Why new criminal bills are worse than colonial ones
By Mihir Desai, Vijay Hiremath
Originally published in Times of India
Instead of overthrowing the yoke of colonialism, the new Bills give increasing draconian powers to the police, while making some cosmetic changes to the existing laws
The three new Bills meant to replace the Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and the Indian Evidence Act have been widely commented upon from different angles. This article is confined to the impact the changes are likely to have on the civil liberties of the accused persons.
As much as 85-90% of the substantial provisions of the old laws have not been changed. Additionally, some of the changes are nothing but long-standing judicial pronouncements and precedents being incorporated into the Bills. The existing laws have also been amended from time to time to incorporate judicial pronouncements such as the Supreme Court judgments in the cases of DK Basu (https://indiankanoon.org/doc/501198/) and Arnesh Kumar (https://indiankanoon.org/doc/2982624/), which spoke about the rights of arrestees.
It needs no reminding that the CrPC as applicable today was enacted in 1973 and is in any case a post-colonial law. Of course, even the 1973 code borrowed hugely from the colonial law but there were also significant changes. For instance, the provision for anticipatory bail was introduced for the first time under the 1973 code.
The IPC, 1860, has also been amended many times, widening and making stringent the provisions concerning violence against women. The Evidence Act has seen the introduction of the newer concepts of electronic evidence. Similarly, the past few decades have witnessed amendments to the CrPC increasing the rights of victims.
In short, the three laws have never been frozen in time and the changes that are sought to be done, including the tongue- twisting titles, could have easily been introduced via amendments.
In the above background, let us look at the impact of the major changes on civil liberties. In this article, we are not dealing with the Indian Evidence Act. Let us start with the IPC, which will now be called the Bharatiya Nyaya Sanhita.
The new additions
Three new major offences have been added to the IPC. These are terrorism, organised crime and petty organised crime, and mob lynching. The sections dealing with terrorist acts and organised crime are so widely defined that any dissenter can be brought within its sweep, and the definition of terrorist act is even wider than under the Unlawful Activities (Prevention) Act (UAPA) as it includes even disturbance to public.
Also unlike under UAPA, disruption of supplies or services is treated as a terrorist act even if it is not linked to the use of any hazardous substances such as arms or chemicals. Thus an ordinary strike can be treated as a terrorist act.
A terrorist organisation is not confined to those listed in the schedule to the UAPA and thus an ordinary trade union or civil society organisation can be branded as such.
For organised crime, the punishment can extend up to life even if there is no violence. This is so broadly defined that any collective activity that the state does not approve of can be included. Essentially, the powers given to the police are so vast that any person can, with some liberties with truth, be charged with this and end up spending months, if not years, in jail.
Mob lynching has been defined as an offence if five or more people commit a murder, but the punishment ranges from seven years to life imprisonment and death sentence. However, the punishment for ordinary murder is either life imprisonment or death sentence. Thus mob lynching is treated as a softer offence.
In 2018, the SC decriminalised consensual homosexuality by reading down Section 377 of the IPC. The new Bill completely does away with Section 377. Thus non-consensual sexual acts among homosexuals have been legalised.
The provision was also being used by married women to deal with forced anal sex. (The only way married women can bring in sexual charges against their husbands in India. The new Bill does not do away with marital rape). The provision was also being used to book people for bestiality. Scrapping of this section is also an attack on animal rights.
‘Subversive activities’
Recently, the SC had asked the Union government to consider doing away with the provision on sedition in the IPC, and in the meantime stayed all cases of sedition across the country. The sedition law has been widely misused against dissenters. The new Bill, while doing away with some of the egregious parts of the earlier sedition offence, brings in ‘subversive activities’ as an offence without defining what are subversive activities, again giving the police unchecked powers of arrest.
Community service has been introduced as a punishment for some of the offences with no clarity on the issue as to what this would mean. While theoretically this is a good move, its vagueness gives wide discretion to judges who can define it the way they want contingent upon their own ideology and notions of ‘goodness’.
Strangely, Section 102 of the Nyaya Sanhita mandatorily imposes death or life imprisonment for murder committed by a convict under life imprisonment; this seems to be reviving the long-dead Section 303, which mandatorily imposed a death sentence for this offence and was struck down by the SC in 1983.
Let us look at the CrPC, now dubbed as the Bharatiya Nagrik Suraksha Sanstha Bill.
There is a history of judicial precedents frowning upon handcuffing of prisoners. Section 46 of the new Bill permits handcuffing in a broad range of situations.
Sections 107 allows the attachment of property by the police if according to the police, such property has been obtained as a result of criminal activity. Of course, they need a judicial magistrate’s order to do so, but the magistrate has even been given the power to order such attachment ex parte — a provision most likely to be misused.
Hurdles for bail
Contrary to what some commentators have observed, the total period of police remand under this Bill cannot exceed 15 days. However, unlike the present situation where this period has to be exhausted at one go, the Bill allows this period to be spread over the initial detention period of 40-60 days.
This will result in courts showing reluctance in granting bail to anyone for the first 40-60 days as the police can always argue that they may want the custody of the person at a later stage and hence no bail should be granted till this period is over.
Section 187 prescribes that no person shall be detained otherwise than in a police station under police custody or in prison under judicial custody or a place declared as a prison by the central government or state government. This provision implicitly prohibits house arrest.
There is also a provision that does away with the necessity of calling in the witness box an expert or an investigation officer who actually created the document or report if such a person has retired or been transferred or is difficult to bring before the court. This is contrary to all canons of justice as it will allow one person to prepare an expert opinion and altogether another to explain it.
Even the right to mercy petitions for those sentenced to death has been truncated as it has to be made within a period of 30 days and that too only jointly with others sentenced to death in that case.
Electronic mode
The courts are given discretion to conduct all proceedings, including the trial, in electronic mode. This will imply that an undertrial accused will not be brought to court while the lawyer may be in court or conducting the trial from a completely different place.
This can cause three problems. First, the accused may not be able to give adequate and prompt instructions to the lawyer. Second, client confidentiality gets compromised. Third, most of the time, the accused who are undertrials look forward to being brought to the court because that is one way in which they can easily spend some time with their lawyers, relatives and friends. While video conferencing may be the future, especially in the case of undertrials it should be resorted to only if the accused agrees.
The existing laws do require substantial rehauling keeping in mind the rights of the accused as well as the rights of victims. More particularly command responsibility for offences by public servants and corporate homicide for acts of corporations which lead to deaths needed to be added.
Outlawing torture will never become real unless the accused is permitted to consult a lawyer throughout the investigation. Bail provisions should be liberalised considerably. The wide discretion given for sentencing needs to be reined in by prescribing sentencing guidelines. Even under the new law, only a child below the age of seven years can totally escape criminal liability.
If the march of law has to match the march of society, the age of consent for sexual activity has to be reduced to at least 16 years. If the accused has to have a real chance of not being framed, the entire material collected during the investigation should be handed over to him. Criminal defamation should be done away as an offence and if we are to follow what the European Union has done, capital punishment should be done away with.
These are just some of the changes required under the criminal laws if we really want to overthrow the yoke of colonialism. But instead of doing this, the new Bills give increasing draconian powers to the police, while making some cosmetic changes to the existing laws.
Mihir Desai is a human rights lawyer, practising as senior counsel in the Bombay High Court and Supreme Court. Vijay Hiremath is a human rights lawyer practising in the trial courts and Bombay High Court.