Decolonising the law or dehumanising it?

The Central government has deviously attempted to vindicate the three new criminal justice bills (that have since become law) on the grounds that the existing legislation was ‘colonial’, thereby justifying the move with the implication that what was being replaced was anti-Indian. But a comparison with the old legislation shows that the new laws are regressive and far harsher compared to even pre-Independence British legislation.

The new laws, which replace the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act of 1872, were passed by Parliament in the absence of 146 MPs from the Opposition, who were suspended.

To assume that all laws made by the British were anti-people and anti-human rights would perhaps be a mistake, particularly in the realm of criminal jurisprudence. The British developed certain principles of criminal law that have stood the test of time and that is the reason why, after independence, many of the existing criminal law statutes were adopted by the Indian Parliament.

In fact, a study of how criminal law protection deteriorated over time from the British period to modern India would show that law-making in India has taken a sharp turn towards very repressive frameworks designed to crush already constrained freedoms. The three newly enacted statutes are a case in point.

Criminal law is more than the words of a statute — they are words permeated by judicial interpretation. When laws are replaced mechanically and casually, the extensive body of jurisprudence tends to disappear with the statute. The history of legal battles is done away with by the erratic decision of a lawmaker to change the law.

Finally, as in the present case, there is a more sinister underlying reason for casual changes in the law. It is to destroy the good in the past and to confuse the present. What is perceptible is the Union government’s intention to destroy the fabric of human rights protection in India and increase the power of the Central government in controlling and oppressing the people of India.

Take the sedition law engraved in section 124A IPC which begins with the words, ‘Whosoever by words…’ The sedition law punished free speech. It was designed to criminalise dissent, especially non-violent dissent. Under British rule, strong words used against the Crown were, in themselves, cause enough to attract the charge of sedition and long years of punishment in jail.

In 1968, this was expected to change, when a Constitution bench of the Supreme Court delivered its decision in Kedarnath’s case and, while disagreeing with the Privy Council, said that mere words, no matter how harsh, without any accompanying violence, would not attract the charge of sedition.

Insurrectionary violence against the State coupled with words of incitement was necessary to bring home the charge. Despite this decision, the prosecution of hundreds of journalists, students, activists and others continued. This is why, a year ago, the Supreme Court stayed all prosecutions for sedition.

So, what does this government do? It removes the use of the word ‘sedition’. It then repackages the old section (offences against the State, section 152) leaving the beginning intact and starting with the words, ‘Whoever…by words…’ Thus, even if violent acts did not follow, words alone would constitute the offence.

Freedom of speech and expression is a very powerful protection given in Article 19(1)(a) of the Constitution. In the 1989 S. Rangarajan vs Jagjivan Ram judgement involving Ore Oru Gramathile, a film banned for criticising caste-based reservations, the Supreme Court noted that ‘freedom of expression cannot be suppressed on account of threat of demonstration and procession or threats of violence’.

The bench wrote in the judgement that the ‘State cannot prevent open discussion and open expression, however hateful to its policies’. According to the court, the real danger to public interest ‘springs not from the public screening of the movie, but from State-imposed restrictions on freedom of expression on indefensible grounds’. Therefore, the most draconian part of the new laws is the stifling of speech and dissent.

Under British law, the maximum period an accused could be kept in police custody after arrest was 15 days. It is in police lockups that torture occurs. Even the British understood that if torture was to be curtailed, police custody was to be kept to the minimum. Now, the government proposes to introduce an indigenous law extending police custody to 90 days. No other country in the world has such a terrifying provision.

Understanding that the period immediately after arrest was utilised by the police to torture, the Supreme Court in the D.K. Basu vs State of West Bengal (1996) case laid down basic requirements to be followed in cases of arrest or detention.

According to the guidelines issued, on arrest, the police were required to prepare a memorandum of arrest, giving the place, date and time of arrest. The memo was to be signed by the arrestee. This was because it was common practice for the police to arrest and torture a person for days; then present the accused as having been arrested on a later date, so that any injuries on the body would appear to be sustained pre-arrest.

Second, the arrestee was to be examined in a public hospital every 48 hours and a medical record prepared. The memo of arrest and the medical record were to be sent along with the FIR to the magistrate within 24 hours of the arrest. The court guidelines were to be displayed in every police station. These guidelines are not to be found in the new laws. The new laws are therefore torture-enabling legislation.

To control the tendency of the police to not accept complaints from the public and to refuse to register first information reports (FIRs) in respect of serious offences, particularly against powerful people, the Supreme Court in a five-judge bench decision in the Lalita Kumari case (2013) made the registration of FIRs mandatory.

The court said the FIR must be registered immediately and rejected the excuse that the FIR was not registered because the police were conducting a preliminary inquiry. Under the new law, the government has, contrary to the apex court's decision, made the conducting of a preliminary inquiry the normal rule.

Finally, the provision in the UAPA (Unlawful Activities [Prevention] Act) regarding terrorism has been transplanted into general criminal law. The reason for the duplication is not hard to find. The UAPA, universally condemned as draconian, had two safeguards which curtailed the powers of the investigating officer (IO).

First, the IO, after collecting evidence, had to get a sanction from the government and could not proceed with prosecution in the absence thereof. Second, an independent expert was appointed as an ‘Authority’ under the Act, to assess the evidence gathered and make a report as to whether the prosecution for terrorism should proceed.

Unless these two safeguards were implemented fully, the trial could not proceed. Neither of these safeguards exist in the new statutes drafted. As a result, there is now a severe statute in place, without the two safeguards, which makes the new law doubly draconian.

Colin Gonsalves is a senior advocate in the Supreme Court of India.