A CRITICAL ANALYSIS OF DECOLONIZED CRIMINALJUSTICE ACTS IN BHARAT

ABSTRACT

“Law reforms are not just about changing the letters of law but transforming the spirit in which justice is administered”

This research paper focuses on the implementation of new criminal jurisprudence bills by the Government of Bharat, aiming to do justice beside penalizing citizens. The paper examines, how the repeal of old colonized laws will impact current judicial system and empower citizens. The central element of this paper is a critical examination of the new criminal law acts, which can prevent us to achieve the true goal of justice. Based on the findings of this research, it can be said that our administration , judicial system and citizens themselves are not empowered to adopt the significant changes effectively, that will require to go through a long critical debate in the upcoming years. There are many inconsistencies in provisions which can be used by Government of Bharat against its citizens to suppress the dissent voice of the people which is the crucial element of the democratic nature of a state.

There is substantial space to make changes in the new criminal law acts, as they have broadened the scope of crime with the revolutionary criminal provisions that could foster the growth of justice in the country. Through these examinations, this research identifies significant provisions where key steps need to be taken, which are in the net of serious concerns of being passing the law without extensive parliamentary debates, no significant advice from stakeholders and the real needs of the time.

KEYWORDS

Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, Bharatiya Sakshya Adhiniyam, Law Reform, Criminal Law, Decolonized Legal Jurisprudence.

INTRODUCTION

By breaking the chain of old colonial jurisprudence legacy, the Government of Bharat has implemented new criminal law bills in the name of Bharatiya Nyaya Sanhita 2023 (BNS), Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) and Bharatiya Sakshya Adhiniyam 2023 (BSA). These laws are significant milestone towards the modernization of criminal jurisprudence of Bharat after replacing the Indian Penal Code 1860 (IPC), Criminal Procedure Code 1973 (CrPC) and Indian Evidence Act 1872 (IEA). The Government of Bharat has proposed these laws as a means of providing justice to the people, in contrast to the penalization of the public, which was intended by the British to maintain their administration and exploit Bharat often referred as the Golden Sparrow.

With the addition of different revolutionary provisions such as community service as punishment, mob lynching and hit and run cases a specific crime, there is also considerable criticism about the legalization of government centric provisions with the implementation of these criminal codes.

Many politicians, judges, lawyers have raised significant concerns regarding these new laws. Allegations against the government for curbing the fundamental rights of citizens, arresting people for minor offence under the definition of terrorism and politically controlling the public servants are made. The question now arises that:-

· Whether the new criminal laws truly serve justice or the citizens are psychologically manipulated on the basis of the specific terminology?

· Whether these laws will empower the citizens and judicial system or whether it is again the Bharatiya version of British draconian laws in an independent Bharat?

The hypothesis here is that while implementation of these new criminal law bills aims to achieve justice, there may be significant challenges in its effective execution and unintended consequences. This research conducts an in-depth critical analysis of new criminal laws with the specific objective of providing a comprehensive view of their potential impact on judicial system in future. This paper will be significant for policymakers, scholars and legal professional as it provides critical analysis of new legislative changes in the judicial system, identifying areas for improvement and guiding us on the path of justice.

LITERATURE REVIEW

It is the beginning of the “Nyayakaal” in context of the Bharatiya judiciary. This beginning is having the positive outcomes along with the concerns over significant inconsistencies in law which can completely undermine the entire goal. While examing the different legal text and scholar’s interview such as Kapil Sibbal, Ravish Kumar and legal blogs and articles by Live Law, Hindustan Times it is evident that there is retention of broad scope of terrorism, sedition in new form under the title of act endangering sovereignty, unity and integrity of India under Section 152 of BNS, etc. which will hinder the progress.

The Hon’ble Senior Advocate Kapil Sibal criticized the acts pointing to such issues as having no clear definitions of terms that are mentioned in Section 152 of the BNS such as ‘separatist activities’ that may be used to suppress dissent. Critics such as one from the The Hindu editorial have also pointed out flaws with the broader definition of terrorism, which does seem to purse provisions of the Unlawful Activities (Prevention) Act 1967 (UAPA), that inherently allow the government to go overboard. Former Supreme Court Judge Justice Madan Lokur further warned that granting police custody up to 90 days under the BNSS carries more dangers of custodial violence and power abuse pointing to previous events of police assault.

Critics have also questioned the impunity that the AFSPA offers to armed forces, according to human rights activists, which could in turn result in human rights violations, a concern also voiced by journalist Arfa Khanum Sherwani in The Wire. These arguments suggests that, although the laws aim to reform the criminal law, their broad clauses and increased state authority may be detrimental to civil liberties. These concerns have been substantiated by the new acts itself, as there is also the lack of judicial interpretation and precedents of these new laws.

CRITICAL ANALYSIS OF BHARATIYA NYAYA SANHITA, 2023

Definition of Terrorism: Any person who commits any act either within the country or outside, which constitutes an attack on the unity, sovereignty and integrity of Bharat is considered as terrorist in new law. This definition appears to be similar to Section 15 of the Unlawful Activities (Prevention) Act 1967, which has been made general by government after implementation of it in the basic criminal code beside keeping it outside the specific laws. It raises serious questions over the accountability of the government to not misuse these provisions for declaring its dissent voice protestors as terrorist especially given past allegations against the government for such actions.

Mob lynching has been added as a crime punishable by 7 years or life imprisonment. While this provision is a significant step in addressing its rising cases, still concerns remain since there is no face of a Mob, how the Police or the government is going to apprehend actual perpetrator. Even if it is made crime then how government can ensure to punish the actual perpetrators and what is the guarantee by government that an innocent person will not be arrested by police just to close the case or to save another high-profile person. Hence, it calls for the rigorous scrutiny of such cases.

The provision of Section 152 of BNS shows that, even after the abolishment of sedition law it has been merely transferred under the name of treason and there are still the elements which include Sedition. There are many ambiguities which are left in the definition section of “separatist activities” and “subversive activities” which can be interpreted by the government at any time, if they with malafide intention arrest someone who speaks against the policy of government by presenting the evidence before the court which comes under the scope of these undefined terms.

Section 63 of the Code defines the offence of rape in a manner that is gender biased since the offence is only applicable to women. In today’s definition, gender is not only males and females, but also the Lesbian, Gay, Bisexual, Transgender, Queer/Intersex/Agender persons. If the law offers protection to women, then where is justice for a man, for instance the man who was raped by four women in Jalandhar? Is this justice for any such victims? While it may seem that anatomically men are raped less often this does not justify leaving them without legal protection. Also, it does not protect the third gender from sexual harassment as much as it should. In other words, is rape only the violation of women only? Are only men to be prosecuted for such crimes? Is this a modern justice system for a New Bharat or is it steeped in a conservative legal culture?

Absence of Provisions for Sexual Offenses Against Animals

The new legal reform does not include provisions for sexual crimes against animals, which is a major disadvantage for those who defend wildlife and the rights of animals, given the many cases of animal sexual assault documented throughout the country. And this legislative vacuum also leads to confusion among the people because the Supreme Court has given animals the status of legal personalities with the right to life. Isn’t it quite right for animals to be given legal personality while they do not have any rights against sexual abuse?

CRITICAL ANALYSIS OF BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

· Increase in Military Personnel Power

In the previous bills military persons were exempt from arrest for any act done under the approval of government under the section 45 whereas in the current bill they have expanded this exemption in a rigorous manner. It gives military persons to be in regions covered by Armed Forces Special Powers Act and give the authority to carry out searches without a warrant and to arrest anyone who breaks that law. Prior this government checks and balances was there which is not in this act. What will happen if case like Nagaland’s six innocent people who were shot by armed force will keep coming. It will surely lead a feeling of disaffection among the Bharatiya citizens against the military which will increase the Maoist and Naxalist activities.

· Police Detention 15 to 60 Days

Police could keep a person maximum for 15 days under the Section 167 of CrPC. Whereas under the Section 187 of BNSS this limit has been endured up to 60 or 90 days, depending on the circumstances. This raise concerns o lengthier custody terms, serious custodial violence like in the case of Raghubir Singh v. State of Haryana where a victim dies due to torture in the custody

· Trials Conducted Without Present

Trials in absentia are permitted by Section 356 of the BNSS, subject to three requirements being met: the accused must be a proclaimed offender, have absconded from justice and it is impossible to arrest him or her immediately. Nevertheless, where the intention of this provision is to minimize court related works, requirements for fair trial may be compromise.

This kind of trials may lead to wrong convictions; at the same time, it influences law enforcement personnel not to consider some aspects in their investigations. Further, it denies the accused person an opportunity to launch an appeal before he presents himself in court hence the lack of a reasonable chance to counter the allegations. This clause is capable of negating the right to fair trial and in force justice with efficiency at the expense of justice.

Uncertainty Regarding Witness Protection Law. Every state government is required by Section 398 of the BNSS to create a Witness Protection Program. This, however, is in opposition to the 2018 Witness Protection Scheme, which lays out specific guidelines for protecting witnesses. Section 398's vagueness over whether state laws should comply with this plan may cause witnesses to receive uneven protection, leaving them exposed. The absence of precise criteria allows state governments to take advantage of this ambiguity, which could jeopardize witness safety and reduce the efficacy of the protection provided.

· Petitions for Mercy

The BNSS’s Section 473 deals with the appeals for mercy for death row. These petitions can only be filed by convicted person, their legal heir according to new clause. This present a problem since the person who are deprived to access the legal counsel due to poor economic condition can be left behind. This is prohibition of the right of survival of prisoners in jail for life time after being convicted for the crime and held for death penalty.

CRITICAL ANALYSIS OF BHARATIYA SAKSHYA ADHINIYAM, 2023

· The most of the provision of this are similar to the previous act and some digital evidence related provisions have been added in this Act. In this act under the Section 398 every Act is stated to have a witness protection program which can conflict with the Witness Protection Scheme of 2018 which can create ambiguity and lead to conflicts which again led to injustice to witness, accused ad victim themselves.

RECOMMENDATIONS

As the problem is very vast under the wide definition of terrorism, the definition serves better with specific parameters or examples. This will also discourage its use against dissenters and political activists due to lack of basis for such use. There is a need to set up an independent reviewing authority over cases categorized as terrorism so that the phenomenon does not involve unjustified blacklisting of citizens due to their political stand or protests.
It is a positive change that mob lynching has been made punishable under the law, but it remains unclear what criteria would define such criminals and bring them to justice. In this case developing a specific agency that will work on investigations of mob involved violence can help in increasing responsibility. With this there should be awareness programs also regarding the mob lynching.
In a bid to avoid the risk that the elements of the sedition law are being transferred into the new definition of treason, then it is important especially the parliamentary legislation drafting team to give concrete meaning in the definition of the treachery law to the vague terms like; separatist activities, subversive activities. This will go a long way in parrying pertinent proper application of those provisions and safeguard those individuals from being unjustly charged.
The present definition of rape needs to be expanded to include the ones commonly experienced by queer and trans people. This revision should make sure that female victims of the crime receive legal protection like the male victims. This study has suggested that creating particular legislation to deal with sexual violence against men and other members of the LGBTQ+ community is crucial for more equal justice systems.
Sexual offenses against animals still remain without legal protection due to the absence of relevant laws. To address this, there is need to set specialty laws for the protection of animals to consider their status as witting creatures. The implementation of awareness campaigns will help create awareness of the need to protect animal rights from misuse.
Frequent use of military personnel powers requires restoration of the legislative oversight to call perpetrators of AFSPA actions to order. Formation of an Independent Oversight committee will act as a mouth piece for the people in as much as the military activities and conducts are concerned.
Specific controversy over the duration of police detention extended from previously 15 days up to 60 or ninety days should be rectified by reverting the correct number of days. Observing a higher standard for any extension, and keeping constant checks with the detention conditions will also lessen exploitation of detainees’ rights.
The provision allowing trials in absentia should be limited to clear circumstances of the accused. Most importantly, there is the need to enable the defendants to argue their cases personally. The right to a fair trial of defendants who have been tried in absentia will be preserved by stipulating the recognition of their right to appeal such decisions once they appear in court.
For that sake we have to develop formulated procedures for the none legitimate witness protection so as to conform to the 2018 Witness Protection Scheme. Periodic checkups of such programs will also reveal lapses in safety or support mechanisms, in order to innovate the ways that witnesses are protected.
·Currently, only the state Supreme Court Justices, the governor or a head of state, can file petitions for mercy on behalf of death row inmates and the law should be changed to allow legal advocates to file the petitions. To ensure that inmates have an equal shot at fighting for the unfair ruling they received and to make sure their rights do not continue to be violated, programs for legal representation and help will be implemented.
In order to reconcile the differences between new provisions and existing Witness Protection Scheme, it is legal to harmonize the provisions as a way of removing confusion. Explaining the rights of the witnesses, and existing resources dedicated to witness protection, will help protect witnesses, and allow them to contribute to the process in court without the risk of facing retaliation.

METHODOLOGY

The Doctrinal Research methodology has been used in this Research Article with a multifaceted approach to analyse the new three criminal acts. The Quantitative case study method was adopted to examine the socio-judicial consequence of new criminal jurisprudence. Its research design entails the comparative analysis of the new laws with the old legal texts and understanding the pre-interviewed legal scholars and stake holders’ point of view and their perspectives towards the new criminal laws. The research paper involves identification, collection and critical analysis of the primary and secondary sources to provide logical insights of the law. To assess public perceptions and media representations of laws, public opinion data and media content analysis are incorporated into the study.

RESULTS

Based on the research conducted in this paper, one can conclude that there are major difficulties and concerns regarding the new criminal law bills introduced in Bharat. Firstly, the substitution of British law with Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) has been portrayed as the process of indigenizing laws to be Bharatiya. Nevertheless, the study finds that some of these provisions such as the section 152 of the BNS contain apparently vague elements like the ‘separatist activities’ part, which comes with the dangers of the government’s use of the law to curb dissent, similar to the previous allegations of the sedition law. Furthermore, although the new bills try to include new significances to the existing crimes such as mob lynching and terrorism, there are concerns about civil rights abuses due to ‘new age powers’ that are given to the state, such as extension of police detention and authorization of military forces’ action without adequate restraints.

Provisions such as community service as a form of punishment, and formal recognition of crime like mob lynching are progressive measures of justice. However, the following areas of weakness were identified in the reform; lack of special protection for vulnerable groups and individuals especially LGBTQI+ community, as well as the absence of any provision for sexual offences against animals. The study also suggests that law enforcement, judiciary and public are not effectively capable for these changes and therefore this transformation of the criminal justice system will take years of discussions, adjustments and oversight.

DISCUSSION

The discussion section focuses on the dual perspective of the new criminal law reforms which despite having big and noble objectives has almost pragmatic and legal flaws which may hamper it’s working. The advent of the Bharatiya Nyaya Sanhita 2023, provides an occasion to respond to colonial remainders, yet the continued persistence of colonial residues in the form of questionable aspects such as the wide definitions of terrorism and separatism. These ambiguities may be abused by the state to limit freedoms of political opposition, which is undesirable in a democratic system. The quotation that while framing laws, it should ‘transform the spirit in which justice is administered’, assumes a paradigmatic significance when one thinks of the possibilities of abuse of such laws under a politically motivated regime.

The new provisions on mob lynching and terrorism although target ephemeral occurrences in society have no clear procedure on how to implement it especially on the aspects of investigating the mobs or exoneration of the people who were wrongly accused. Moreover, the paper points out that extraordinary police powers may result in custodial violence with the extension of police custody and creating apprehensions on the controversial impunity granted to the armed forces under the Armed Forces Special Powers Act (AFSPA). It may also pose certain risks of negative outcomes, the erosion of justice to which the reforms are aimed at.

In conclusion, the discussion recognizes the purpose of the reforms but underlines that effectiveness of these changes will largely depend on the further detailed public discussion, openness, and engagement of different groups of people, including legislators, lawyers, and citizens. Though the aforementioned bills hold the promise of bringing changes in the criminal justice system of Bharat, without giving due consideration to the above criticism, the reformative steps may well turn into instruments of perpetrating the same injustice.

CONCLUSION

Therefore, the new criminal bills surrounding criminal jurisprudence, provide a new progressive direction for Bharat to move from the colonial model to the modernization of criminal jurisprudence. Nevertheless, while the reformative objectives are laudable, the vagueness of definition, increase in state authority and prospect of abuse of some of the provisions give rise to genuine concerns. The laws that exist today need to be reanalysed and some changes or additions should be made to the legislation to ensure that powers do not undermine people’s rights and actually protect the principles of justice, equality, and transparency. Thus, these concerns must be addressed to ensure that justice is served, though the framework of democracy that exists in Bharat can also be used for a more refined approach to the legal reforms.

AUTHOR:

PRATIKSH SHARMA

FACULTY OF LAW, UNIVERSITY OF DELHI

REFERENCES

1. Bharatiya Nyaya Sanhita, 2023

2. Bharatiya Nagarik Suraksha Sanhita, 2023

3. Bharatiya Sakshya Adhiniyam, 2023

4. The Origin of Doctrine of Sedition by RB Manning.

5. Press Information Bureau’s article on New Three Criminal Law Bills.

6. Legal Implication of Bharatiya Nyaya Sanhita by Live Law.

7. A Critique of New Criminal Jurisprudence in Bharat by Ravish Kumar.

8. The New Criminal Law Bills: A closer Look by Kapil sibbal.