Calling on all lawyers, law students and other legal professionals and, all sections of society, to persuade the Union Government to postpone beyond 1st July 2024, the date for implementation of the Bharatiya Nyaya Sanhita, (BNS), 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and the Bharatiya Sakshya Adhiniyam, (BSA), 2024 to replace the Indian Penal Code, 1860, the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872.
Some reactionary changes brought about are given below:
1. Attacking the premise of presumption of innocence, right to privacy and facilitating profiling by mandating “prominent display”, both physically and digitally, of the name, address and the nature of the offence of an arrested accused, in every police station and district headquarters.
2. Statutorily mandates handcuffing in direct violation of the Supreme Court judgments that hold that public handcuffing violates the right to dignity.
3. Mandates attachment/forfeiture of properties even before the trial has concluded violating the fundamental principle of “innocent until proven guilty”
4. Attacks the right to free and fair trial by permitting the entire trial process, including cross-examination, conducted through video conferencing.
5. Hands arbitrary discretion to the police NOT to register FIRs in cases punishable with three years but less than seven years, instead permitting “preliminary inquiries” to determine if a “prima facie” case.
6. Sanctions possible custodial violence by enhancing police custody from 15 days to 60/90 days.
7. Sanctions the inhuman punishment of solitary confinement, restricting the inmate to their cell with no contact with other inmates and little contact with jail authorities.
8. Encoding draconian provisions into the new penal code including “terrorist act”, sedition and criminalises any attempt to commit suicide with the intent to compel or restrain any public servant from discharging his official duty – all arbitrary powers given to criminalise virtually any nonviolent struggle for democracy or social, political or economic justice.
9. Insulates public servants from accountability by mandating that Magistrate can only order investigation against a public servant only on consideration of report from the officer superior to him, and hearing the public servant.
10. Forthcoming chaos in metropolitans (Bengaluru, Mumbai, Kolkata, Delhi, etc.) since cadre of metropolitan magistrates is abolished with no clarity on transition to the new system.
11. Say no to the new Criminal Codes – it gives the government with excessive powers to clampdown on legitimate political dissent and protest.
12. Encroaching on federal powers by mandating that State Government can remit/commute a sentence only with the concurrence of the Union government.
13. Avoiding law on mob lynching by religious fundamentalists by introduction of “hate crime” in the name if race, caste, community, etc, but deliberating mob lynchings because of religious differences.
These 3 laws will have the effect of impacting the entire edifice, structure and process of Criminal Justice Delivery (CJS) system in India, covering 1.4 billion people across the entire country. Despite this, the new Criminal Codes have not been legitimately scrutinised as they were passed by bypassing the rules of procedure in Parliament, without much debate when there was the unprecedented suspension of 146 Opposition MPs.
Courtesy: Beating the colonial powers at their game- A booklet by All India Lawyers’ Association for Justice
