The quality and efficacy of such initiatives are always dependent on experiential consultative mechanisms, sadly absent in this case.
First and foremost, it is not at all difficult to have a new and thorough parliamentary debate on the Nyaya Sanhitas, provided the government has the humility or the contrition to reopen and rediscuss all the new criminal codes through an amendment process. Admittedly, they were pushed through Parliament unceremoniously and were entirely unenriched by the Opposition’s inputs. But I know that this is worse than starry-eyed dreaming because of the two missing conditions — humility and contrition.
Second, cosmeticism, superficiality and vanity appear to be the hallmarks of these three grand announcements. The changes are neither substantial, fundamental nor structural and hence, result in a tragedy of missed opportunities. For example, the Bharatiya Nyaya Sanhita (BNS) (IPC) modifies 175 of 511 IPC provisions — 34.24 per cent — but mostly marginally. This includes the repeal of 22 provisions and an addition of only eight. Chapter II of the IPC on General Explanations, which contained 48 provisions, has been packed into section 3 of Chapter I of the BNS. Similarly, Chapter XVII of the IPC on Offences Against Property, which contained 84 provisions, has been packed into 31 sections of Chapter XVII of the BNS. Therefore, as far as BNS is concerned, the real change is only an addition of eight new sections, which is 2.24 per cent of the total 356 sections.
Third, the government’s prime pitch of “Indian” laws is belied by neither decolonisation nor de-fanging of the most symbolic colonial curse — sedition (Rajdroh). Merely rechristening it as Deshdroh or a form of treason is an unintended salute to Macaulay. Adding insult to injury is the enhancement of the penalty from three to seven years. This is especially shocking because this has happened after two orders of the apex court in May 2022 and October 2022, recording the statement of no less than the Attorney General that the government would reconsider the entire issue, and in the meanwhile, keep such prosecutions in abeyance. The present more ferocious reincarnation of sedition is not only a betrayal of the SC and the nation, but is a living reality of state oppression at the ground level, when anyone, especially the fourth estate, speaks truth to power.
Fourth, the Home Minister’s defence regarding the permissible remand period of 60/90 days being altered by section 187 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) (CrPC) is that the total period remains the same, but can now be sought by the police in bits and pieces within the first 40 days or 60 days (depending on whether the chargesheet filing limit is 60 days or 90 days for different categories of offences) and not continuously at one go. This defence hides the real malaise. The new laws allow the dangling of a Damocles’ sword on an undertrial. Henceforth, one may be detained for two days in one week and three days in the following week within the 40/60 day time period, as applicable. This explanation is retrograde and enhances the actual and potential harassment of arrestees. It decreases certainty and is practically unnecessary: Interrogation by police must be direct and forthwith since the arrest is already supposedly based on solid pre-existing material. While a recent Supreme Court judgment in Senthil Balaji appears to endorse the government’s viewpoint, another SC judgment, Anupam Kulkarni, now referred to a larger bench by Senthil, has frowned upon piecemeal police custody. Parliament should have waited for the judiciary to sort out this set of divergent views.
Fifth, a structural reform required innovative approaches like the established institution of Recorders in the UK. Recorders sit in both Crown and County Courts and generally handle less complex or less serious matters. Appointed after a fair competition by the Judicial Appointments Commission, they are expected to sit for 30 days a year. Short though this may sound, Crown Courts in England have disposed of an average of 15 lakh cases per annum for the past 10 years. That is a large figure for that country and enhanced periods of sittings in the Indian context can lead to similarly beneficial consequences. Indeed, professionally less active senior advocates also present a good pool to draw upon for such ad hoc and temporary posts for, say, 90 or 120 days per year. Such structural reform alone can combat the scourge of arrears besetting the Indian criminal justice system.
Sixth, much of this could have been avoided if genuine and broad-based consultations had taken place. Repeated government assertions that a Committee in 2020 led to the 2023 report is no proof of wide-ranging consultations. I cannot think of any legislation even fractionally the size and scope of these three laws being implemented without even reference to the Law Commission. Perhaps the government was apprehensive of a negative nod, as happened qua the Uniform Civil Code and the previous Law Commission.
The quality and efficacy of such initiatives are always dependent on experiential consultative mechanisms, sadly absent in this case. The small committee’s composition itself reflects a disproportionately non-representative sample in the world’s largest democracy. Those two guiding polestars in any exercise of this kind— transparency and accountability— are clear casualties.
All in all, India, in whose name the entire exercise was undertaken, becomes the loser suffering missed opportunities, cosmetic tinkering, absence of far-reaching structural reform and no panaceas for the triple scourges of mammoth criminal case arrears, endless trials and an abysmally low conviction rate.
The writer is a jurist and national spokesperson, INC. This article is the third in a series marking 75 years of India’s Independence
