Bharatiya Nyaya Sanhita: A recipe for lawlessness?

Enact laws in haste, repent at leisure. That’s the cautionary warning coming from the legal fraternity on the new Nyaya Samhita trinity, which is to replace the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Evidence Act. The Samhitas are scheduled to come into force on 1 July.

These onerous new laws, with far-reaching implications, were shoved through Parliament at a time when 150-odd members from the Opposition benches had been suspended and were not even present in the House to express their dissent.

No state governments were consulted nor given the time to study the new laws. In his dissenting note to the parliamentary standing committee, former Union minister and lawyer P. Chidambaram pointed out, ‘State governments, bar associations, state and central police organisations, the Indian Police Foundation, the National Law School Universities, judges of the subordinate judiciary who apply the laws every day, eminent retired judges of the Supreme Court and the High Courts, eminent senior advocates and legal scholars were not consulted at the consideration stage by circulating the draft bills and inviting them to comment.’

While the Supreme Court has refused to hear challenges to the new laws on grounds that they hadn’t yet come into force, the Chief Justice of India D.Y. Chandrachud has reminded the government that without investing heavily in infrastructure, material resources and technology, and training of forensic experts and investigating officers, the new laws may become unimplementable. He was referring to the provisions that all criminal trials be completed within three years and judgements delivered within 45 days of reserving them.

Here is a compilation of some of the apprehensions voiced in public by experts, legal scholars and lawyers:

Recriminalising with impunity

“Under the new code, the policeman’s power to arrest an alleged offender, handcuff him and keep him in police custody have now been enhanced and left to his discretion, with minimal judicial supervision.

“A court or police officer in charge of a station may direct the production of any documents communication, including communication devices that are likely to contain digital evidence. The investigating officer (IO) is also exempt from physically attending the trial and his testimony can be secured by videography.

“A major thrust of the Nyaya Sanhita is to re-criminalise all that the Supreme Court has decriminalised in the past. Adultery has been made criminal for both sexes. While the crime of sedition has been dropped, its spirit survives clanking its chains. Section 150 of the Nyaya Sanhita criminalises ‘acts endangering sovereignty, unity and integrity of India’.

“It criminalises words, signs, visible representation, electronic communication and use of financial means for the purpose of exciting secession or armed rebellion or subversive activities or separatist activities or endangering the sovereignty or unity and integrity of India.”

--Sanjay Hegde, senior advocate in the Supreme Court of India

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More draconian than ever

“If the British laws were colonial and draconian, the law enacted by this government is 10 times more draconian. Earlier there was an attempt to reduce the number of days of police custody. The new law says that police custody can be extended to 90 days. So, torture will continue not for 15 days but 90 days. This one draconian provision is enough to condemn the entire thing.”

--Colin Gonsalves, senior advocate in the Supreme Court and founder of the Human Rights Law Network

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Creating two parallel justice systems

“If the three new criminal laws come into force on 1 July, we will have a legal and judicial mess and life and liberty could be in danger… existing procedural laws will continue to apply perhaps for another 20 years or more until cases filed under the new laws reach their fruition beginning with the magistrate court and ending with the Supreme Court of India. This we know as the average lifespan of a case in our country…

“Thus, with the coming of the new laws, the courts will be tasked to deal with cases from the pending batch as well as the fresh cases upon which the new provisions will be applicable creating ‘two parallel criminal justice systems’ for the next two to three decades. In effect, we’ll have two parallel criminal justice systems for the foreseeable future, which can range from 20–30 years.

“I am not aware if the government of India has conducted any study on the impact of new criminal laws on the backlog of cases. If there is any, it is not available in the public domain.”

--Indira Jaising, former additional solicitor general of India

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Citizens will again be subjects

“When we say something is a colonial law, we need to focus on the relationship between the state and the citizen. The colonial state had a certain logic of control and power and used criminal law to control the native population. The nature and use of criminal law continues to be to control the population... In that sense, nothing much has changed. The colonial logic continues.

“We have re-purposed the colonial logic even in these new laws. Therefore, the decolonisation argument rings rather hollow; There is no fundamental shift in the relationship between the state and the citizen through criminal law… The provision restricting mercy petitions and the bar on third parties from filling petitions on behalf of death convicts are unfathomable.”

“It is the final opportunity for death row convicts to have the President or governor consider their plea for clemency. This is an unfair and discriminatory provision against the poor... completely divorced from the reality of our criminal justice system. Who is on death row in India? No rich person. No well-informed, well-educated person who knows their rights. The reason why people do not file appeals or do not file mercy petitions on time is because they are unaware.”

--Prof. Anup Surendranath, National Law University, Delhi

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Law libraries will become obsolete

“All the three major criminal laws now in vogue are time-tested statutes which, at best, needed marginal changes. Even if major changes were considered inevitable, that could have been achieved through appropriate amendments to existing laws.

“Judges, lawyers and academicians have all become, over the years, familiar with most of the provisions of the existing laws. Many of the provisions are at their fingertips. A change in those penal provisions that have withstood the test of time can only bring confusion, if not pandemonium, in the trial courts.

“[…] a minuscule section of the lawyer community may definitely find the new penal laws a goldmine for litigative extravaganza to the detriment of their own clients. But the majority of them are sure to get disillusioned as a result of the change of law. Another section which will draw rich dividends through the change of law is the ‘law publisher’.

“The expensive commentaries and treatises on the existing penal statutes adorning the law libraries… all over the country are bound to go waste. All of them will be forced to buy new commentaries and treatises.

“It will be after several rounds of litigation right up to the Supreme Court that even the textbook writers will get enough case law for incorporation in their commentaries, unless they prefer to switch to the forensic vintage.”

--Justice V. Ramkumar (retd), former judge of the Kerala High Court