The 17thLok Sabha’s penultimate session ended with the government pushing a major reform in India’s criminal justice system without the involvement of 146 MPs, who were suspended from both Houses. In a matter of just three days, Parliament replaced three statutes governing criminal jurisprudence — the Indian Penal Code (1860), Code of Criminal Procedure (1973) and the Indian Evidence Act (1872) — with the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nyaya Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA). The central problem with this entire exercise, besides the chaste Hindi titles which could alienate non-Hindi speaking regions, is that it does not represent a genuine break from the colonial past.

The three Bills are, for the most part, copies of the statutes they replace. P Chidambaram, lawyer and a member of the Parliamentary Standing Committee that examined the Bills, estimates that 90-95 per cent of the IPC has been “copied and pasted” in the BNS, 95 per cent of CrPC in BNSS and 99 per cent of Evidence Act in BSA. In what is likely to only create confusion for law enforcers, practitioners and the common man alike, the copied sections have been rearranged into new clauses. To locate a familiar section, for example Section 302 of the IPC, the entire BNS will have to be combed to find the equivalent Clause 101.

The new laws do not address the basic problem of the lack of separation of investigation and prosecution wings. Unlike in the US where the District Attorney’s office examines the quality of evidence, investigating agencies double up as prosecuting agencies in India. This is the reason for the police’s inability to get a conviction in courts. Another much-needed reform was aligning the punishment with the seriousness of the crime. The new law remains uneven wherein the punishment for inciting riots (Clause 192, BNS) is imprisonment for one year but that for making false promise to marry (Clause 69, BNS) is 10 years. In personal matters, the reforms by the Supreme Court such as reading down of the adultery law in Section 497 of the IPC in Joseph Shine-versus-Union of India, 2018, has been undone by bringing in Clause 84 of the BNS. A saving grace is the introduction of community service under clause 4(f) of the BNS, although it can benefit from a clearer definition.

The new laws favour harsher sentences and expanded police powers. Clause 187(2) and 187(3) of the BNSS enhances the period for which a detainee can be kept in police custody. The Clause holds that a Magistrate can authorise the detention of an accused up to 90 days in heinous offences and 60 days in other offences. The new law goes against the decision of the apex court in CBI-versus-Anupam J Kulkarni (1992)in which the total period of detention was held to be 15 days. In issues of ‘sedition’ (or its equivalent defined under Section 150 of BNS), organised crime and terrorism, the definitions are vague and open to misuse. In sum, the laws could have been conceived with more rigour and less haste.

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