• Adv. Rajiv Sharma

On 01 July 2024, the three penal laws namely Indian Penal Code 1860, Code of Criminal Procedure 1973 and Indian Evidence Act 1872, which had remained the pillars of Criminal Justice System of India for a long time, were replaced by three new laws – Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA). From the events that preceded the enforcement of the new laws, it appears that the important penal laws were ineptly drafted in haste by a committee prejudiced by a pre-planned agenda and passed without any discussion among the law-makers. In fact, the laws governing the entire criminal jurisprudence in the country were brought for discussion in the Parliament only when the opposition parties were absent due to undemocratic and untenable suspension of their MPs by speaker Om Birla. Nonetheless, the enforcement of the three laws means that Modi Government has taken a giant step in fulfilling its sinister goal to convert the country into a Police state in order to crush political and ideological dissent.

The three penal laws were not drafted by the country’s top legal experts but by a part time drafting Committee appointed by Modi Government. The Law Commission, which has retired judges, eminent legal experts, members of Bar Council and top Advocates of the country as its members and which is the most important institution in the Country in the field of legal research was totally undermined and its painstaking research was ignored.

Further, a reading of the new penal laws shows that the intention of Modi Government was not to reform the criminal justice system. On the contrary, the premise of reformation was cleverly used to bring a few draconian provisions in the new penal laws to fulfill the BJP’s agenda to undermine democratic rights of the people. Apart from just a few such harsh additions, 90 to 99% of the laws have been simply copied from the old, repealed laws and pasted in the new ones. After doing the shabby copy paste job, the drafting committee appeared to be under pressure to camouflage the coercive provisions added in the new penal laws. They deliberately tried to turn them into a complex and a perplexing maze of laws by changing the numberings of more than a thousand sections contained therein. If the government wanted to change some provisions, it could easily amend the relevant sections of the existing Penal Acts without causing unnecessary confusion and chaos. New sections could be added to the existing statute and a few unwanted ones could be deleted through amendments. The unnecessary confusion and chaos thus caused has not only been creating avoidable difficulties for both the Bench and the Bar, buts slowed down the justice delivery process in the country. Further, provincial Police and investigative agencies will take a long time to adapt to the new provisions, the claims of intensive training notwithstanding.

As stated above, the aim of the government does not seem to reform the Criminal Justice System but to provide unbridled powers to the law enforcing agencies. That the country has embarked on a path to become a police state is evident from reading just one provision of Bharatiya Nyaya Sanhita, as stated below:-

Section 152 of BNS:- “whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication, or by use of financial mean, or otherwise, excites or attempts to excite, succession or armed rebellion or subversive activities, or encourages feeling of separatist activities or endangers sovereignty or unity and integrity of India, or indulges in or commits any such act shall be punishable with imprisonment for life or with imprisonment which may extend up to seven years, and shall also be liable to fine”. Although an explanation to this section is given, but that may not stop an overzealous police personnel to misread and misinterpret the provisions of the said section and implicate innocent people, who oppose the BJP communal and divisive policies.

The above said section of the BNS replaces section 124-A of the Indian Penal Code, which has been deleted in the new law. The Sedition law was enacted by the British Government, which was defanged to a large extent by a judgment of the Honourable Supreme Court in Kedarnath case in 1962, wherein it was explicitly held that “actual violence or incitement to violence and intent or tendency to cause disorder’ were necessary ingredients to construe the offence of sedition. Therefore, the Law enforcement agency had to pass the test of “clear and present danger and bad intentions” on the part of the offender that led to actual violence or amounted to incitement of violence to book a person under this provision. Mere spoken words would not suffice. It must be mentioned here that despite clear cut guidelines of the Apex Court, Modi government put many innocent persons behind bar for political dissent under section 124-A of IPC. To quote an example, a journalist Vinod Dua was booked under Sedition laws in 2021 just for criticizing the government’s handling of Covid 19. Some persons were booked by the Police for criticizing the three farm laws. When the misuse of section 124-A of IPC did not stop, the Apex Court finally came up with a harsh verdict in 2022 in S.G Vombatkere vs Union of India case. The court issued directions that till the sedition law was amended and the Union of India took a clear stand on it, no FIR under section 124-A of IPC would be registered henceforth and all pending trials, appeals and proceedings under this section would be stayed and the Union Government would issue directives to all the States to prevent any misuse of section 124-A of IPC.

When the Supreme Court practically emasculated the sedition law under IPC, the present government had no option but to repeal it. But, to negate the above-mentioned order of the Apex Court, Modi government promulgated a much harsher and more draconian law in the ‘Bharatiya Nyaya Sanhita’ in the shape of section 152, which is prone to misuse by the security agencies. In view of this, the life and liberty of lakhs of people, who have the spine to criticize the wrong policies of the government, will remain under perpetual threat at the hands of security agencies. Such a situation is a grave threat to our Democracy and fundamental rights guaranteed by the Constitution.

Many legal experts are of the opinion that the confusion caused due to overhauling the numbering of the provisions in the largely copied and pasted new penal laws and inclusion of a few draconian provisions therein are likely to derail the entire criminal justice system, which will render the administration of justice much more complex and time consuming. Besides this, there are many more glaring lacunae in the new laws, which need to be addressed. To quote a few, the police investigation time has been increased to 90 days from 15 days as provided in the repealed IPC. This amounts to giving near absolute powers in the hands of the Police. Further, a new punishment in the shape of Community Service has been introduced without defining what constitutes a community service. It is therefore, in the interest of the country that the government sits with the leaders of the opposition to deliberate upon the demerits of the new penal laws and restore the status-quo-anti, henceforth. The government of the day must understand that continuing with the hastily drafted penal laws may cause an unbearable harm to the democratic rights of the people and put insurmountable pressure on the country’s justice delivery system.

The author is a Spokesperson, Chandigarh Pradesh Congress Committee