New Delhi: Senior advocate Indira Jaising wrote to newly-sworn-in Law Minister Arjun Singh Meghwal Tuesday, requesting him to defer the implementation of the three new criminal laws that seek to replace the existing colonial-era penal legislations.
Jaising urged the minister to open the floor for public discussion so that the concerns of relevant stakeholders can be considered before the new laws — Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) — are made operational.
In an exclusive conversation with ThePrint last week, senior advocate and Supreme Court Bar Association (SCBA) president Kapil Sibal had echoed a similar view about the “draconian laws”, offering to write to the Modi government, provided the body of apex court lawyers that he now represents asked him to do so.
Sibal had said that the laws, which are to come into effect from 1 July, were prepared without following a democratic process and hearing crucial stakeholders, such as lawyers working in the field of human rights or the “liberal ones”.
Sibal is one of many jurists who have warned against the sweeping changes to the colonial-era penal laws, or spoken against the opacity of the consultation process that preceded the announcement of the changes. The three bills, they complain, were passed without any pre-legislative consultation, including a public hearing.
Acknowledging that reform is a pivotal aspect of the criminal justice system, experts have raised concerns over wide powers given to law enforcement agencies, and addition of offences like terrorism, without proper safeguards against the possible misuse of authority by the police.
Greater executive control could lead to indiscriminate surveillance, civil rights activists have cautioned.
The passage of the laws was also marked by controversy. In December last year, during the winter session of the Parliament, Union Home Minister Amit Shah had tabled the laws, hailing them as people-centric.
Addressing the Lok Sabha, Shah had said that the British-era laws were aimed at protecting foreign rule, but the new ones would focus on justice rather than punishment. The proposed laws, he had said, aligned with the spirit of the Constitution, were introduced keeping in mind the well-being of the people, and promised to eliminate the colonial mindset.
However, the fact that the laws were passed in the absence of more than 140 Members of Parliament made them rather unwelcoming. The MPs not present belonged to the Opposition bench, and were suspended following protests over a security breach in the Parliament. The laws were passed with a voice vote in the Lower House, and then unanimously in the Rajya Sabha.
With a fortnight left for the new laws to be operationalised, ThePrint takes a look at some of the key changes introduced in the penal legislations that have sparked worry amongst jurists and activists.
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Police and judicial custody
Following an arrest, a person is either remanded to police custody or judicial custody until the investigation is complete. An accused remains in police custody, if any recovery has to be made at their behest. During this period, they are made to stay in a police station or lockup.
Judicial custody is detention by a judicial magistrate, during which the accused is kept in a central or state prison.
Depending upon the nature of the offence under probe, the police have either 60 or 90 days to complete its investigation. According to the current legal framework, in the first 15 days of detention, the custody can be changed from police to judicial, and vice-versa. It can also be intermittent.
The new laws, however, allow detention in police custody for 15 days — in whole or parts — at any time in the first 40 or 60 days out of the 60 or 90 days, the timeline fixed to complete investigation. This means that the window period to seek police custody is no longer limited to the first 15 days of the arrest, and it can be taken in later stages of the probe, making the accused more vulnerable to police excesses.
In such an arrangement, the chances of an accused getting bail will be bleak, as courts are more receptive to releasing a person during judicial custody. Now, with the possibility of the accused being sent to police custody at any point during the investigation, courts would be reluctant in granting bail until the probe concludes.
Sedition resurfaces
In May 2022, the Supreme Court had temporarily suspended the sedition law mentioned in the Indian Penal Code (IPC). The stay on its operation came in the backdrop of allegations over its misuse, and petitions challenging sedition in the existing form were referred to a Constitution bench of the top court.
However, the replaced criminal law, BNS, restores sedition in an alternate form. Though the term no longer exists, the concept has been retained with a more broad and vague definition.
Experts fear this vagueness in the law would give scope to the police machinery to abuse it further, vitiating free speech rights and leaving no room for dissent.
Acts endangering the sovereignty, unity and integrity of India would get covered in the new provision. Unlike the outdated sedition law, where the penalty could be limited to fine, the new legislation — section 150 of BNS — mandates imprisonment under all circumstances. The jail term can be anywhere between three and seven years.
Another cause for worry is the recognition of “electronic communication” as a means to commit the alleged act of “endangering sovereignty and unity of India”.
BNS absorbs terrorism and organised crime
What has left jurists astounded is the absorption of special offences that are currently governed by special legislations, such as the Unlawful Activities Prevention Act, 1967 (dealing with terrorism) and the Maharashtra Control of Organised Crime Act, 1999, in BNS as ordinary crimes.
However, section 113 lacks the procedural safeguards that exist in UAPA and MCOCA to prevent fabrication of cases. For instance, UAPA requires government sanction and independent examination of evidence to prosecute an accused.
Besides, the definition of a terrorist act is vague. “Any act” likely to threaten “unity, integrity, sovereignty, security, or economic security of India,” or could “strike terror in the people” will be treated as a crime, section 113 of BNS says.
In contrast, in UAPA, an act has to be a “violent act” to be considered a terrorist act. The new penal code could potentially be used to target peaceful non-violent acts, if they meet the criteria mentioned in the law.
The new definition also includes any act that threatens the “economic security of India” as terrorism.
The new law also gives the police unbridled power to decide whether to proceed under the UAPA or section 113 of the BNS. Such enormous discretionary authority to a superintendent of police level officer could embolden the law-enforcement agencies to invoke the new statute in order to bypass the little safeguards contained in the special law.
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Community service
Community service as punishment has been introduced for the first time in the penal code. There have been many judgments, where courts have imposed community service as punishment, even though it has not been prescribed in the IPC. Such punishments have ranged from planting trees to carrying out traffic duties, or working with an NGO.
With this change, India joins the list of nations that provide community service as a form of punishment. It is often used to rehabilitate first-time offenders in petty offences, and adopted as a measure to address overcrowding of prisons.
Digital evidence & concerns over privacy
Reworked with the clear objective of digitising most aspects of criminal procedure — from registering an FIR to drawing the chargesheet, and writing judgments — the laws give formal legal sanctity to include digital evidence in the criminal justice system.
Until now, courts did conjoint readings of two laws — Evidence Act and Information Technology Act — to ascertain if the digital evidence presented by the police in a trial was valid or not.
But with BNSS specifically containing provisions on digital evidence, the practice gets redundant.
Under the new law, summons can be issued electronically, and testimonies from witnesses, experts, accused, and other parties, may also be presented electronically/virtually.
Definition of ‘documents’ has been expanded in BSA to include electronic or digital records, including online communications on various personal devices that could cover instruments, such as mobile phones, laptops, cameras and other electronic gadgets.
Clause 185 of BSA allows police to search for any material or document without a written order, if they have “reasonable grounds” to believe that such material or document cannot be otherwise obtained without undue delay. This would now extend to electronic devices and online communication.
In the absence of any procedure to ensure security or maintenance of a proper chain of custody for such digital evidence and adequate safeguards, experts have questioned the free hand given to the enforcement agencies to acquire such information.
Concerns have been raised over tampering, leaks as well as breach, particularly because digital evidence would now be treated as primary and not secondary evidence. This would legitimise and encourage infringement of privacy by the executive, experts have warned.
Further, clause 94 of the BNSS allows the court to summon any document or material necessary for an investigation as “evidence”, including digital evidence from a person, who is in possession of it, but is “not expected to produce the same”, or is not directly involved in the trial.
(Edited by Mannat Chugh)