.

Fostering a sexual security State apparatus through such a provision opens up multiple possibilities of misuse of such law, in a climate governed by opposition to inter-religious and inter-caste marriages or even relationships especially where such a provision seems to oust the autonomy of women by deeming her only as a victim.

The Supreme Court and high courts, in a slew of judgments (Hadiya, Lata Singh, Anees Hamid and Shakti Vahini, to name a few) have clarified and advanced the right to marry a person of one's choice as a core principle of constitutional liberty and have even laid down a series of recommendations to ensure that interfaith and inter-caste couples are protected, so such a provision moving the clock back is inexplicable and confusing.

While assessing Macaulay's IPC is a complex task and outside the purview of this essay, it cannot be denied that the IPC, like its maker, was the product of a particular time and space, cultural, political as well as intellectual, and an expression of British imperial policies. It was, as such, also informed and bound by the limits of their experiences and outlook.

The baby and the bathwater

Similarly, it will also be grossly reductionist to dismiss the IPC as an essential tool of colonial power. While making the law more effective and legitimate in a culturally diverse landscape was about colonial sovereignty, promotion of the rule of law and reduction of discretionary authority and status differences amongst the colonial subjects, in pursuit of 'uniformity where you can have it; diversity where you must have it; but in all cases certainty' as Macaulay put it, was a march in favour of leading ideas expressed in the early 19th-century English law reform debates. This is not to discount or ignore the despotism of colonial law.

Also read: The three new criminal laws betray a narrow spirit of nationalism

However, the new criminal laws do not usher in a break in the despotism of colonial law; what they do is herald the despotism of a police State instead, by dehumanising an already frail criminal justice administration with poor infrastructure and facilities in courts, and fragile investigation and prosecution.

Contrary to the self-adulatory claims of the Union government, the new criminal laws neither are victim-centric nor women-friendly. Section 173(1) of the BNSS under the chapter "information to the police and their powers to investigate", provides statutory backing to what is known as 'zero FIRs', developed through a string of case laws.

While this may be a welcome addition, the proviso to the said clause thoroughly dilutes the legal position on registering an FIR in the first place by giving the police practically an unbridled power to not automatically register an FIR based on a complaint in the category of offences where the punishment ranges between three and seven years.

In a twisted and ill-informed application of Lalita Kumari, the police are given the option to hold "preliminary enquiries" and determine if a "prima facie" case exists before registering an FIR.

In a country where an overburdened police force is always eager to 'burk' (whereby the police do not entertain complaints in cognisable cases, or misrepresent a non-cognisable vase as a cognisable one to avoid entertaining a complaint due to political or other pressure or corruption), such arbitrary discretion to police was neither desirable nor necessary.

Decolonisation is used as a trope to usher in an overtly carceral State built on the colonial state that it seemingly disavows.

Also read: The unconstitutional trinity— Part 1: Examining the unholy 'ghost' of BNSS

'Sedition', with its totemic significance as a relic of colonial law, the "prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen", as described by M.K. Gandhi, is artfully removed by the postcolonial State in the sanhita only to be replaced by Section 152 ('act endangering sovereignty, unity and integrity of India'), in a new nomenclature, giving effect to the recommendations of the 22nd Law Commission of India, which suggested that the offence be retained and the punishment enhanced to seven years or life imprisonment.

It needs to be emphasised that this is done at a time when several challenges to 'sedition' are pending before the Supreme Court and where the court in an interim Order has kept all pending proceedings on sedition in abeyance and stayed fresh cases under the said Section to be initiated pending disposal of the batch of petitions.

The definition of 'terrorism' in Section 113 of the BNS has been lifted from Section 15 of the draconian terror law (the Unlawful Activities Prevention Act, 1967), and inserted in the BNS without any procedural safeguard in the making of this carceral republic. One wonders what decolonial exercise it serves.

A truly decolonial exercise would have been to break away from State impunity and disassociate from the tendency of political power to self-aggrandise and entrench in consolidating State power.

Sexual impunity, after all, breeds where despotism of State power runs wild. Without understanding the linkages between the two, no decolonial exercise will usher in any restatement of feminist goals in a carceral State.

Decolonisation of institutions remains outside the shadows of this enterprise of criminal law reform, with no care or concern about how the regimen of increased sentencing and harsher punishment including the introduction of the death penalty in several offences will overpopulate the prison complex.