New Nyaya Sanhita bill designed to give more power to the police and to the state

Had the Union government been serious about reforming the colonial-era laws, it would surely have introduced them on the very first day of the monsoon session, allowing the MPs time to study the provisions?

Instead, the three bills that seek to replace the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence Act were sprung on the Lok Sabha at the fag end of the session, on the very last day.

Significantly, these bills were introduced by the home minister—not the Law Minister.

True, the bills are to be sent to the parliamentary committee attached to the home ministry for scrutiny, and yes, the legal fraternity will have time to debate and discuss the pros and cons before Parliament meets again. But it will be the government’s sole discretion to accept the amendments, if any, suggested by the parliamentary panel or other bodies.

For all practical purposes the three new bills seem to be a fait accompli.

What is apparent is that the bill seeking to replace the IPC vests the police and the government with even more power than they had in colonial times. While the IPC allowed the police to ask for custody of the accused (police remand) for up to 15 days, the new bill proposes to extend the remand period (at the discretion of the police itself!) to 60 or even 90 days. No justification, case study or empirical evidence apparently need to be cited to justify the extension!

What is likely to happen, as pointed out by Kapil Sibal in his preliminary reaction, is that the provision will be used by the state and the police against political opponents.

Critics have also been quick to point out that had ‘reforms’ been the focus, the bills would have sought to restrict the powers of the police while dealing with citizens—not enlarge them.

Already there are complaints that the police use torture as a means of securing confessions for conviction. The practice of planting evidence is also believed to be widespread. But the bills do little to address these issues.

We are clueless whether the Delhi-based expert committee, constituted in the middle of the pandemic in 2020, consulted the states. One of the perennial weaknesses of drafting laws in India is the absolute absence of empirical data and research to highlight the need or urgency of said laws.

To cite an example, the Bharatiya Nyaya Sanhita—that is to replace the Indian Penal Code—has done away with the Act of Sedition. Indeed, the government had told the Supreme Court bench that was hearing petitions seeking the repeal of the Act that the government was taking steps to modify the Act. It has now been repealed—but similar or even more draconian punishments have been prescribed for subversive speech, writing or acts against the state, which are surely but 'sedition' under another name.

Yet there is no evidence that the committee actually studied the number and nature of the cases of sedition filed during the last 10 years to understand what constitutes sedition.

Section 195 of the new bill refers to punishment for ‘jeopardising the sovereignty, unity, integrity or security’ of the country. The definition has been deliberately kept vague, and it is possible that the section will be used against journalists, writers, the media and dissenters.

The bills have introduced several welcome and progressive provisions, like providing for community service as punishment, summary trials to dispose of petty crime cases, defining terrorism and committing to a ‘forensic infrastructure’ being established in every district within the next five years.

But good intentions do not always lead to implementation. What happens to the cases and trials during these five years?

Also, a law is only as good as the law-enforcing agencies—nowhere more clear than in New India. As long as the state continues to treat citizens as enemies and use the law selectively, no real reform is possible.

Monu Manesar, the infamous cow vigilante from Haryana who is said to be absconding for the past two years, was felicitated this week by a TV channel. It is clearly not because the IPC has no provision to arrest and punish him that he is still at large.

An overhaul of the criminal justice system, as has been pointed out repeatedly by the experts, will require re-defining the relationship between the state and the citizen, drastic reforms in the police and the judiciary and widespread prison reforms.