As New Criminal Laws Take Effect, Legal Experts Sound Alarms Over Specific Sections

India is currently at the crossroads of a legal transformation as President Droupadi Murmu granted permission to three new criminal justice bills, triggering a flurry of debates and discussions. These laws, which come into force on July 1, signify a departure from the colonial-era Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act. Critics, especially senior opposition MPs, have labelled these laws draconian, necessitating a review after the upcoming Lok Sabha elections.

However, the Ministry of Home Affairs (MHA) wasted no time notifying the Acts, signalling their imminent implementation with an effective date of July 1, 2024, replacing the longstanding Indian Penal Code, Code of Criminal Procedure, and the Indian Evidence Act.

These reforms, enshrined in the Bharatiya Nagarik Suraksha Sanhita (BNSS), aim to streamline procedures, enhance victim rights, and strengthen law enforcement capabilities. However, as with any substantial legislative overhaul, the devil lies in the details. SheThePeople engaged in an exclusive conversation with two prominent legal voices from the Supreme Court, Pragya Palawat, a Women's Rights Lawyer, and Amrita Garg, an expert in Criminal Law.

Comprehensive Revisions in Legal Framework

The Bharatiya Nyaya Sanhita (BNS) is set to replace the IPC, reducing the number of sections from 511 to 358. This new code introduces 21 new crimes, extends the duration of imprisonment in 41 offences, increases fines in 82 offences, and incorporates minimum punishments in 25 crimes. Additionally, it introduces community service as a penalty in six offences and removes 19 sections.

Similarly, the Bharatiya Nagarik Suraksha Sanhita (BNSS) will take the place of the CrPC. It features 531 sections compared to the CrPC's 484, with 177 sections amended, nine new sections added, and 14 sections deleted. The Indian Evidence Act, comprising 166 sections, will be replaced by the Bharatiya Sakshya Adhiniyam (BSA), which includes 170 sections, with changes in 24 sections, the addition of two new sub-sections, and the removal of six sections.

Reformation of Sedition Offense: A Threat to Freedom of Expression

Pragya Palawat, known for her expertise in women's rights, expresses concern over the reformation of the sedition offence. In her analysis, she delves into the ramifications of the change from 'rajdroh' to 'deshdroh' under the newly proposed Bharatiya Nyaya Sanhita. Palawat argues that the removal of Section 124A of the Indian Penal Code and its replacement with a broader, more ambiguous scope in the new Bill pose a severe threat to fundamental rights. 

"This, in my opinion, is the most concerning of all the changes, as this section, due to its vagueness, will have an explosive impact on freedom of speech, freedom of journalism, and demonstrations. What’s most alarming is the punishment for this offence is imprisonment in all cases, unlike a fine for sedition. Hence, it would not be an exaggeration to say that the fundamental right of freedom of speech is under direct threat. This section, coupled with the expansion of the power of the police with stringent detention laws, only goes on to increase the apprehension of curtailment of freedom of speech and expression."

Amrita Garg sheds light on the legal implications, stating, "It's basically Sedition 2.0," emphasizing how the government while assuring the repeal of the colonial offence, introduces a more expansive provision under Section 152 of the Nyaya Sanhita. This alteration not only widens the scope of the offence but also introduces ambiguities, potentially impacting civil liberties and political dissent.

"While Section 124 A of the IPC has been deleted from the new bill, an even more draconian provision has been inserted by way of Section 152 of the Nyaya Sanhita, which substantially widens the scope of the offence while clothing it in apparently milder language. It is interesting to note that in May 2022, the offence of sedition was kept in abeyance by the Hon’ble Supreme Court until further orders. The government has found a novel way to circumvent this, simply by giving sedition a new set of clothes, a much looser set that might very well drown all civil liberties and political dissent within its folds. This is basically Sedition 2.0."

Introduction of New Offenses: Overlapping Laws and Compliance Burden

The introduction of new offences like organized crime, terrorist acts, and hit-and-run prompts a critical assessment from legal experts.

Palawat critically examines the introduction of new offences like organized crime, terrorist acts, and hit-and-run incidents. She points out that the Indian Penal Code already encompasses a wide array of criminal offences. However, over time, special laws were enacted to address specific crimes, resulting in a complex legal landscape.

"For example, terrorism is separately and exclusively dealt with in the Unlawful Activities (Prevention) Act, 1967 (UAPA); similarly, hit-and run is also dealt with in the Motor Vehicle Act. Such overlap in laws may cause additional compliance burdens, costs, and multiple regulatory regimes.  It may also lead to multiple laws providing varying penalties for the same offences."

Garg highlights the vague wording in sections 111 and 112 of the Bharatiya Nyaya Sanhita, expressing concerns about potential misuse for attacking dissent. 

The Government has also introduced “organised crime” as an offence under Sections 111 and 112 in the BNS. The wording of these sections is extremely vague and broad, making it susceptible to gross misuse for attacking dissent. Not only this but now any action causing “general feelings of insecurity” can also be brought under the purview of Section 112 as petty organised crime and made punishable for up to 7 years.  For organised crime, the punishment can extend up to life even if there is no violence. Essentially, the powers given to the police are so vast that any person can, with some liberties taken with the truth, be charged under this and end up spending months, if not years, in jail."

Defining Terrorism Explicitly: Redundancy and Lack of Innovation

The bills aim to redefine terrorism more explicitly. However, Palawat contends that the definition under the Bhartiya Nyaya Sanhita 2 closely mirrors the existing definition in the Unlawful Activities (Prevention) Act.

She emphasizes the redundancy in the language and provisions, stating, "These sections are repetitive and overlap with already existing laws." The concern here is that the redefined definition lacks innovation and fails to address contemporary challenges effectively."

Garg too questions the need for duplicating the offense of "terrorist act" under the Nyaya Sanhita, emphasizing the broad powers given to the police

"The government has not come clean about the need to have the same offence in two different statutes. Moreover, under the bill, 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 also be branded as such.

Inchoate Offenses and the Reformative Lens

Palawat navigates through the inclusion of a new chapter on 'inchoate offences,' addressing concepts like attempt, abetment, and conspiracy. She skillfully contextualizes these additions within the broader framework of the Indian Penal Code, noting that punitive measures for abetment, conspiracy, and attempt already exist.

"The attempt to suicide is the only offence which has no punitive measure. if the offence is commissioned for the simple reason that the accused of this crime will not be alive to undergo imprisonment, Rest, for all the offences covered under the IPC."

Garg, on the other hand, provides insightful analysis on the inclusion of a new chapter on 'inchoate offences,' emphasizing the collapse of distinctions between attempt to murder and actual commitment under Section 109 (2) of the Bharatiya Nyaya Sanhita. She raises concerns about the disproportionate punishment, especially in cases involving life convicts.

"Both prescribe the punishment of death or whole life sentence. Further, the death penalty as a possible punishment for attempt to murder where hurt is caused by life-convicts has no reasonable basis and appears disproportionate. This may lead to a situation where a convict serving life imprisonment for a non-homicidal offence such as forgery, if subsequently convicted for attempt to murder resulting in simple hurt may be sentenced to death."

The introduction of community service as a punishment for theft under Rs 5,000 led to nuanced discussions with Palawat. While she welcomes the reformative nature of community service, the lack of a clear definition and administration process raises concerns. 

"The idea is to bring about change, the idea is to reform and assimilate the petty offender back into the mainstream. The only concern with this section is that the Bharatiya Nyaya Sanhita 2 does not define what community service will entail and how it will be administered. Hence the scope of Community service is unclear."

Balancing Modernisation with Fundamental Rights

While the government's intention to modernize the criminal justice system is clear, both experts stress the importance of balancing this with the protection of fundamental rights.

"The biggest challenge will be the transition," Palawat explains. "There is uncertainty as to the application of laws on the millions of already pending legal disputes in the courts. Lawyers, the judiciary, and police need to be trained and educated, and a comprehensive understanding needs to be developed concerning the newly introduced changes."

"A mere translation of the name of the Acts does not suffice," she claims. "The proposed bills are still far from being called indigenous. The ‘sanhitas’ still consist of numerous regressive provisions that are focused on punishing rather than delivering justice."

While Palawat welcomes changes like victim rights but remains wary of the increased powers granted to the police. "The modification concerning increasing the power of police is a huge threat to the overall basic structure of our Constitution," she cautions. "Advertising that the section of sedition has been repealed to provide unfettered freedom of speech to the media and people is a white lie."

Garg on the other hand offers a more scathing critique of the new laws. "The new laws are, in fact, not a comprehensive overhaul at all. Only 20-25% of the contents of the three bills are a departure from the IPC, CrPC, and IEA," she argues. "Most provisions are nothing but a copy-paste job, with the provisions being renumbered and reordered only to create the illusion of change—old wine in a new bottle if you will."

Garg stresses the logistical nightmare that will ensue as a result of these changes. "Millions of copies will have to be printed and distributed across thousands of police stations, courts, universities, and law schools. Training sessions would have to be conducted for police personnel and judges," she notes. "If the government intended to bring the criminal justice system into the 21st century, then a comprehensive exercise would have to be undertaken, involving a close look at each offence/procedure, the language, and structure of the Acts."

She concludes by calling the government's effort a "grim saga of lost opportunities," claiming that these bills were passed at a time when more than half the opposition stood suspended from both houses of Parliament.