Yesterday, lawyers, academics and civil society activists gathered at the India International Centre to flag the three new criminal laws and stated that the object of the legislation is not to undo coloniality but to suppress dissent.
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“Provision on bail has been diluted by the recent Supreme Court judgment. I do not know what these new Bills would do.” Thus wondered Justice Madan Lokur, former judge of the Supreme Court.
He was referring to the Gurwinder Singh judgment of the Supreme Court, in which a division Bench has held that under the Unlawful Activities (Prevention) Act, 1967 (UAPA), jail and not bail is the norm.
Justice Lokur was speaking at an event at the India International Centre, New Delhi on Decoding the New Criminal Laws. The event was organised by the Campaign for Judicial Accountability and Reforms (CJAR) and Common Cause, India.
The ‘Bills’ Justice Lokur was referring to are the three new Acts: Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA), which will replace the Indian Penal Code (IPC), 1860; Code of Criminal Procedure (CrPC), 1973 and Indian Evidence Act, 1872 respectively.
The three Bills have been notified for enforcement from July 1.
The event also included speakers Anup Surendranath from Project 39A of the National University of Delhi; Vrinda Grover, advocate at the Supreme Court; Professor Mohan Gopal, former director of the National Judicial Academy; and Sarim Naved, criminal lawyer. Anjali Bharadwaj moderated the event.
Justice Lokur drew the attention of the audience to the impracticality of the implementation of Section 258 of the BNSS. The provision provides that judgments must be pronounced within thirty days of the conclusion of the hearings, which could be extended to forty-five days.
He narrated an incident from Uttar Pradesh, where once a direction had been passed that 14 murder cases must be decided by a lower court within a month, but it led to utter chaos.
Justice Lokur told the audience that as many as 400 appeals were filed before the Allahabad High Court and it continues to bear the brunt of this direction.
Concentrated attack on Article 19
Gopal briefly talked about Section 111 of the BNS which defines terrorist acts. He stated that the initial draft of the BNS provided an “open-sky” definition of terrorism, whereas the final draft made the definition identical to Section 15 of the UAPA.
He added that the provision gives statutory power to a police officer not below the rank of the superintendent to decide whether to prosecute a person suspected of terrorist activities under the BNS or the UAPA.
Gopal also referred to a provision on handcuffing under Section 43(3) of the BNSS. He commented that two dicta of Justice V.R. Krishna Iyer have been reversed recently. One is on handcuffing and another is the decision that granting bail is not a norm under the UAPA.
Taking these as a reference, he stated that many provisions under the three criminal Bills indicate a concentrated attack on Article 19 of the Indian Constitution, particularly on free speech, the right to form unions and the right to assembly.
Further, he pointed out that the offence of sedition is not gone. It has only become “treason plus [sedition]” under Section 152 (act endangering sovereignty, unity and integrity of India) of the BNS.
He asserted that the claims of colonialism to overhaul these laws are an attempt to establish “Hindu Rashtra”. Jokingly, he remarked that any brutality that would be committed from July 1 onwards would be “Bharatiya brutality”.
Gopal concluded by stating that the Bills are an attempt at nothing but suppressing dissent and opposition.
He said: “What we are seeing is a new and unprecedented use of criminal law, completely disconnected from the idea of crime and punishment. We will have to invoke constitutional law in courts from when these laws will be notified.”
Concentrated attack on Article 21
While Gopal’s focus was on Article 19, Grover focused on Article 21. She stated that we must not forget the constitutional roots of criminal laws which are traced from Articles 19 and 21.
Grover began by referring to K.G. Kannabiran, who wrote in her book The Wages of Impunity: Power, Justice and Human Rights’ that civil liberty is a journey from being a subject to a rights-bearing citizen.
Grover stated that from subjects to citizens, we have now become suspect and supplicant under the new laws. She explained that citizens are no longer considered rights-bearing.
She discussed a few provisions of the BNSS. She specifically stated that under Section 196 of the BNSS, the term ‘judicial’ has been omitted. This provision provides that if a person dies or disappears or a woman is raped when in the custody of the police, a magistrate is empowered to conduct an inquiry into the cause of it.
Grover pointed out that by omitting the term ‘judicial’, the provision simply allows for an inquiry that could be conducted by an executive magistrate.
On this, she remarked that custodial torture is a reality and that is why, an amendment in 2005 was made to Section 176(1A) of the CrPC to have a judicial magistrate inquiry in such situations.
She also pointed out that India has signed the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment but failed to ratify it. In each of the universal periodic reviews, India has stated that it would enact a law prohibiting custodial torture.
With the amendment to the BNSS, the laws are in defiance of the judgment in Public Union for Civil Liberties versus State of Maharastra (2014) by the Supreme Court, where it was held that it is mandatory to have a judicial enquiry in cases of police encounters or extrajudicial killings.
Grover stated that the recent death of a farmer by alleged use of force by the Haryana Police is one such instance where judicial magistrate inquiry becomes necessary.
Another concern that Grover pointed out was that Section 377 of the IPC, which covered unnatural offences, has now been deleted. She stated that under the BNS, there is no provision that could cover a situation of non-consensual sexual intercourse which is particularly concerning in cases of transgenders who face extreme levels of harassment.
Grover flagged the provision on police custody which now essentially allows police custody beyond 15 days of remand. She stated that under Section 167 of the CrPC, a police officer can take a person on remand for 15 days for investigation, recovery, etc. If the custody has to be extended beyond 15 days, an application for the same has to be made to the magistrate.
Now, under Section 187 of the BNSS, the police can take 15 days of custody but the period of 15 days could be staggered. For instance, if for an offence a chargesheet has to be filed within 90 days, the police officer can take custody at any time within the period of 90 days.
Grover stated that this has far-reaching implications on bail and the possibility of custodial torture which ultimately impacts life and liberty.
Lastly, she asserted that certain provisions such as those that punish women for voluntarily having miscarriages continue in the new laws.
Grover remarked that the perception that India gives the right to women to abort is wrong because it is only permitted after a medical opinion is given. She concluded that the State’s control over women, their bodies and sexuality continues.
“Patriarcy to paternalism is not something women are seeking,” Grover concluded.
What made the earlier criminal laws colonial?
Surendranath questioned the argument of coloniality to overhaul the existing criminal justice system.
He asked if the laws were colonial just because they had been drafted at a time when India was under British rule.
Surendranath stated that the quest to determine the argument on coloniality was much deeper and it had to do with the kind of accountability the State offered to its citizens. He referred to a few provisions to substantiate his claims.
On bail, he stated that Section 436A of the CrPC provides that if an undertrial prisoner has undergone half of the period of imprisonment, they could be released on bail excluding those that have been awarded the death penalty.
Surendranath pointed out that now Section 479 of the BNSS has also excluded those persons who have been granted life imprisonment from this provision of bail.
On police custody, Surendranath had a different interpretation to that of Grover. He stated that the BNSS expands police custody for a total of 60 or 90 days.
He referred to Section 167 of the CrPC and stated that the provision provided that the magistrate may authorise the detention of the accused person, “otherwise than in the custody of the police,” beyond the period of 15 days. However, Section 187 of the BNSS omits the words “otherwise than in the custody of the police”.
Surendranatha flagged that the uncertainty in such a crucial provision is problematic. He added that this may be worse than the UAPA which provides for a total of 30 days of custody and then the procedure for extending the custody follows. However, here the potential reading suggests an extension of police custody to 60 or 90 days.
He also spoke on the overreliance of the BSA on collecting forensic evidence. Under the BSA, for offences punishable for seven years or more, forensic evidence must be necessarily given.
Surendranath stated that the BSA gives five years to states to implement these provisions. He asserted that this has to be mapped against the massive investment that the government is making in national forensic science universities across the country.
Surendranath explained that while the BSA emphasises forensic evidence, it offers little scrutiny of that evidence. It expands the exemption of certain government and scientific experts to be called to the court.
Further, the kind of samples that could be collected and from whom they would be collected have been expanded. From signatures to handwritings in the current law, the BSA provides for collecting voice samples and fingerprints.
Another point flagged by Surendranath is that now it is no longer open to the court to question the genuineness of the expert witnesses unless one of the parties challenges it.
He concluded by stating that the language of the overhaul has political significance more than anything else.
Naved reiterated the concerns flagged by the earlier speakers and concluded that the new laws would lead to utter chaos.
