New Delhi, India — A suite of three controversial criminal laws introduced in 2023 by the Indian Parliament has sparked widespread criticism from various sectors of society, including legal experts and opposition political parties. These new statutes, which went into effect on July 1, include the Bharatiya Nyaya Sanhita (BNS), replacing the Indian Penal Code of 1860; the Bharatiya Sakshya Adhiniyam, replacing the Indian Evidence Act of 1872; and the Bharatiya Nagarik Suraksha Sanhita (BNSS), which supersedes the Code of Criminal Procedure of 1973.
These legislations, signed into law by President Droupadi Murmu on December 25, 2023, underwent a swift passage in Parliament amid the suspension of numerous opposition MPs, limiting robust debate. Critics argue that this has resulted in the undermining of democratic engagement and necessary scrutiny of such significant legal reforms.
The introduction of these laws was partly intended by the government to shift public focus from ongoing controversies involving the National Testing Agency and its administration of the NEET examinations. However, this strategy has led the administration into further contention.
The drafting process, headed by a five-member expert committee established by the Ministry of Home Affairs, has been heavily critiqued for its lack of transparency and inclusivity. Notably, in mid-June, Union Minister of Law and Justice Arjun Meghwal assured that all consultations were properly conducted, and Law Commission reports considered. Yet, there remains considerable skepticism about the extent of the Law Commission’s involvement and the inclusion of publicly expressed concerns by prominent figures like judges in the final drafts.
The new laws have been likened to “old wine in new bottles” by some critics, such as legal experts and opposition leaders who pointed out that a large portion of the previous legal frameworks has been retained. Concerns have been voiced about the potential for the expanded powers granted to police under the new statutes to undermine civil liberties, promote gender discrimination, and centralize authority, thereby weakening federal structures.
Upon introducing the legislation, Union Home Minister Amit Shah emphasized that the spirit of the new laws aimed to safeguard the rights enshrined in the Indian Constitution, moving away from punitive approaches towards delivering justice. He highlighted the removal of “signs of slavery” from the existing laws that he associated with British colonial rule, suggesting that these changes would revolutionize the Indian criminal justice system.
In practice, however, many professionals argue that the modifications to the law are mostly superficial and fail to significantly alter the “colonial architecture” of their predecessors. They argue that the majority of the changes are merely cosmetic, resulting in increased discretionary powers for the police, leading to potential abuses. This includes the controversial provisions which could exacerbate discrimination or vaguely define offenses in a manner that could be exploited to suppress dissent.
For instance, a critical adjustment in the new BNS concerns the definitions around treason and sedition. Sedition, previously codified as a criminal offense, has been replaced with more expansive treason laws, which critics warn could be wielded against individuals expressing legitimate dissent against government policies.
Furthermore, the laws have incorporated provisions that, although aiming at enhancing procedural efficiencies like electronic filing of FIRs and mandatory videography during searches, also include troubling aspects like extended custody durations and discretionary powers for police in filing FIRs for certain crimes.
Leading legal scholars like Anup Surendranath from the National Law University Delhi have criticized the government’s approach, asserting that genuine decolonization of India’s legal framework requires more than renaming laws; it necessitates a transformation in the way state institutions perceive and treat citizens. According to Surendranath, much of the new legislation merely perpetuates a dubious legacy of control and mistrust, under the guise of reform.
Overall, while the government positions these laws as major steps toward decriminalizing justice, the substantial backlash suggests a discordant reality, with many viewing the changes as enhancements to state control rather than genuine legal reform. As debates and legal challenges continue, the effectiveness and impact of these new laws on Indian democracy and civil liberties remain to be seen.