August 19, 2023
Hello and welcome to All Indians Matter. I am Ashraf Engineer.
Recently, the Central Government announced an overhaul of the criminal justice system. It involves replacing the Indian Penal Code and the Indian Evidence Act, both of which are colonial laws, as well as the Criminal Procedure Code, which is outdated. Home Minister Amit Shah said the objective was to “deliver justice, not mere punishment”. The demand for a rethink of these laws has been gaining ground for years but there is a sense of disquiet and even betrayal with what is being proposed now. Experts and activists have issued warnings about several aspects, from provisions in the new bills being vague to the government granting itself more draconian powers to some laws not changing much except for the semantics.
To be sure, our criminal justice system needs urgent reform. It’s one of the most dysfunctional in the world with sub-par investigations and overflowing jails to glacially moving courts that have a backlog of roughly 5 crore cases.
The bills, say experts and activists, are hardly the tools of the transformation India needs. Large parts are mere reproductions of the older laws. And some changes are worrisome.
The genesis of the new bills is rooted in the COVID-19 pandemic. In May 2020, an expert committee was formed for public consultation. However, that and the process that followed left a lot to be desired. Information on the committee’s methodology to analyse the submissions was scarce. The committee’s recommendations were also not placed in the public domain. Did the government undertake other consultations before finalising the bills? We don’t know.
One of the major changes is the introduction of new offences that were missing in the IPC, such as endangering sovereignty, organised crime, terrorism, mob lynching and sexual intercourse by deceitful means. However, experts say these provisions are vaguely drafted and could facilitate arbitrary arrests. Some parts borrow from existing draconian laws on organised crime and the Unlawful Activities (Prevention) Act, better known as UAPA.
Another problem area is sedition, which has been used extensively against civil rights activists and even students. It is being claimed that sedition has been dropped but what we have instead is the introduction of “acts endangering sovereignty” as an offence. This seems to be sedition by another name and will most likely give the police wide powers of arrest.
In the Bharatiya Nagarik Suraksha Sanhita (2023) bill, which seeks to replace the Criminal Procedure Code, the period of police custody for an arrested person has been extended. Under the CrPC, an arrested person can be in police custody for a maximum of 15 days but the new bill allows custody over a 60- or 90-day period depending on the offence.
The Nagarik Suraksha Bill, meanwhile, has some bright spots. Citizens would be allowed to file FIRs in any police station irrespective of where the offence is committed. It also makes it the responsibility of a prison superintendent to ensure that an application is made to courts to release undertrials who have completed half or one-third of their maximum possible sentence. The introduction of community service instead of the present forms of punishment in some cases is a progressive move too.
There is also an emphasis on electronic evidence and forensics. However, experts say questions over the collection and analysis of forensic evidence and their use in courts remain unaddressed.
There are several issues that remain pending. Our overcrowded prisons, for instance, now represent a crisis and nothing has been done to address this. Bail reforms are badly needed. The new bills do not make bail the default option and imprisonment the exception.
There’s also the matter of torture in police custody to extort confessions. Without adequate safeguards, torture will continue.
Marital rape, meanwhile, should have been criminalised but has not been touched.
Far from a transformation, experts have said that the new bills retain more than 80% of the 160-year-old Indian Penal Code drawn up by British historian Thomas Macaulay. Also, the Criminal Procedure Code has been amended regularly, including as recently as 2018. So, this is far from an overhaul.
Some activists have gone so far as to say that the changes represent a grave danger to democracy.
Noted activist Teesta Setalvad, referring to the provision for extended police custody, pointed out that it gives the government room to persecute political opponents.
Reiterating that there has never been disagreement about the need to reform the criminal justice system, Setalvad said that legislative change alone is insufficient. The new bills don’t rectify problems with the law and its processes.
Institutional reforms, therefore, are the key. So, India needs police reforms and also for prison administration. Setalvad suggested that the problem is not inertia but intention.
Moral of the story: legislative changes are much needed but unless those changes are in step with the times and offer what the country actually needs, it will be virtually impossible to topple our corrosive institutional culture.
Thank you all for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at email@example.com. Catch you again soon.