A close analysis of the triad of Bills brought in to reform the criminal justice system reveals that they fall short of the intended mark.
—-
THE Union home minister Amit Shah presented a trio of Bills with the stated objective of revitalising India’s justice system.
These are, the Bharatiya Nyaya Sanhita Bill, 2023 to consolidate and amend provisions related to offences and connected matters.
The Bharatiya Nagarik Suraksha Sanhita Bill, 2023 to consolidate and amend laws relating to criminal procedure.
The Bharatiya Sakshya Bill, 2023 to consolidate and provide general rules and principles of evidence for fair trial.
These proposed legislative amendments encompass substantial revisions to the existing Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act (IEA) respectively.
The underlying motif threading these Bills is the elevation of justice above punitive measures, harmonising the legal structure with the evolving requisites of society.
These Bills demonstrates the government’s concerted efforts to translate the nomenclature into Hindi while upholding the substantive content exclusively in English, ostensibly as a means to distance itself from the perceived influence of ‘English laws’ (although the precise mechanisms of this intended dissociation remain somewhat enigmatic).
The underlying motif threading these Bills is the elevation of justice above punitive measures, harmonising the legal structure with the evolving requisites of society.
It becomes crucial to shift our focus towards specific and noteworthy modifications introduced through these Bills. At first glance, these amendments might appear to involve a reconfiguration of existing Sections, a characterisation that holds a reasonable degree of accuracy. However, upon closer examination, these revisions conspicuously falter in three key areas.
This piece primarily analyses the extent to which the Bills have effectively achieved their objective of decolonisation.
Subsequently, it explores how the Bills are aiming to progress towards embracing a justice-centric paradigm, shifting away from the prevailing emphasis on penalisation.
Lastly, it looks into the compatibility of the digitalisation initiative with rulings made by the Supreme Court.
These three themes of analysis have been selected in consideration of the Parliamentary speech delivered by Amit Shah during the introduction of the Bills.
Also read: BNSS introduces handcuffs and in-absentia trials, widens preventive detention and police custody
Decolonisation of laws
Amit Shah’s discourse in the parliamentary arena consistently emphasised the intention behind the new Bills as an effort to dissociate the legal framework from the ‘English laws’ inherited from the British colonial era.
This reiterated stance positions the recent legislative measure as a concerted endeavour to initiate a decolonisation process within the domain of criminal law.
However, the question arises: can the mere removal of references to British rules from legal texts and the reordering of Sections to give precedence to more severe offences genuinely amount to authentic decolonisation?
The IPC encountered significant criticism due to its retention of the charge of sedition, a colonial-era law that was employed to penalise Indian nationalists advocating for independence. In an apparent departure from British legal traditions, Amit Shah underscored the ‘elimination’ of sedition.
However, a broader provision, denoted as Section 150 within the new Bill, appears to have been introduced as its replacement. This substitution not only raises inquiries about the underlying purpose and impetus behind decolonisation but also stands in stark contradiction to the proclaimed emphasis on justice-oriented reforms rather than a punitive approach.
Another emblematic illustration of the seemingly thoughtless approach to decolonisation is starkly apparent through the complete omission of Section 377, which historically targeted acts deemed as “unnatural offences”.
Contrary to this, the Navtej Singh Johar case led to only a partial revocation of Section 377, rendering homosexuality non-criminal, while retaining criminalisation for acts like sodomy and bestiality.
However, the recent legislative action opts for an all-encompassing alteration by entirely expunging Section 377.
This instance becomes a poignant reflection of how the attempt at decolonisation, rather than substantively engaging with intricate legal nuances, may potentially undermine the depth and meaningfulness of the decolonisation process.
Authentic decolonisation necessitates a holistic reshaping of the existing legal structures and power dynamics that uphold colonial legacies, extending beyond mere semantic alterations.
Cosmetic language adjustments fail to address the profound underpinnings of colonial ideologies that might continue to shape legal doctrines.
Can the mere removal of British rules references from legal texts and the reordering of Sections to give precedence to more severe offences genuinely amount to authentic decolonisation?
The omission of specific terms or the rearrangement of Sections, as pursued, does not effectively engage with the substantive aspects of colonial legacy that the government purportedly seeks to address.
True decolonisation of laws would entail an extensive revamping of jurisprudential foundations, a recognition of historical injustices perpetrated by colonial laws, and a resolute commitment to rectify these historical wrongs.
Moreover, the scope of decolonisation extends beyond the act of erasure. It demands a rigorous interrogation of the Western epistemological foundations that have historically underpinned legal systems.
Essential to this process is the challenging and transcending of Western legal paradigms— a core facet of the decolonial enterprise. The comprehensive decolonisation of law requires a proactive engagement with non-Western knowledge systems, accompanied by a critical reassessment of the implicit assumptions embedded in the legal framework.
Also read: Bharatiya Nyaya Sanhita: Problematic Drafting of the New Provisions
Sentencing policy
The reordering of Sections within the IPC, particularly the placement of more heinous crimes at the outset, appears as a symbolic move towards ‘prioritising’ justice.
However, this structural rearrangement, though apparent, overlooks the core principles that continue to inform legal practices. The mere juxtaposition of Sections does not necessarily reorient the principles of justice.
The fundamental essence underlying these Bills, which places an emphasis on prioritising justice over punitive measures, marks a promising departure from conventional paradigms.
The Indian justice system has frequently faced censure for its inclination towards retribution as opposed to rehabilitation and equitable resolution.
Nonetheless, the current Bills appear to lack a clear demonstration of this commitment. The manner in which this transformative shift is envisaged through the new legislative measures remains unclarified.
Further, while the Bills propose sweeping changes to the IPC, the CrPC, and the IEA, one notable aspect is the absence of a uniform sentencing policy. A missed opportunity, perhaps, but a significant one.
The attempt at decolonisation, rather than substantively engaging with intricate legal nuances, may potentially undermine the depth and meaningfulness of the decolonisation process.
A uniform sentencing policy could have further solidified the commitment to justice by ensuring equitable punishments for similar offences, regardless of socio-economic background or other factors.
The pressing need for such a policy becomes even more apparent when examining recent instances where inconsistencies marred the pursuit of justice.
In the defamation case against Rahul Gandhi, where a two-year maximum sentence was awarded without substantial rationale, and in the Bilkis Bano case, where rapists charged under a Section punishable by death received remissions, a troubling pattern has emerged.
These examples underscore the urgency of incorporating a stringent and coherent sentencing policy into the fabric of the criminal justice system.
While the reordering of Sections within the IPC may be symbolic, its transformative potential hinges on a more comprehensive overhaul.
This entails embracing a uniform sentencing policy that eradicates inconsistencies, ensures proportionality, and echoes the principle of equitable justice. The absence of such a policy leaves room for disparate outcomes, undermining the very essence of justice itself.
Digitalisation
By introducing provisions for digitalisation in the new Sakshya Bill (replacement of the IEA), the government has taken a commendable leap forward, demonstrating its readiness to embrace technological progress.
However, it is worth considering that a more comprehensive approach might have involved addressing the longstanding ambiguities surrounding electronic law in India. While these provisions signify a proactive stance, they could have been complemented by efforts to provide clarity and coherence to the existing landscape of electronic legalities.
In essence, while the leap towards digitalisation is laudable, a parallel effort to untangle the intricate web of electronic legal matters could have yielded a more holistic and impactful transformation of the legal framework.
The mere juxtaposition of Sections does not necessarily reorient the principles of justice.
Consider the audacious move towards digitalisation of evidence law. The domain of digital evidence has traversed numerous phases of scrutiny by the judiciary, commencing from the pivotal Anvar P.V. versus P.K. Basheer, evolving through Shafhi Mohammad versus State of H.P., and ultimately crystallising in the landmark Arjun Panditrao Khotkar versus Kailash Kushanrao Gorantyal case.
The courts have meticulously navigated multifaceted aspects of electronic evidence while interpreting Section 65B of the IEA, outlining a firmly established procedural framework.
The prospect of disrupting this established equilibrium is unwarranted, given that any potential alteration would either unsettle the prevailing framework or amount to a redundant reiteration.
This reality stands in stark contrast to the situation on the ground. In 2020, the Supreme Court, in Paramvir Singh Saini versus Baljit Singh, issued a directive mandating CCTV installations in all police stations across the nation.
However, a disheartening report submitted to the Supreme Court in 2023 reveals an alarming discrepancy.
A mere two Union Territories— Andaman and Nicobar and Ladakh— and two States— Mizoram and Goa— have executed this directive.
Against this backdrop, the viability of the provision mandating videography of challan and chargesheet, as articulated by Amit Shah in a parliamentary discourse, remains under question.
Given the glaring disparity between lofty mandates and actual implementation, one must question the practicality and efficacy of enforcing such a directive.
The aspirational rhetoric must be met with a tangible commitment to execution, lest it fall prey to the same pitfalls that have beset prior initiatives. Clarity on the implications of this provision is paramount, as its mere articulation without a strategic roadmap risks diluting the intended impact and leaving it as yet another well-intentioned yet unrealised ambition.
Conclusion
In conclusion, the evident constraints and shortcomings embedded within the new legislative Bills serve as a compelling counterpoint to the sweeping transformation purportedly envisioned for the criminal justice system.
Rather than heralding a seamless overhaul, these limitations suggest a potential for heightened instability and a prolonged delay in the pursuit of justice, contrary to the intended objectives.
The prevailing equilibrium of practicality compels us to view these Bills as prematurely introduced, necessitating extensive re-evaluation. The present form of the Bills does not convincingly demonstrate an aptitude for mitigating the system’s adjustment challenges while effectively implementing the anticipated changes.
The prevailing equilibrium of practicality compels us to view these Bills as prematurely introduced, necessitating extensive re-evaluation.
In this context, the need for meticulous recalibration becomes evident, ensuring that the legal framework remains steadfast in its pursuit of justice and fair adjudication, free from unwarranted impediments and hindrances.
The anticipated disruptions in law that could stem from the new Bills must be met with substantial and consequential reforms, rather than a mere assimilation of well-established legal principles and practices.
Many of the proposed modifications within the Bills could have been adequately addressed through amendments or have indeed been definitively resolved through judicial interpretations.
Given that these changes could have been implemented without the sweeping overhaul they aim to introduce, the extensive restructuring pursued by the new Bills appears unnecessary.
