The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) are the three new criminal laws that are set to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act (IEA), respectively. On the face of it, the three new laws seem to have a similar structure to the ones they are replacing, but a closer inspection makes it amply evident that they contain a multitude of new provisions, leading to ‘over-criminalisation’, among other issues.

What is even more concerning is that these laws gravely curtail a range of procedural safeguards, potentially resulting in greater abuse of police and State powers. This, in turn, further intensifies and institutionalises the ongoing and unstated tyranny that "the process becomes the punishment".

This, indeed, translates into the legal process being used as a weapon to such an extent that it becomes as much a severe punishment as the final punishment following an actual conviction, thereby effectively rendering the outcome of the trial irrelevant.

The new laws, in one go, grievously undermine the seminal tenets of modern criminal jurisprudence, including the ‘‘presumption of innocence’’, the ‘‘due process of law’’, the ‘‘certainty and uniform application of the law’’, the ‘‘right to remain silent’’, and the ‘‘burden of proof’’ and among other doctrines.

Further, the laws in question include provisions that have definitions that are too vague and subjective, and which have the potential to culminate in arbitrary applications and unchecked abuse of power by the police and government. These provisions provide enough room for them to be twisted and bent to cater to the political needs of those in power, turning them Machiavellian in character and content.

For instance, the Sedition law in its new avatar is bound to be more dangerous as it has far more subjective provisions than its predecessor. With the inclusion of the phrase "act endangering sovereignty, unity and integrity of India," individuals now can be more conveniently and falsely implicated in the name of posing a threat to the ‘‘nation’’, a far more nebulous and abstract notion. In contrast, the Sedition law, under the old regime, was limited to the "government established by law", a tangible, less subjective construct.

Surely, this goes against a substantive principle of criminal law: that laws must be precise, unambiguous, and narrowly defined so that ‘‘legitimate expectations’’ and the ‘‘non-retroactivity’’ of the legal effects can be ensured.

Besides, the general criminal laws have now absorbed the provision of special criminal laws. For instance, the definition of terrorism has been lifted straight from the Unlawful Activities (Prevention) Act of 1967 (UAPA). Consequently, the police now will have wider and fuller discretion to determine whether to charge an individual under the UAPA, or BNS, or, worse, both.

Given the track record of the police administration in contemporary India, it remains a foregone conclusion that the accused individuals of ‘‘terrorism’’ will now mostly be prosecuted under the general new criminal law, BSA, only.

Unlike UAPA, it neither provides for special courts nor enough procedural safeguards, thereby proving to be a more potent instrument for the regime’s ‘‘the process is the punishment’’. Indeed, at the stroke of a pen, a much bigger monster than the UAPA has been created to persecute citizens who peacefully raise questions which the establishment does not like to hear.

Much worse, the provision of police custody has been maximised to the hilt. Now the police will have the custody of an accused for up to 60 or 90 days, contingent upon the type of offence. Indeed, it is quite a radical departure from the previous limit of 15 days, as stated in the Code of Criminal Procedure (CrPC). There is serious fear that such a radical shift may result in a drastic increase in incidents of custodial torture.

This will drastically increase the risk of extorting fake confessions and planting false evidence by the police against accused persons, thereby undermining a crucial procedural safeguard -- that of the right against ‘‘self-incrimination’’, as reflected in Article 20 (3), a part of fundamental rights declared in the Indian Constitution.

Surely, this will, in turn, gravely dilute another much-significant principle of a criminal justice system, that of the ‘‘burden of proof’’. Under this scheme, the prosecution is required to prove its case ‘‘beyond a reasonable doubt’’ to secure a conviction. In other words, the onus is never on the accused to prove her or his innocence. Undoubtedly, allowing police custody for up to 90 days under the general criminal law is fraught with danger chiefly for three reasons.

First, it greatly increases the scale of corruption during an investigation, potentially leading to the use of torture against the accused and manipulation of evidence in favour of the prosecution.

Second, the prosecution's cases may increasingly begin to rely more upon "confessions" obtained through coercion or other such illegal methods. This could lead to a significant jump in the number of wrongful convictions, thereby negating the much-cherished, cardinal principle of the criminal justice system: it is better to let a hundred guilty people go free than to convict one innocent person.

Third, the bail jurisprudence will further be compromised. Indeed, longer police custody will inevitably lead to a reversal of the doctrine of ‘‘bail is the rule, jail is the exception’’ to ‘‘bail the exception, jail the rule’’.

Here it is important to note that in India, it is a common practice for judges to not grant bail to accused persons in most sets of cognisable cases until the police file chargesheets. The newly introduced provision for prolonged police custody will further aggravate this pattern, potentially limiting the scope of judicial reasoning in the matter of bail applications, particularly at the initial stages of cases.

The civil wrong of adultery, a strictly private issue between a husband and wife, has been reintroduced as a criminal offence in a so-called "gender-neutral" form. This was done in utter disregard of the landmark ruling — which struck down the law of adultery — rendered by a five-judge bench of the Supreme Court of India in the case ‘Joseph Shine Versus Union of India, 2018’.

Moreover, the new laws have the potential to effectively nullify the catena of progressive legal rulings rendered over the decades by the constitutional courts, including the Supreme Court of India and various high courts. This leads to a plethora of new legal challenges and uncertainties, each with its unique set of complexities. As a consequence, citizens may face much-prolonged waiting periods for the deliverance of justice, thereby causing them undue suffering.

The so-called ‘‘good provisions’’ being offered by the new laws like the time-frame specified for adjudicating certain categories of offences are likely to be ineffective due to the overwhelming workload on the Indian judicial system. This can be best fathomed by the fact that the cases of UAPA — wherein trials take place in special courts and are supposed to end speedily — go on for years, while the accused keep on languishing in prison without any recourse to an iota of justice.

Instead of directly confronting major burning problems like the inadequacy of judicial infrastructure and judges at the district level, they have introduced provisions that may prove counter-productive. For instance, the rank of Assistant Sessions Judge has been abolished, which will likely lead to increased workload for Sessions Judges.

As a result, the first appeal will now be heard in the already highly overburdened high courts. This change will also come at a significant cost to citizens, who will now have to approach the state-level high courts for their first appeal.

There is merit in the argument that the political philosophy driving the new criminal laws is aimed at criminalising every possible avenue and agency that could possibly challenge the government with difficult questions. The criminal laws have been heavily militarised to forcefully quell any form of dissent that may arise against the repressive actions or instrumentalities of the government.

The laws in question bear an uncanny similarity to the representation of law and justice as depicted in George Orwell's novel ‘‘1984’’, a warning story where all existing elements of unfairness and repression have been supplanted with words that are commonly associated with truth and justice. For example, the ‘‘Ministry of Propaganda’’ is named as the ‘‘Ministry of Truth’’.

In today's India, where truth is often manipulated or ignored, Orwell's iconic fictional work seems to have become a prophecy of sorts. This assumes greater significance in the context of the naming of these laws. The names include words like "Nyaya" (Justice) and "Nagarik Suraksha" (Citizens' Security) which seem nothing but pure mockery. They seem to be a short-hand of sorts for the words "Anyaya" (Injustice) and "Nagarik Asuraksha" (Citizens' Insecurity). In this context, therefore, it is not unreasonable to argue that this is also a war against the very idea of people’s language and imagination.

Certainly, these laws can be and should be challenged in the Supreme Court of India. And, surely, they will be. However, the important question is: what is the approach the Supreme Court will take in deciding the constitutionality of these laws? Will it follow the approach taken in the Electoral Bond Scheme judgement, or will it go for the more frequent approach of not declaring the constitutionally problematic laws as unconstitutional?

NAREN SINGH RAO is a lawyer and academic. He is a visiting faculty at a Delhi University college. Views expressed are the writer’s own.

Latest News