On August 11, 3 new Bills; Bhartiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bhartiya Sakshya Bill were introduced in the Lok Sabha seeking to replace the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act.
While introducing them, Union home minister Amit Shah said “from 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. With these three laws there will be a major change in the criminal justice system in this country”, finally freeing us from colonial legacies.
While the Bills have been referred to the standing committee on home affairs for further examination, they are being touted by the government and its ideologues as effecting ‘decolonisation’ of the legal and criminal justice system in India.
Legal experts are still studying the new Bills and grappling with the introduced changes, but most analyses so far suggest that not much has been changed in substance. Apart from naming the bills in Hindi and calling it ‘imbibing the laws with Indian soul’, most changes consist of shifting around sections of the existing laws and some semantic changes in construction of sentences. A Turnitin (plagiarism-detector software) report suggests 83% overlap between the IPC and BNS.
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One of the major planks of this claimed decolonisation is removal of section 124(a), popularly known as the offence of sedition. However, on closer scrutiny this claim falls flat as a similar offence is introduced through section 150 in the BNS.
In fact, this section is even more vague and much wider in scope than the IPC section on Sedition as it includes even intention in its ambit without adequate explanations. The vaguer the definition, the more power the state has to clampdown on the perceived threats to itself and brand any dissent as anti-national.
While the deletion of the terms such as lunatic and of unsound mind and making investigative and trial process time bound in the BNSS is being celebrated for shedding colonial legacies, the BNSS has brought in changes expanding the powers of police and the executive tremendously.
The changes include broadening the scope of investigative powers under search and seizure, ability to get samples from a larger set of people, curbing the power of commutation, bringing handcuffs back, making it more difficult to prosecute government officials, and increased scope of the remand procedure.
Apart from their individual effects of further curbing civil liberties, I want to focus on the cumulative impact and political import such expansion of the power and impunity of the state. And that is the crux of the matter here – the power relationship between the state and the citizens, the government and the governed.
While decolonisation is a much-contested term, especially in the discipline of History where I come from, it’s fundamentally understood as the alteration of the power relationship between the state and the governed in favour of the latter, their transition from subjects to citizens.
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The colonial state and its forms of government, apart from extractive relationships, were characterised by rule by force and subjection of populations. The interests of the state trumped the interests and rights of the governed, with substantial impunity and non-accountability of the state to the subject populations.
This was also reflected in the nature of laws, especially the criminal justice system which was characterised by wide powers of policing and arrest with an emphasis on punishment and disciplining of the ‘errant’ subjects rather than justice. Hence, any effective decolonisation would entail a shift in this relationship in terms of devolving substantial power to the citizens and their participation in modes of governance and making of laws which govern their lives.
While the proposed changes further entrench the power relationship between the state and citizens in favour of the former, even the process of their formulation and introduction in the parliament lack public participation and transparency.
The terms of reference of the Committee for Reforms in Criminal Law, which was tasked with drafting of these Bills May 2020, were never made public. Further, it lacked diversity and representative voices of people across disciplines and capacities, and the committee was given just six months to overhaul three major criminal laws.
This lack continued in the process of introduction of these Bills. They were introduced on the last day of the session leaving no chance for any debate or discussion about the monumental changes they are supposed to bring to the criminal justice system in this country thus affecting the lives of 1.3 billion people.
It is not just these bills, but this government’s recurring pattern of formulating Bills and laws without wider public consultations and debates, ignoring g critical opinions, and passing laws in haste without adequate discussions even in the Parliament.
There has also been a constant dilution of measures of participation, transparency, and accountability of the state, rendering citizens more vulnerable in front of the state. A prime example of this is the recently passed Data Protection Bill 2023 which dilutes the Right to Information Act, 2005 substantially and entrenches executive control over data.
Laws are always embedded in wider networks of meaning and context in society. It derives its power not just from the written texts but d web of power relations in the society. The criminal justice system represents the most direct relationship of power between people and the state as an individual is pitted against the whole might of the state as an accused. So even with some ‘progressive changes in the new Bills, they are very far from effecting any real decolonisation as long as the text of governing remains entrenched in the authoritarian colonial power relations of putting state over people. Changing the names to Hindi will not free us from colonial legacies.
Natasha Narwal, a feminist activist based in Delhi and Haryana, is currently associated with Pinjratod campaign.
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