In December of 2023, the Bharatiya Janata Party (BJP), during the winter session of the Parliament, pushed through three crucial laws – Bharatiya Sakshya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Nyaya Sanhita, 2023 replacing the Indian Evidence Act, the Code of Criminal Procedure and the Indian Penal Code respectively. These new Criminal Codes were granted Presidential assent on 25th December 2023, but do not come into force until a notification to this effect was issued by the Union government.
The new criminal laws are primarily an exercise in re-numbering and/or re-structuring of provisions in the existing three laws, besides which a small number of necessary changes have been incorporated including proving statutory basis to “zero FIRs”, decriminalisation of homosexuality, introducing a time limit for completing investigations, recognition of electronic evidence as primary evidence, expansion of the scope of secondary evidence among few others. However, it is another set of changes, though small in number, that are concerning since these are pernicious, from the point of view of human rights and civil liberties in the country.
Encoding draconian provisions into the new penal code:
Terrorist Act:
A major and concerning development is the introduction of the crime of “terrorist act” in the BNS, which did not exist in the IPC.
Section 113 of the BNS, adopts a broadened definition of a “terrorist act” from the draconian Unlawful Activities (Prevention) Act (UAPA), while doing away with two (howsoever inadequate) safeguards present in the UAPA, namely, sanction of prosecution from the government and mandatory requirement of an independent authority to peruse the evidence before sanction is granted.
With this new BNS provision, the government has the unbridled choice to prosecute and imprison political opponents using either the UAPA (with its cursory procedural safeguards) or the BNS (without even that fig leaf). By using this provision, the government can declare as terrorist activity, any nonviolent struggle and movement for democracy or social, political or economic justice, or any public discourse that conflicts with the government narrative.
Retaining sedition law under a
new nomenclature:
Contrary to popular belief, the offence of sedition (section 124A of IPC) has been retained under section 152 of the BNS, under a new nomenclature, and a more severe punishment.
The Union government has ignored the concern that sedition is an over- broad, arbitrary offence which has no place in a constitutional republic. It has broadened the ambit of this already over-broad provision to criminalise even “encouraging feelings of separatist activity”, ignoring the Supreme Court requirement of the speech to be linked to the promotion of violence. The Union Government makes a mockery of the order of the Supreme Court suspending trials in sedition cases. This order came against the backdrop of indiscriminate use of sedition to quell dissent, obstruct free speech and target any opposition to the dominant ruling class ideology of crony capitalism and Hindutva. 2010 – 2021, has famously been called the Decade of Darkness, with more than 800 sedition cases being filed against 13,000 people. In fact more than 500 cases of sedition were filed since the BJP came into power in 2014 and 2019. It also found that the conviction rate was 0.1%.
Criminalising hunger strikes:
Section 226 has been introduced in the BNS that criminalises any attempt to commit suicide with the intent to compel or restrain any public servant from discharging his official duty. This alleged crime carries punishment of simple imprisonment upto one year, fine or community service.
Clearly the sole purpose of this provision is to prohibit hunger strikes, targeting the right of people to peaceful and democratic protest. Hunger strikes is democratic form of dissent and resistance, and forms a spirited and important part of the history of Indian freedom struggle – be it Gandhi or Bhagat Singh.
It is ironic that Modi who rode to power on the wave of the hunger strikes during the anti-corruption movement, has criminalised and denied to the people this form of protest.
Criminalising promise to marry:
Section 69 of the BNS states that whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. The explanation to section 69 states that “deceitful means” shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity.
Right-wing groups loudly proclaim that this provision is going to be instrumental in countering the so-called “love jihad”, since the explanation categorically includes “marrying by suppressing identity”.
Right-wing groups loudly proclaim that this provision is going to be instrumental in countering the so-called “love jihad”, since the explanation categorically includes “marrying by suppressing identity”.
Love jihad – this pejorative and communal term for inter-religious marriages is a conspiracy theory on baseless claims that Muslim men suppress their religious identity and “lure” Hindu women into romantic relationships and then convert them to Islam. This claim has been instrumental in demonising and “otherising” the Muslim community despite being a bogey. Remember that even the Minister of State in the Ministry of Home Affairs G. Kishan Reddy stated on the floor of Parliament on 04.02.2020 that “no such case of ‘Love Jihad’ has been reported by any of the central agencies”. Alongside inter-religion marriages, it is inter-caste relationships that have been targeted and this provision could very well be weaponised against them. The BJP government, in pursuing its communal casteist agenda, has ignored the rampant murders of couples, solely because they belong to different castes and communities, also called “(dis)honour killings”. Instead it grants statutory blessings to notions propagating inequality, hatred and are snatching away the rights of the people of this country, and which are steeped in patriarchal, paternalistic notions, where women need to be “saved” from “predatory” men, thus denying the agency and the autonomy of the woman.
Enhancing arbitrary powers of
the police:
It is widely known that the criminal justice system in India has been weaponised against religious minorities, other vulnerable communities like Dalits and Adivasis, and the poor. The new codes by granting arbitrary powers to the police and effectively sanctioning breach of Fundamental Rights by the law enforcement agencies. This will only further entrench a system of oppression through law which will be wielded against the vulnerable.
Sanctioning 24 hours detention
by the police:
Section 172 of BNSS, is a new provision that is introduced that did not exist in the CrPC. According to this provision, all persons are bound to conform to the lawful directions of a police officer given in fulfilment of any of his duties and such police officer is empowered to detain/remove any person resisting, refusing, ignoring or disregarding such orders, and further he “may either take such person before a Magistrate or, in petty cases, release him as soon as possible within a period of twenty-four hours”. Thus statutory sanction has been given to the police to detain persons, without complying with the safeguards around arrest since this would not be deemed to be arrest.
(The author is the State Secretary of CPIML Liberation Karnataka. Republished from Liberation, February, 2024)
