Criminal bill laws and a hollow decolonisation
Source: The Hindu
For Prelims: IPC, CrPC, Bharatiya Nyaya Sanhita, Bhartiya Nagrik Suraksha Sanhita, Bharatiya Sakshya Bill, Indian Evidence Act
For Mains: Government policies, Constitutional amendments, Name changing process in Indian Constitution
Highlights of the Article
Bhartiya Nyaya Sanhitha (BNS), 2023
Bhartiya Saksha(BS) Bill, 2023
Bhartiya Nagrik Suraksha Sanhita
Indian Evidence Act 1872
Indian Penal Code(IPC) 1860
Code Criminal Procedure (CrPC) 1973
Context
In introducing the three criminal law Bills in 2023 and, earlier, while setting up the Committee for Reforms in Criminal Law in 2020, a lot was said about the decolonisation that these Bills will bring about. Unfortunately, the Bills do very little to decolonise Indian criminal law. They do, however, indicate the continuation and intensification of colonial-style powers.
UPSC EXAM NOTES Analysis
1. Colonisation
- Colonisation is, broadly, a process of oppression where the colonised become vehicles for the supreme colonial power to fulfil its desires
- The subject unquestioningly serves the colonial state and remains at its mercy
- Those in power have rights; those without must oblige. At the same time, the colonial state also considers itself to forever be at risk of being victimised by those it rules
- Therefore, the interest it needs to protect is its own, not the subjects’, who are not just inferior but also suspicious. This is the foundational essence of colonial laws — to secure and protect the colonial state and not the colonised
- The purpose of laws such as the Indian Penal Code (1860) which the Bharatiya Nyaya Sanhita (BNS) seeks to replace, was not just to maintain law and order; it was an opportunity for the colonial state to legitimise, through the law, its status as a potential victim under threat from the people it colonised
2. Decolonisation
Decolonization refers to the process by which colonies or territories that were once under the control of colonial powers gain independence and sovereignty.
This process often involves political, social, and economic changes as former colonies seek to assert their autonomy and establish their own governments and institutions.
Decolonization has been a significant historical and global phenomenon, primarily occurring in the 20th century
Key Points regarding Decolonisation:
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Historical Background: Decolonization gained momentum after World War II, as the major colonial powers, such as Great Britain, France, Belgium, the Netherlands, and others, faced significant challenges in maintaining their colonial empires. The devastation of the war weakened their ability to control distant territories, and the principles of self-determination and human rights gained prominence in international discourse.
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Factors Driving Decolonization: Several factors contributed to the decolonization process:
- Nationalism: Movements for national independence and self-determination were often driven by a strong sense of national identity.
- Economic Pressure: The economic burden of maintaining colonies and the desire for economic self-sufficiency motivated some colonial powers to let go of their overseas territories.
- International Pressure: The United Nations and other international organizations played a role in advocating for decolonization and monitoring the process.
- Resistance Movements: Many colonized peoples engaged in resistance and liberation movements, often through civil disobedience, protests, and armed struggle.
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Independence Movements: Numerous colonies and territories gained independence during the decolonization era. Notable examples include India, which gained independence from British rule in 1947, and many African nations that achieved independence from European colonial powers in the 1950s and 1960s.
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Challenges of Decolonization: While decolonization brought independence and self-rule to many nations, it also presented challenges. These challenges included establishing stable governments, addressing ethnic and tribal divisions, and managing economic transitions from colonial to independent systems.
3. Changes made on Criminal bills
1.Bharatiya Nyaya Sanhita (BNS), 2023
- Bharatiya Nyaya Sanhita (BNS), 2023 is a proposed new penal code for India. It was introduced in Lok Sabha on August 11, 2023, and is currently being debated in Parliament.
- The BNS would repeal and replace the Indian Penal Code, 1860 (IPC). The IPC is the principal law on criminal offences in India, and has been in force for over 160 years.
- The BNS aims to bring about a comprehensive transformation in the way justice is administered in India.
- It introduces new categories of offences, such as cybercrimes, terrorism, hate crimes, honour crimes, and mob lynching. It also offers special provisions for protecting women, children, senior citizens, and other vulnerable sections of society.
2.Bhartiya Saksha(BS) Bill, 2023
- The Bhartiya Saksha (BS) Bill, 2023 is a bill that was introduced in the Lok Sabha, the lower house of the Indian Parliament, on August 11, 2023. The bill is intended to replace the Indian Evidence Act, 1872.
- The BS Bill is a comprehensive piece of legislation that sets out the rules and principles of evidence in India. It covers a wide range of topics, including the admissibility of evidence, the burden of proof, and the presumption of innocence.
- One of the most significant changes that the BS Bill makes is to the admissibility of electronic records as evidence. The current Evidence Act only allows paper documents to be entered as evidence.
- The BS Bill, on the other hand, explicitly allows electronic records to be admitted as evidence, provided that they have been authenticated. This is a major change that will have a significant impact on the way evidence is collected and presented in court
3.Bharatiya Nagarik Suraksha Sanhita (BNSS)
- Bharatiya Nagarik Suraksha Sanhita (BNSS) is a bill that was introduced in the Lok Sabha, the lower house of the Indian Parliament, on August 11, 2023. The bill is intended to replace the Code of Criminal Procedure, 1973.
- The BNSS is a comprehensive piece of legislation that sets out the procedures for the investigation, prosecution, and trial of offences in India. It covers a wide range of topics, including the arrest of suspects, the collection of evidence, and the rights of the accused.
- One of the most significant changes that the BNSS makes is to the period of police custody. Under the current Code of Criminal Procedure, a suspect can be held in police custody for up to 15 days.
- The BNSS, on the other hand, allows for a period of up to 60 days for offences punishable with death, life imprisonment, or imprisonment for a period of not less than 10 years. This is a major increase in the powers of the police and has been criticized by some as a threat to the rights of the accused.
4. Significance
- The significance of criminal bills introduced in the Parliament of India lies in their potential to shape the country's legal framework, justice system, and the way crimes are investigated and prosecuted.
- Criminal bills are crucial in addressing various aspects of criminal law and justice in India
- Criminal bills are often introduced to reform and update existing criminal laws. Over time, societal norms and needs change, and legislation must adapt to these changes.
- Significance arises from the need to align the law with contemporary standards of justice and equity.
- Criminal bills can play a vital role in protecting the rights and liberties of individuals. They may strengthen legal safeguards, ensure due process, and enhance the rights of the accused, victims, and witnesses. Significance is evident in the commitment to uphold the principles of justice and human rights.
- Effective criminal legislation can contribute to crime prevention by specifying the elements of criminal offenses, setting penalties, and providing law enforcement agencies with the tools needed to investigate and combat crime. Significance lies in the potential to deter criminal behavior and maintain public order.
5. Challenges
- The bills were introduced without any prior consultation with stakeholders, including lawyers, academics, and civil society organizations.
- This has led to concerns that the bills have not been adequately thought through and may have unintended consequences.
- The bills contain a number of vague and ambiguous provisions, which could lead to arbitrary and discriminatory enforcement. For example, the Bharatiya Nyaya Sanhita Bill (BNS) states that "sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape." This provision has been criticized for being discriminatory against women, as it effectively excludes marital rape from the definition of rape.
- Some of the provisions in the bills could be misused to target marginalized groups and activists. For example, the BNS Bill allows for the confiscation of property of accused persons even before they are convicted. This provision could be used to harass and silence critics of the government
- The bills do not contain adequate safeguards against arbitrariness and abuse of power. For example, the BNS Bill allows for the detention of suspects for up to 180 days without charge. This provision is highly concerning, as it could be used to detain people indefinitely without due process.
6. Way forward
It's important to note that the specific significance and challenges of these bills would depend on their content and objectives, which would need to be examined in detail once they are made public and discussed in legislative bodies or in the public domain. For the most up-to-date and accurate information on these bills, I recommend consulting official government sources, legal experts, or reputable news outlets.
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Practice Mains Questions
1.Discuss the significance of the recently introduced Bharatiya Nyaya Sanhita (BNS), 2023, in the context of criminal law reform in India. What are the key objectives of this bill, and how might it impact the Indian legal system?
2.Examine the potential challenges and controversies surrounding the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, with a focus on its implications for citizen safety and security. How can these challenges be addressed while ensuring effective implementation of the bill?
3.Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)
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