Draconian not anti-colonial: Bharatiya Nyaya Samhita (BNS)

In the name of denouncing “colonial criminal laws” in the country, the present Union government on Friday, August 11, introduced and subsequently sent the three new bills to the MHA’s standing committee, while changing the erstwhile legal provisions named as Indian Penal Code, 1860; Criminal Procedure Code, 1973 and Indian Evidence Act, 1872 to Bharatiya Nyaya Sanhita; Bharatiya Nagarik Surakshya Sanhita and Bharatiya Sakshya Bill.

In a statement critiquing the move of the Modi government on the last day of the 2023 monsoon session of Parliament, Kirti Roy of Masum has raised serious issues over the new sections introduced and the enhanced punishments.

Section 150 of the Bharatiya Nyaya Sanhita (BNS), 2023 reveals that the word ‘sedition’ has been removed but the spirit of the sedition law is very much existent in the new section. At any moment of time when the government in power has or is given by law, the ultimate authority to determine whether an act/ observation/opinion/association is “anti-national or against the integrity of the nation” this paves the way for the misuse of this draconian legal provision against any dissent.

Section 150 of the new Bharatiya Nyaya Sanhita Bill details the codes while discussing the acts, which “endanger” the sovereignty, unity, and integrity of India. It states: “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”  This definition is not in any way different to the original one in Indian Penal Code under section 124A  either in letter and spirit.

The explanation of the law appears incomplete. It also brings into its purview the potential to criminalize protests against any action or inaction of the government authority. By using the words ‘subversive activity’ which are not only vague but can be used to restrict democratic activities denouncing the government’s policies and actions. This is a direct attack on the fundamental constitutional rights of the citizens of India. The Constitution of India guarantees the right to protest under Article 19 (1) (b) and is a basic fundamental freedom incorporated by the makers of our constitution which is being demolished with this new section. The dissenting voice and the human rights defenders are both at risk and at stake.

The new criminal bills also introduce new offences with stricter punishment.

Section 111 of the Bharatiya Nyaya Sanhita incorporates a new crime as the ‘Terrorist act’ under general penal law. For dealing with terrorist activities there are special laws like UAPA (Unlawful Activities Prevention Act, 1967). Then why have the features of the UAPA which are in existence now being brought into the new penal provisions presented by the government?

To define terrorist acts it explicitly refers under section 111 (1) (iv), “ to provoke or influence by intimidation the Government or its organization, in such a manner so as to cause or likely to cause death or injury to any public functionary or any person or an act of detaining any person and threatening to kill or injure such person in order to compel the Government to do or abstain from doing any act, or destabilize or destroy the political, economic, or social structures of the country, or create a public emergency or undermine public safety.” This definition is vague as well echoing the same position which exists in the special UAPA provisions. It can be misused by the government authorities to take vengeance against the opposition, human rights workers and dissent voices who raise their opinion against the government.

Whil most of the civilized countries of the world have moved towards abolishing the death penalty in the 21st century, newly introduced crimes like mob lynching under the BNS will attract the death penalty! This from a country that will preside over the 18th G-20 summit next month. Mob lynching and all crimes introduced in accordance with the Optional II protocol of the ICCPR will attract the death penalty.

These three bills denounce the basic concept of the Indian Criminal Jurisprudence i.e., “assume innocence until proven guilty”. The Supreme Court in its various judgments clearly denounces handcuffing and roping (Prem Shankar Shukla vs. Delhi Administration 1980 SCC 526 / Citizens for Democracy vs. State of Assam and others-(1995) 3SCC743) but the present Bharatiya Nagarik Suraksha Sanhita allows the savage act of handcuffing for the arrest of persons in many cases including murder, rape and counterfeit currency.

The manner of introduction of these three bills is also improper. The bills were introduced on the last day of the monsoon session leading to inadequate consultation in Parliament regarding these bills. These new elements related to the judicial process should have been placed before the law commission prior to tabling it before the parliament. By this act, the present government made it clear that they wish to supersede and bypass the legal fraternity and due process of consultative democratic governance.

These changes in the criminal justice administration system can be dubbed as pseudo-progressive change. This act of the present government is a sinister design to communalise the judicial process of the country by Sanskritization the nomenclature of the legal provisions, which is undemocratic and colonial in nature. The present social-economic legal situation of this country demands a democratic change in these legal acts, provisions and procedures.

Therefore, the statement on behalf of MASUM, calls upon every academic, individual, member of political parties, NGOs, CBOs and organizations to come forward and discuss the intended changes for a constructive and democratic discourse on the present legal provisions and protest against the government’s constant attempt to suppress the dissenting voice.

The statement has been signed by Kirity Roy, Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM)



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