Criminal law Bills and a hollow decolonization
With the introduction of Three Criminal Law Bills and the Committee for Reforms in Criminal Law in 2020, there was an anticipation that these Bills would eventually show the path towards the decolonization of Indian criminal law.
GS-02 (Government Policies and Interventions, Judiciary)
Supreme Court, Article 348, Bharatiya Nyay Sanhita Bill 2023, Bhartiya Nagrik Suraksha Sanhita Bill 2023, Bharatiya Sakshya Bill 2023
Examine the key provisions of the criminal law Bills introduced in 2023 and their impact on the relationship between the state and its citizens. (250 words)
Dimensions of the Article:
- The Nature of Colonization
- The Need for Change
- Overbroad and Constitutionally Suspect Provisions
- Expansion of Suppression
- Ignoring Police and Prison Reform
- A Broader Perspective
The Nature of Colonization:
- Colonization is essentially a process of oppression, where those colonized become tools for the dominant colonial power to fulfill its desires. The colonized subjects unquestioningly serve the colonial state and are at its mercy. Those in power possess rights, while those without are obligated to comply.
- Simultaneously, the colonial state perceives itself as perpetually under threat from the people it governs. Therefore, its primary concern is to safeguard its interests, not those of the subjects, who are viewed as not only inferior but also inherently suspicious.
- This forms the core essence of colonial laws—to protect and secure the colonial state, not the colonized people. Laws like the Indian Penal Code (1860), which the Bharatiya Nyaya Sanhita (BNS) aims to replace, were not solely intended to maintain law and order but also served as a means for the colonial state to legitimize its status as a potential victim, ostensibly under threat from the very populace it subjugated.
The Need for Change:
- A truly ‘decolonized’ or post-colonial law must reflect the altered relationship between citizens and the state. In this paradigm, independent citizens are meant to be served by the state and government they empower, rather than being forced into servitude. This fundamental shift should influence the process of law-making and the priorities and objectives of the law itself.
- Regrettably, the Bills fall short on these crucial criteria both in their creation and their content. Their framework views citizens with heightened suspicion and distrust, creating a sense that the state is almost in opposition to the citizens it is supposed to serve.
Overbroad and Constitutionally Suspect Provisions:
- The Bills introduce sweeping changes that undermine the rights of individuals while empowering the state. Most of the proposed alterations to the BNS, such as those related to organized crime, spreading false information that endangers sovereignty, acts that put sovereignty at risk, and terrorist acts, are excessively broad and raise constitutional concerns.
- This isn’t merely a result of poor drafting but a deliberate attempt by the state to broaden the definition of offenses as much as possible, consequently expanding the scope of police powers. Many of these ‘new’ offenses already fall under existing laws, either special legislations or the Indian Penal Code, adding an extra layer of criminalization that serves to increase police authority without genuine necessity.
Expansion of Suppression:
- A significant aspect of colonization is the use of suppression under the guise of security by providing the executive branch unchecked police powers. This feature is deeply ingrained, with the Indian state actually increasing its police powers post-Independence.
- The Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaces the Code of Criminal Procedure, 1973, significantly enhances these powers. For instance, it allows for longer periods of police custody than what the current Criminal Procedure Code permits. Certain provisions in the BNS, like those related to terrorist acts, grant the police considerably broader powers than even harsh laws like the Unlawful Activities (Prevention) Act.
- This legislative trend of augmenting police powers, either directly or through other laws, perpetuates colonial-era authority rather than dismantling it.
Ignoring Police and Prison Reform:
- Despite widespread acknowledgment that the police and prison systems are vestiges of colonization, the decolonization envisioned by the Bills provides no avenue for their transformation. Without a fundamental reorientation of these institutions, calls for decolonization remain hollow.
- The Bills, by increasing the length of sentences across the board, as well as broadening police powers, essentially replicate the logic of colonial criminal law. The implications for India’s overcrowded prisons and the impact on policing, including who is targeted and how, are either disregarded or given insufficient attention.
A Broader Perspective:
- The narrative of decolonization surrounding the Bills should not be considered in isolation. Concurrent developments in other areas of criminal law are pushing us back toward colonial methods and outcomes of lawmaking.
- For example, laws like the Criminal Procedure (Identification) Act, 2022, which authorizes the police to take measurements of convicts, accused individuals, and even those taken into custody for preventive detention, further the colonial objectives of increased surveillance of the population and greater state control.
The concept of decolonization is not solely about countering colonization but also embodies the optimistic pursuit of a populace shaping their own destinies. It heralds a shift in the relationship between the state and its citizens, with the focus squarely on serving the people. However, behind the rhetoric of decolonization in the criminal law Bills lurk exaggerated fears of colonial power, undermining the true essence of this transformative movement. To genuinely achieve decolonization, it is essential to challenge and reform not just the laws but also the institutions that perpetuate colonial legacies.