There can be little doubt that India’s criminal justice system was in dire need of an overhaul. The laws that form the composite criminal code have not been substantially touched since they were first enacted in the 19th century. The Centre’s attempt to hit the reset button on basic penal laws and redefine them is, therefore, much needed. On Friday, Union Home Minister Amit Shah introduced three Bills in Lok Sabha to replace the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure, 1973 (originally enacted in 1898), and the Indian Evidence Act, 1872. These colonial-era laws will be replaced, Shah said, by legislation with an Indian ethos. The Bharatiya Nyaya Sanhita, 2023, to replace the IPC; Bharatiya Nagarik Suraksha Sanhita, 2023, for CrPC; and Bharatiya Sakshya Bill, 2023, for the Indian Evidence Act — have been referred to a standing committee. The decision to refer the Bills to a committee and seek the views of stakeholders — given that the government has deservedly invited charges of giving short shrift to the need for consulting Opposition, and scrutiny of legislation — is welcome.
The enactment of the new Sanhita is a crucial step in the Modi government’s stated project to dispel the colonial shadow. To be sure, the imprint of a long ago time has been reflected for far too long in the statute book, for instance, in the law that criminalised homosexuality, on which the courts have also weighed in. The repeal of the sedition law points to a welcome shift in the balance struck between individual liberty and national security, but also frames that shift’s incompleteness. “Rajdroh ko completely ham repeal kar rahe hain… Yahan loktantra hai, sabko bolne ka adhikar hai,” Home Minister Shah said. But the proposed Sanhita contains a provision that penalises “endangering sovereignty, unity and integrity of India”. Without calling it sedition, it expands its definition, including aiding through financial means and “subversive activities”, and encouraging “feelings of separatist activities.” Going forward, other aspects of the new criminalisation will need to be carefully debated — introduction of the deceitful promise to marry as a criminal offence, for instance. The insertion of community service as an alternate form of punishment could prevent more undertrials languishing in jails. Recognition of murder by a mob on ethnic, caste and communal lines was also needed. But more must be done to minimise vagueness and looseness of definitions, and to bring the code more fully in step with changes in society and advent of new technologies.
While the argument for a modern nation to erase the colonial legacy of treating the citizen as a subject is compelling, the blame for misuse of laws cannot be solely placed at the door of the long departed colonial power. At their core, due process and personal liberty are inviolable human rights, and the threats to them flow as much from the law books as from congealed structural and institutional realities. These make the criminal justice system more punitive than just. The new Bills will hopefully be thoroughly and rigorously debated in Parliament. But it will take more steps in this direction before the intent of any such reform — to put the citizen at the centre, to bring criminal law in line with the constitutional vision — reaches the aam aurat.