The Three Proposed Criminal Law Bills: Utilizing Criminal Legislation to Institute Permanent Non-Constitutional Emergency Authority.
On August 11, 2023, the Indian Union Government introduced three bills in the Lok Sabha with the intention of replacing key legal statutes, namely the Indian Penal Code, 1860 (referred to as the "BNS-IPC" bill), the Indian Evidence Act, 1872 (referred to as the "BSA-IEA" bill), and the Criminal Procedure Code, 1973 (referred to as the "BNSS-CrPC" bill). These bills, when analyzed quantitatively, only alter about 20% to 25% of the existing laws within these three statutes.
The changes introduced by these bills primarily involve a reordering and renumbering of provisions to create the appearance of streamlining the laws. They also incorporate amendments to facilitate electronic proceedings, minor changes in nomenclature, and an attempt to set timelines on court proceedings. Notable changes include the decriminalization of attempted suicide, homosexuality, and adultery, along with measures aimed at gender equality, clearer criminalization of certain offenses, and mandatory videography during certain stages of investigations.
However, the article emphasizes that there are twelve alarming changes within these bills that have the potential to erode liberty, undermine democracy, and shift India towards authoritarianism. Six of these changes can be used to suppress dissent, target political opponents, and curtail public discourse, thereby endangering democratic principles. Additionally, five other changes are seen as expanding police powers and authority.
The overarching concern is that these amendments, if enacted, would grant the government significant power to use criminal law as a tool to stifle dissent and opposition, effectively silencing voices that provide differing perspectives or news to the public. The author contends that these bills, if passed, would establish permanent extra-constitutional emergency powers, and future governments may be unwilling to relinquish this authority. These laws are criticized for being contrary to constitutional morality and lacking in-built constraints. The article concludes with a somber warning about the potential consequences of these changes, suggesting that India may be heading toward a period of increased authoritarianism.
The article discusses twelve significant changes introduced in the proposed bills by the Indian Union Government, and this summary will cover the first two changes that are particularly concerning.
I. Arbitrary Power to Label Non-Violent Democratic Action as 'Terrorism': The first change grants the government arbitrary power to label virtually any non-violent action related to democracy, social, political, or economic justice, dissent, protest, or opposition as "terrorism." This allows the government to utilize anti-terrorism laws against such activities, even if they are peaceful and non-violent. The existing definition of terrorism in the Unlawful Activities (Prevention) Act, 1967 (UAPA) primarily includes violent acts aimed at threatening the nation's integrity and security. The new legislation, known as BNS-IPC, expands this definition in several alarming ways. Firstly, it broadens the scope of terrorism to include non-violent acts that meet certain criteria, making even peaceful expressions through speech or writing susceptible to being labeled as terrorism. Secondly, it includes acts that "intimidate the general public or a segment thereof," and introduces the concept of "disturbance of public order" within the definition of terrorism. Furthermore, it encompasses acts that "destabilize or destroy the political, economic, or social structures of the country." These changes significantly expand the scope of the terrorism definition, raising concerns about the potential misuse of anti-terror laws against peaceful movements for social, political, and economic change. This could have serious implications for social reform efforts that challenge the current caste-based social order.
II. Sedition Is Reborn as Sedition Plus: The second change involves the creation of a new mega-crime in the BNS-IPC, termed "Acts endangering sovereignty unity and integrity of India." This clause criminalizes five activities: "subversive activities," "secession," "separatist activities," "endangering sovereignty, unity, and integrity of India," and "armed rebellion." However, none of these activities are statutorily defined, providing broad discretion to the police and political executive. The clause also criminalizes vague and undefinable methods for undertaking these activities, such as "exciting" people in support of prohibited actions or creating excitement among people towards these activities. It additionally covers the encouragement of feelings in favor of such activities. The prohibited instruments for these crimes include "electronic communication" and "financial means," along with traditional means like spoken or written words, signs, and visible representations. The language used in defining these prohibited activities, methods, and instruments is so broad and vague that it can potentially be used to target anyone the government wishes to silence or neutralize. In essence, this change resurrects and expands the concept of sedition, allowing for the suppression of honest, democratic, and non-violent expressions of dissent and opposition. Although Section 124A (sedition) is not included in BNS-IPC, Clause 150 criminalizes a wider range of activities associated with negative attitudes towards the government, effectively creating a more powerful version of sedition.
Both of these changes raise significant concerns about the misuse of legal provisions to stifle dissent, opposition, and non-violent democratic activities. They represent a potential threat to liberty, democracy, and freedom of expression in India and may have serious consequences for those advocating for social and political change.
III. Enabling Targeting of Dissidents and Political Opponents: The third change introduces a new legal mechanism for targeted, biased, political persecution through the criminalization of organized crime (Clause 109) and petty organized crime (Clause 110). While existing laws like the Maharashtra Control of Organized Crime Act, 1999 (MCOCA) and Karnataka Control of Organized Crimes Act, 2000 (KCOCA) define organized crime as "continuing unlawful activity" aimed at gaining pecuniary benefits or economic advantages, the new definition introduced in BNS-IPC is vague and unclear. This ambiguity leaves room for potential misuse and abuse of this provision, particularly in targeting political and ideological opponents. The introduction of this new definition without clear boundaries raises questions about its intent and could be misused to neutralize opposition.
IV. Attacking Fasting as Political Protest: The fourth change involves the criminalization of the use of fasting as a political protest. While the bills decriminalize attempted suicide as a general matter, Clause 224 in BNS-IPC introduces a provision that criminalizes attempts to commit suicide with the intent to compel or restrain any public servant from discharging their official duty. This provision appears to aim at prohibiting the use of fasting as a political tool, potentially affecting the ability of individuals to protest non-violently and fight for their rights.
V. Encouraging Force Against Assembly of Persons: The fifth change signals a statutory encouragement for the use of force against assemblies of people. It revises Section 130 of the Code of Criminal Procedure (Cr.P.C.), allowing a broader range of officials, including those of lower rank, to cause the dispersal of such assemblies by the armed forces. This change raises concerns about the potential use of force against peaceful gatherings.
VI. Shielding the Sangh Parivar: The sixth change is perceived as a partisan modification of criminal statutes favoring the Sangh Parivar, providing legal protection and greater operational space for the organization. The bills are seen as enabling the Sangh Parivar to pursue its agenda, potentially involving the destabilization of the current constitutional structure, without being labeled as a terrorist act. The bills also encompass acts that may seek to disrupt the traditional, feudal, caste-based social structure, incorporating such acts within the definition of terrorist acts.
VII. Exponentially Enhancing Police Powers: The seventh change grants police significant power by introducing a new clause in BNSS-CrPC (Clause 172), requiring all individuals to conform to the lawful directions of a police officer. This clause also allows a police officer to detain or remove individuals who do not comply with these directions, and potentially dispense with the usual constitutional and statutory requirements for arrest. This provision raises concerns about the potential for police overreach.
VIII. Bringing Back Handcuffs: The eighth change undermines restrictions on the use of handcuffs that have been in place for decades. The clause permits the use of handcuffs for specific categories of offenses, potentially leading to the routine shackling of individuals and disregarding the principles of human dignity.
IX. Maximizing Police Custody: The ninth change pertains to police custody during investigations and overrules judicial precedent. Clause 187(2) of BNSS-CrPC allows for an extended period of police custody during the investigation, potentially impacting the rights of the accused by extending the threat of police custody throughout the investigative period.
These changes collectively raise concerns about potential misuse, infringement on democratic rights, and the abuse of legal provisions to target political opponents, dissent, and public protests. The bills, if enacted in their current form, have the potential to significantly impact individual freedoms and the democratic fabric of the country.
X. Forcing Provision of Biometrics: The tenth change addresses the compulsion created to collect specimen signatures, finger impressions, handwriting, or voice samples from all individuals, even if they are not accused persons, in connection with an investigation. Clause 349 of BNSS-CrPC allows a magistrate to direct any person to provide these samples. This change also integrates provisions from the recent Criminal Procedure (Identification) Act, 2022, which empowers police or prison officers to take "measurements" from convicts and persons arrested. The article expresses concerns about the potential infringement of individuals' rights to privacy.
XI. Enhancing Discretionary Power of Police: The eleventh change deals with reversing the direction of the Supreme Court of India in Lalita Kumari vs. Government of Uttar Pradesh (2014), which required the recording of every information received by a police station as a first information report (FIR). Clause 173(3) of BNSS-CrPC makes the recording of an FIR discretionary for the police, allowing for a preliminary inquiry to ascertain the existence of a prima facie case. The article points out that this change could have repercussions, particularly for powerless individuals seeking justice against powerful offenders.
XII. Intensifying the Pain of Imprisonment: The twelfth change pertains to the length of imprisonment, with an increase in sentences across a range of offenses. The bills add new capital offenses and life sentences, with life imprisonment being mandatorily for the remainder of the convict's natural life. House arrest of under-trials is ruled out, forcing all of them to be in jail, which the article suggests may serve as part of the punishment. The bills are criticized for their overall approach to increasing incarceration.
The article concludes by reflecting on the absence of a report explaining the goals and rationale of the proposed amendments and raises questions about the necessity of repealing existing laws and enacting three new ones. It also emphasizes the shift in terminology from "courts of justice" to simply "courts" and suggests a move from a constitutional foundation to a theocratic one, where the criminal law system appears to be shifting towards Hindu law. The lack of liberal strands in these changes and the missed opportunity to balance the criminal law in favor of individual rights are highlighted. The article also mentions that the Supreme Court will face a significant test when the constitutionality of the bills is challenged, and it calls on the court to protect the fundamental rights of the common people of India against state interests.
