Hurtling towards a police state

The winter session of Parliament which kicks off on 4 December promises to be marked by ‘grand gestures’. One such is likely to be the passage of three new Sanhitas — Bharatiya Nyaya Sanhita (BNS), Bharatiya Sakshya Sanhita (BSS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) — which seek to replace the Indian Penal Code (IPC) 1860, the Indian Evidence Act 1872, and the Criminal Procedure Code (CrPC) 1973. These were scrutinised by the Parliamentary Standing Committee on Home Affairs in a record time of less than two months.

The Opposition’s plea for further consultations and more time to study the provisions were brushed aside, even as jurists flagged concerns that stakeholders such as district and high courts, bar associations, former judges, and reputable legal scholars were not consulted.

In his piece in The Telegraph, Supreme Court advocate Sanjay Hegde called it ‘Code Modi’ ala ‘Code Napoleon’. The new sanhitas would be, he wrote, "an exercise in futility, accompanied by great unnecessary aggravation in a manner reminiscent of the government’s demonetisation exercise. A leader fond of grand gestures often rushes to make the gesture and record it, regardless of necessity or consequence".

While introducing the three bills on 18 August, Union home minister Amit Shah had waxed eloquent on the need to decolonise the Indian criminal justice system. It was a shame for an independent country to bear the burden of oppressive laws formulated by their colonial masters, he said.

“I would have accepted this justification if the new sanhitas treated Indian citizens as the masters or at least as equals,” said Hegde in a conversation with author and commentator Nilanjan Mukhopadhyay.

The standing committee report, ironically, admits that of the 511 sections in the IPC, only 24 were actually deleted and 22 new sections added. The IPC remains, by and large, the same as drafted by Macaulay 163 years ago. Virtually all the 170 sections of the Indian Evidence Act have also been retained, as has 95 per cent of the CrPC. The sections have been rearranged and renumbered. Some have been redefined.

Decolonising the criminal justice system should ideally have redefined the relationship between the state and the citizen. Colonial masters treated the colonised people as inferior. In a democracy, citizens should be treated at par.

The sanhitas, however, treat citizens with increased suspicion and mistrust, so much so that the state appears to be in opposition to the citizen. They empower the police with greater powers and less judicial supervision and restraint than in colonial times. To cite just one example, the BNS Bill has increased the number of crimes which can attract the death penalty from 11 to 15. With little evidence to suggest that the death sentence acts as a deterrent to crime, the state appears set to retain its stranglehold over the life and death of citizens.

The BNSS Bill, which seeks to replace the CrPC, also expands the powers of the state and the police over citizens. "If Code Modi’s sudden introduction in Parliament was the shilanyas of a police state, the hurried report of the parliamentary committee shows us that the pran pratishtha is not too far away," wrote Hegde.

In Sanskrit, sanhita literally means a collection, but the wider reference is to Vedic hymns and mantras, writes reputable legal scholar G Mohan Gopal. The discriminatory Manusmriti, for instance, is a sanhita. In his article in The Wire, Gopal points out that the Bharatiya Nyaya Sanhita introduces a dozen chilling changes to the law.

"Six of the 12 sets of changes create powerful weapons to silence dissent, decimate opposition and shut down public discourse." Five other changes expand ‘police raj’, while the 12th "intensifies the pain and suffering of those who are targeted for democratic thought and action through enhanced incarceration, including in police custody. It seems also like a frisson of schadenfreude for the rulers."

The BNS also redefines a terrorist act as one that "destabilises or destroys the political, economic, or social structures of the country". Peaceful protests against inequitable social structures, or non-violent democratic actions and expressions through speech or writing run the risk of being seen as terrorist acts. "Whereas an act to destroy or destabilise the social structure (caste system) will be deemed to be an act of terrorism, an act to destabilise the constitutional structure will not."

The sanhitas give the police a free pass. Recording an FIR will become discretionary as the police may decide to conduct a preliminary enquiry to ascertain whether there exists a prima facie case. Thus, more crimes will go uninvestigated. The investigating officer will be exempt from physically attending the trial, and their testimony can be secured by videography.

Amit Shah’s decolonised police will also retain the power to use force to disperse peaceful assemblies "if necessary for public security". A new clause in the BNSS (clause 172) makes it incumbent on citizens to conform to "lawful directions of a police officer".

Disregarding such directions or resisting them will lead to detention for periods to be decided by the police. Clause 349 of the BNSS empowers the police and magistrates to compel even those who are neither accused nor convicted to provide biometric details.

Gopal writes that the decolonisation of the admittedly limited progressive content in the colonial codes goes hand-in-hand with the "embracing, retaining and enlarging" of the despotic content. A seemingly small but significant ‘change’ is that the new sanhitas have abandoned the term ‘courts of justice’. What we have in the bills is just ‘courts’. Did the drafting committee find the idea of ‘justice’ colonial?

The government has claimed credit for dropping the colonial crime of ‘sedition’. Sedition (section 124A of the IPC) has, however, staged a back-door entry into the BNS. Clause 150 of the BNS introduces "acts endangering sovereignty, unity and integrity of India" as criminal offences. The clause criminalises acts of "exciting" people through electronic communication and financial means, which are new additions.

Three other prohibited actions are the same as before: "words, either spoken or written, signs or through visible representation". Thus, future governments will be able to target virtually anyone in the same way as our colonial masters.

In Gopal’s interpretation, clause 224 of the BNS can be weaponised against prisoners, Gandhians and workers who go on hunger strike. Fasting is often resorted to by the most powerless, points out Gopal. Even as suicide has been decriminalised, clause 224 says, "whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both or with community service".

The inclusion of "community service" in lieu of imprisonment has generally been hailed; but indications are that it will be used as a political weapon to force political rivals, critics and dissenters to undergo "community service".

Clause 101 of the BNS introduces punishment for lynching defined as murder on grounds of "race, caste or community, sex, place of birth, language, personal belief or any other ground". ‘Religion’ is conspicuous by its absence.

The provision of judgement having to be delivered within 30 days of a trial concluding, with only two adjournments allowed, has been welcomed. There are, however, no provisions restricting the prosecution from dragging investigations and trials through voluminous chargesheets, large numbers of witnesses, and supplementary chargesheets.