The Three New Bills Are a Lesson on How Not to Draft Criminal Laws

They fail to achieve their own stated objectives — decolonising India’s justice system to make it citizen-centric.

These laws fall considerably short of modern progressive standards of making criminal law.

(Photo: Aroop Mishra/The Quint)

On 25 December, three Bills replacing the colonial era Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872 (IEA), and the Code of Criminal Procedure, 1973 (CrPC) received Presidential assent. After the Central government notifies the new laws, the Bharatiya Nyaya Sanhita Act, 2023 (BNS) will replace the IPC, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) will replace the CrPC, and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) will replace the IEA.

These laws, purporting to transform India’s criminal justice system (CJS), were passed amidst the suspension of numerous Opposition leaders from Parliament.

A nuanced debate on these Bills and their implications on the CJS was also overshadowed by the populist pitch for decolonisation and Indianisation of the CJS. However, the issues with these new laws extend beyond their problematic enactment.

These laws fall considerably short of modern progressive standards of making criminal law, which acknowledge the need to limit the scope of criminal law, decriminalise the legislative landscape, draft simpler and unambiguous criminal provisions, and conceptualise punishments that fit the crime. Consequently, these laws fail to achieve their own stated objectives – decolonising India’s CJS and making it citizen-centric.

The Big Misses in the 3 New Laws

While tabling the Bills in the Lok Sabha in August, Home Minister Amit Shah had stated that the Bills seek to decolonise India’s CJS and remove vestiges of the British Raj. He also emphasised that the focus of the CJS would shift from' punishment' to ‘justice’. This, however, only turned out to be rhetoric.

No strategy or roadmap was provided to achieve these ambitious goals. In fact, these laws do very little to identify and eliminate the fundamentally colonial elements from the CJS.

The laws operate on the same colonial premise that saw criminal law as a tool to control people and to instill terror into their minds. Moreover, retaining vague and ambiguous provisions that criminalise speech and expression and have a considerable potential for misuse contributes little to decolonising the CJS.

Replacing the old laws in toto and starting afresh provided an opportunity to strategise a comprehensive, and yet a long-term and continuous process, to transform the way post-Independence India conceptualises crime and responds to it. This would have gone a long way in not only divorcing the CJS from its colonial context, but also creating a pathway for a more responsive and reasonable CJS.

Another big miss in the drafting process of these laws are pre-legislative impact assessments. This was particularly necessary because these laws stress on time-bound adjudication, use of forensics, integration of technology in trial and investigation processes etc. Pre-legislative impact assessments to evaluate the necessity, capacity, and feasibility of these interventions were critical and yet ignored.

Globally, such assessments have become integral to law-making practices, analysing the fiscal, capacity, and human rights impacts of new laws. This approach helps in assessing the necessity of criminalising certain acts, the feasibility of enforcement, and also encourages exploration of alternatives to achieve policy objectives.

A Missed Opportunity to Provide Substantive Safeguards

The lack of a clear vision and pathways to decolonise India’s CJS ensures that the laws mostly make cosmetic changes to the system, sometimes even reinforce the colonial vestiges, and leave unaddressed the core problems confronting it. This misalignment of the new laws from the extant problems is particularly visible in the following cases:

Overcriminalisation

The extent of criminal law in India is alarming, particularly in cases where it seeks to enforce social and regulatory norms.

This has led to overcriminalisation of India’s legislative landscape with over 420 union laws providing for thousands of criminal offences, like failure to comply with registration requirements of industries, failure to maintain accounts, failure to give sufficient exercise to household pets, and failure to report a treasure of value over Rs 10.

While revisiting the country’s substantive criminal law, the government would have done well to address this issue and recognised the limitations and utility of criminal laws. This would also have been consistent with attempts worldwide to limit the State’s power to criminalise.

Discriminatory practices in the system

Mirroring global trends, criminal laws and their enforcement in India has a disproportionate impact on marginalised communities. Statistics reveal that Muslims, Scheduled Castes, and Scheduled Tribes are over-policed, and as a consequence, overrepresented in prisons. Over the past five years, SCs and STs have consistently accounted for over 30 percent of India’s undertrials and around 35 percent of convicts in Indian prisons. Similarly, Muslims account for over 30 percent of India’s preventive detainees in prisons, which is more than double their proportion in the population.

The enactment of new substantive and procedural laws provided an opportunity to remove the deep-rooted prejudices working in the CJS that have led to over criminalisation of minorities and other marginalised communities. However, no attempt was made to include procedural and substantive safeguards against these practices.

Preventive detention and Excessive police powers

Preventive detention laws, which were central to furthering colonial interests, have only expanded in reach post-Independence, with at least 25 active preventive detention laws in the country.

Similarly, like the special preventive detention laws, extraordinary powers of arrest under the CrPC derive substantially from a colonial view of policing Indian people. A staggering 8 million preventive arrests every year evidence how this power is misused and adversely impacts the right to personal liberty. Rather than addressing this issue, the new laws further expand police powers.

All of these issues raise significant concerns about the working of the CJS, and the new laws fall short on several fronts to address them. On the contrary, the laws reinforce colonial vestiges of the existing system. More needs to be done to create a truly modern and decolonised CJS.

(Naveed Mehmood Ahmad is a Senior Resident Fellow, Criminal Justice at Vidhi Centre for Legal Policy. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)