EDITORIAL ANALYSIS : Criminal law Bills and a hollow decolonisation

Source: The Hindu

• Prelims:, IPC, CrPC, Bharatiya Nyaya Sanhita, Bhartiya Nagrik Suraksha Sanhita, Bharatiya Sakshya Bill, Indian Evidence Act, Directive Principles of State Policy etc
• Mains GS Paper II & IV: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc

ARTICLE HIGHLIGHTS

• The central government introduced three Bills in Parliament Called
  • Bharatiya Nyaya Sanhita (BNS), 2023
  • Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
  • Bharatiya Sakshya (BS) Bill, 2023.
• They are to replace the existing
  • Indian Penal Code, 1860
  • Code of Criminal Procedure (CrPC), 1973
  • Indian Evidence Act, 1872.
• The Committee for Reforms in Criminal Law in 2020 said that these Bills will bring about decolonisation of criminal laws.

INSIGHTS ON THE ISSUE

Context

Major provisions of the three new bills:

Colonization:

• It is a process of oppression where the colonized become vehicles for the supreme colonial power to fulfill its desires.
• The subject unquestioningly serves the colonial state and remains at its mercy.
• Those in power have rights; those without must oblige.
• The colonial state also considers itself to forever be at risk of being victimized by those it rules.
• It needs to protect its own, not the subjects’, who are not just inferior but also suspicious.
• The foundational essence of colonial laws: To secure and protect the colonial state and not the colonized.

Issue with the bills:

• The Bills fail essential requirements both in how they have been brought about and their content.
• The framework produced by them views citizens with such increased suspicion and mistrust that the state appears to almost be in opposition to the citizen.
• Bills severely compromise people and simultaneously arm the state against citizens.
• All proposed changes to the BNS (organized crime, false information jeopardizing sovereignty, acts endangering sovereignty, terrorist acts) are overbroad.
• Many of the ‘new’ offenses are already covered by existing laws (either under special laws or the Indian Penal Code).
  • Adding an additional layer of criminalisation, therefore, does nothing except increase police powers.
• The Bharatiya Nagarik Suraksha Sanhita (BNSS): It allows police custody for periods longer than is allowed under the current Criminal Procedure Code.
• Some provisions of the BNS, such as terrorist acts, allow the police powers that are significantly broader than even those under harsh laws, such as the Unlawful Activities (Prevention) Act.

Significance:

• The new laws aim to expedite justice delivery while protecting citizens’ rights and addressing modern challenges.
• They emphasize accountability, digitization, and justice rather than mere punishment.
• In May 2020, an Expert Committee led by Ranbir Singh was established to propose reforms in the realm of criminal law.

Way Forward

• A standing order that could have been included in the Sanhita with respect to inquest is the videography and photography of a post-mortem
  • particularly in cases where it is a custodial death or is a death caused in an exchange of fire with the police or other authorities.
  • The Supreme Court and the National Human Rights Commission have repeatedly asked States to comply with such instructions.
  • The observation of the Court to make a spot sketch of the scene of crime drawn on scale by a draftsman in order to make it admissible in court
    • It could also be included in the Sanhita to improve the quality of investigation.
  • Increasing terms of punishments across the board, as the BNS does, while broadening police powers borrows heavily from the logic of colonial criminal law.
  • India’s severely overcrowded prisons and the implications on policing are either non-considerations or over-looked considerations.
  • The narrative of decolonisation surrounding the Bills must not be seen in isolation from developments in other areas of criminal law that are contemporaneously pushing us back into colonial ways and outcomes of lawmaking.
    • For example: laws such as the Criminal Procedure (Identification) Act, 2022 which authorizes the police to take measurements of convicts, accused and even those taken into custody for preventive detention
      • It further the aim of colonization — increased surveillance of the populace and increased control by the state.
    • Some of the proposed changes are definitely progressive in nature, but cannot be termed as path-breaking or radical.
    • Police stations are generally under-staffed, have poor mobility, insufficient training infrastructure and poor housing facilities.
      • Police personnel work under stressful conditions.
      • The colonial mindset will go only if police reformation is taken up in its entirety and not just by tweaking some provisions of the applicable laws.

QUESTION FOR PRACTICE

Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)