The government claims that the three Bills are poised to modernise and reform India’s criminal justice system, which it considers a critical endeavour intended at replacing ‘antiquated British-era laws’ with more contemporary provisions.
Geared towards replacing the Indian Evidence Act, the Bill seeks to modernise and contemporise laws relating to evidence in India.
The Union home minister himself has said in the past that the Union government wants to do away with the provision of sedition.
By introducing fresh provisions and repealing the earlier Act, the legislation envisions an evolved framework conducive to current legal demands.
While presenting these Bills, Amit Shah emphasised their significance in discarding outdated laws rooted in the 19th century, which serve as lingering vestiges of colonial rule and are emblematic ofgulami (servitude).
The overarching purported objective of these legislative endeavours is to amalgamate and amend the legal framework pertaining to criminal procedures, evidentiary standards and offences within the Indian context.
Notably, the government claims that the Bills have undergone extensive deliberation within the esteemed Parliamentary Standing Committee Personnel, Public Grievances, Law and Justice which, as per the government, reflects the Indian government’s commitment to a thorough overhaul of the criminal justice system.
As per information provided by the government, the formulation process itself has been marked by diligent consultation with a diverse array of stakeholders, including prominent members of the judiciary such as Supreme Court and high court judges, luminaries from law universities, chief ministers, governors and other experts.
Furthermore, the government claims that the Bills draw inspiration from a plethora of recommendations emanating from various committees, underscoring the meticulous and inclusive approach to their composition.
Bharatiya Nyaya Sanhita Bill and ‘sedition’
The proposed Bharatiya Nyaya Sanhita Bill, 2023 merits particular attention, as it seeks to repeal 22 provisions of the IPC, proposes modifications to 175 existing provisions and incorporates nine new Sections— culminating in a comprehensive collection of 356 provisions.
A noteworthy announcement made by the Union home minister during his address in Lok Sabha is the complete repeal of the offence of sedition from the Bill.
Doing so has been part of the government’s agenda for quite some time. The Union home minister himself has said in the past that the Union government wants to do away with the provision of sedition (which is a crime underSection 124A of the IPC).
However, a closer examination reveals that the Bill introduces Section 150, which pertains to “acts endangering the sovereignty, unity and integrity of India”.
Section 150 ofBharatiya Nyaya Sanhita, 2023
A striking semblance exists between the repealed Section 124A of the IPC and the newly introduced Section 150.
Section 124A seeks to criminalise bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards, the government established by law.
However, concerns have arisen due to the wording of the Explanation to Section 150, which invokes the term “government”. The Explanation raises apprehensions that the essence of sedition may persist under a new guise.
Section 150 of the new Bill addresses acts that imperil the “nation’s sovereignty, unity, and integrity”.
It is not immediately clear whether the phrase “nation’s sovereignty, unity, and integrity” will give rights preserved underArticle 19 of the Indian Constitution more breathing space than ‘promoting disaffection against the government established by law’.
However, concerns have arisen due to the wording of the Explanation to Section 150, which invokes the term “government”.
The Explanation raises apprehensions that the essence of sedition may persist under a new guise.
Moreover, punishment for the crime of sedition has been enhanced, from three years to seven years of imprisonment, accompanied by a monetary fine.
This transformation creates ambiguity regarding the demarcation between safeguarded speech and potentially punishable expressions.
Exacerbating these concerns, the Bill lacks safeguards against misuse of Section 150, such as the requirement for the government to establish an intent to incite violence or hatred. Section 124A of the IPC is criticised for this reason as well.
The yearning for legal clarity was accentuated by the Supreme Court’sOrder in S.G. Vombatkere versus Union of India, on May 11, 2022.
The court hadurged the Union and state governments to refrain from registering sedition cases under existing provisions and to keep the law in abeyance until the Parliament framed a new law on the matter.
A consensus emerged between the Union government and the Bench, comprising the former Chief Justice of India N.V. Ramana and Justices Surya Kant and Hima Kohli, that Section 124A’s rigour was tailored for colonial times.
Interestingly, the 22nd Law Commission of India, in itsreport in April 2023, recommended retaining Section 124A, with specified amendments.
The Law Commission’s objective was to integrate the principles enunciated in the legal precedent ofKedar Nath Singh versus State of Bihar, thereby enhancing the provision’s clarity and applicability.
In a nutshell, in Kedar Nath it was stated by the Supreme Court that Section 124A cannot be interpreted literally.
Amid these legal developments, apprehensions have emerged regarding potential misuse of the new legislation, particularly its deployment against government critics and dissenting voices.
Acomprehensive study by the National Law University, Delhi for the period from 2010 to 2020 revealed that 93 percent of Section 124A cases targeted political dissidents.
Section 124A has been frequently used against journalists, activists and students, thereby raising concerns about its potential to stifle legitimate discourse, even if unsavoury for the government of the time.
The path forward is marked by the complex dynamics within the Home Ministry Standing Committee. Notably, 16 of the committee’s 31 members belong to the Bharatiya Janata Party (BJP).
One member is from Shiv Sena, which is also a part of the ruling coalition of National Democratic Alliance (NDA); two are from Biju Janata Dal (BJD) MPs; and one from the Yuvajana Sramika Rythu Congress Party.
Amid the legal developments, apprehensions have emerged regarding potential misuse of the new legislation, particularly its deployment against government critics and dissenting voices.
The two parties generally side with the Modi government. These dynamics will potentially limit the scope for substantive amendments.
With the NDA’S formidable majority in Lok Sabha and the presence of friendly parties in Rajya Sabha, it will be a cakewalk to pass the Bills, thus increasing the risk of moving forward with a predetermined legislative trajectory.
As India stands at this crucial juncture, the onus rests upon individuals, institutions and the society at large to safeguard and fortify the cherished right to articulate dissent and critique.
The freezing of sedition provision was a step forward, but the Bharatiya Sanhita Suraksha Bill, 2023 is a step back.