While previous sections in the Indian Penal Code (IPC) –Section 153a, 153b, 153c and 505 of the Indian Penal Code (IPC) were found wholly inadequate in identifying and prosecuting the growing corrosive phenomenon, the newly implemented Bharatiya Nyaya Sanhita (BNS) 2023 breaks no new ground.

In fact, the new criminal laws, that were hurriedly rushed through Parliament while 146 Members of Parliament were suspended, with no amendments being discussed not entertained –and no referrals to a Joint Select Committee as is the norm—had been evolved in a secretive fashion by a “Committee” consisting of former Vice Chancellor, National Law University, Delhi (NLUD), Professor Srikrishna Deva Rao, present VC, NLUD, GS Bajpeyi and advocate Mahesh Jethmalani, Rajsya Sabha member, Bharatiya Janata Party (BJP). That such a committee did ignore Supreme Court judgements with clear cut directions on laws for prosecuting hate speech as also the Law Commission’s 267th Report.

The new criminal laws dealing with the subject-matter are simply not sufficient to cope with the menace of ‘Hate Speeches’. Hate/derogatory/inflammatory speech has not been defined in the new Bharatiya Nyaya Sanhita 2023 and neither in any other penal law.

The Black’s Law Dictionary, 9th Edn. defines the expression “hate speech” as under:

“hate speech. —Speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence.”

Hate speech commonly relies on stereotypes about insular groups in order to influence hostile behaviour towards them. Supremacist and outright menacing statements deny that targeted groups have a legitimate right to equal civil treatment and advocate against their equal participation in a democracy. Destructive messages are particularly dangerous when they rely on historically established symbolism, such as burning crosses or swastikas, in order to kindle widely shared prejudices. Messages that are meant to hurt individuals –and incite violence against them –because of their race, ethnicity, national origin, or sexual orientation have a greater social impact than those that attempt to draw out individuals into pugilistic conflicts. Establishing a broad consensus for large-scale harmful actions, such as those carried out by supremacist movements, relies on a form of self-expression that seeks the diminished deliberative participation of groups of the population. Hate speech extols injustices, devalues human worth, glamorises crimes, and seeks out recruits for anti-democratic organisations.

Comparison between BNS 2023 and IPC 1860:

In the absence of specific provisions against the offence of Hate Speech, the prosecution was initiated only through the following provisions referred. Here is the comparison between BNS 2023 and IPC 1860:

Within the BNS, 2023 sections 196(1), and 197 (1) (Ss. 153A and 153B of IPC, 1860) – the sections that deal with hate speech – inserted with provision of “Electronic Communication”.  However the entire newly enacted law –the Sanhita – does not, anywhere, define the tern, Electronic Communication.

Section 196(1) states that “if anyone Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony by words, either spoken or written, or by signs or by visible representations or through electronic communication”, he/she will be punished. Under section 197(1) imputations, assertions prejudicial to national integration by words either spoken or written or by signs or by visible representations or through electronic communication, is/are subject to prosecution under this provision.

A misuse of this provision has already been evident in a case from Shamli, Uttar Pradesh, when someone posting news on an alleged incident of “lynching” was booked under this section. Read here.

Armed Possession not criminalised under BNS:

Critically, Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms finds no place in the BNS 2023. This section was enacted in 2005 by Parliament but was never notified! The Section (amendment of 153AA) however still signifies a crucial change that could have been brought in through BNS but not reflected. The BNS does not seems to be a new approach to the law that addresses present day societal upheavals especially the corrosive crimes of hate speech.

As crucial is the deliberate bypassing by the BNS 2023 of the Law Commission’s 267th Report on Hate Speech:

The Supreme Court of India in Pravasi Bhalai Sangathan vs. Union of India, (2014) 11 SCC 477, directed the Law Commission of India to look into issue of hate speeches being made by politicians and to consider framing guidelines to prevent provocative statements and requested the Commission to examine the issue Hate Speech thoroughly also to define the expression “Hate Speech” and make Recommendations to Parliament to strengthen the Election Commission to curb the menace of “hate speeches” irrespective of whenever made.

The Judgment Can be read here:

On March 23, 2017, the Law Commission of India (Chairman, Former Judge SC, Dr. Justice B.S. Chauhan) was submitted its 267th Report titled “Hate Speech” suggested to then Union Law Minister Ravi Shakar Prasad, amendments to the Indian Penal Code, 1860 and the Code of Procedure Code, 1973 by adding new provisions on ‘Prohibiting incitement to hatred’ following section 153B IPC and ‘Causing fear, alarm, or provocation of violence in certain cases’ following section 505 IPC and accordingly amending the First Schedule of the CrPC.

Despite the recommendation made by the Law Commission, the Union Government ignored the gravity and sensitiveness of the issue of Hate Speech, which is on the rise across country. The ‘Hateful’ and ‘Inflammatory Speech’ leading to violence, riots, promote enmity on grounds of religion and disturbing the long-standing harmony among the citizens.

Proposed new provisions to curb Hate Speech:

With its 267th Report, the Law Commission suggested not just that new provisions in IPC are required to be incorporated but keeping the necessity of amending the penal law, a draft amendment bill, namely, The Criminal Law (Amendment) Bill, 2017 suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases), needs to be added.

Proposed Sections in IPC:

Chapter II – Insertion of new section after section153B.- 

In the Indian Penal Code, (45 of 1860) (hereinafter referred to as the Penal Code), after section 153B, the following section shall be inserted, namely: –

Prohibiting incitement to hatred- “153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

Insertion of new section after section 505.-

In the Penal Code, after section 505, the following section shall be inserted, namely: – Causing fear, alarm, or provocation of violence in certain cases.

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe –

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The Law Commission’s 267th Report can be Read here:

Supreme Court’s concern over Hate speech:

Pertinently, the Supreme Court on various occasions, especially since 2022, has asked government to curb and prevent the incidents of hate speech in public discourse including the electronic and other media. As the existing legal framework is not sufficient to prevent this phenomenon, the Supreme Court has, time and again, issued directions about the absence of offence of Hate Speech in Indian Criminal Law. However, although, the word Hate Speech has not been squarely defined in Indian penal law, India’s Constitutional Courts have discussed this phenomenon, the ingredients of Hate Speech, the nuances and distinctions..

In October 2022, while hearing a petition by journalist Shaheen Abdullah, Justice KM Joseph had slammed the Government that “why is the government remaining a mute spectator” and asked them to bring a law regulating media and hate speech. In Shaheen Abdulla v. Union of India & Ors. [Writ Petition (C) No. 940 of 2022], the division bench of Justice Km Joseph and Justice Hrishikesh Roy, directed the directs Uttar Pradesh, Uttarakhand and Delhi Governments to take suo motu action against hate speech crimes without waiting for formal complaints irrespective of the religion of the offender.

The order can be read here:

The directions issued by the Supreme Court in Shaheen Abdulla (Supra) had been limited to Uttar Pradesh, Delhi and Uttarakhand.

On April 28, 2023, the division bench of Justice KM Joseph and BV Nagarathna in Ashwini Kumar Upadhyay v. Union of India [W.P. (C) No. 943 of 2021], extended its 2022 order and directed all States/UTs to register Suo moto FIR against Hate Speech irrespective of religion. The court added that when any speech or any action takes place which attracts offences such as Section 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law.

The judgement can be read here:

On January, 2023, while hearing a batch of petitions involving hate speech incident and expressing the concerns about the manner in which TV Channels are functioning, the Supreme Court was observed that “offending anchors must be taken off Air, Media should not create division”.

Further, in Amish Devgan v. Union of India (2021) 1 SCC 1, the Supreme Court embarked on a comprehensive review of Indian and foreign decisions on hate speech, and a few academic articles on the subject. Devgan, a television journalist, faced criminal charges under various provisions of the IPC on the basis of his statements referring to a saint in Islam as an “invader, terrorist and robber who had come to India to convert its population to Islam” during a television programme hosted by him. The Court refused to quash the criminal cases against him, which affirmed the adequacy of existing criminal law to recognise hate speech, even if made accidentally or in error, as was claimed by Devgan. The Court observed that hate speech constituted three elements – content, intent, and harm or impact – and that the content of a speech must be coupled with the intent of the speaker to incite or cause harm.

The Judgement can be read here:

In the case of Kaushal Kishore vs. State of Up and Others (2023) 4 SCC 1, clarified that every citizen of India must consciously be restrained in speech, and exercise the right to freedom of speech and expression under Article 19(1)(a) only in the sense that it was intended by the framers of the Constitution, to be exercised. This is the true content of Article 19(1)(a) which does not vest with citizens unbridled liberty to utter statements which are vitriolic, derogatory, unwarranted, have no redeeming purpose and which, in no way amount to a communication of ideas. Article 19(1)(a) vests a multi-faceted right, which protects several species of speech and expression from interference by the State.

However, what is clear is that the right to freedom speech and expression, in plural d democracy does not protect statements made by a citizen, which strike at the dignity of a fellow citizen. Fraternity and equality lie at the very base of our Constitutional culture and upon which the superstructure of rights are built, and these do not permit such rights to be employed in a manner so as to attack the rights of another. If speech, ensuing from persons of political, social or any other authority by their utterance impact the dignity and right to life of a fellow citizen or a depressed section, with also a potential to create circumstances for him/them that are exclusivist or make them prone to violence, this constitutes Hate Speech.

The Judgement can read here:

In the case of Tehseen Poonawala vs. Union of India and Others (2018) 9 SCC 501, the Supreme Court of India discussed preventive, remedial and punitive measures in order to identity and prevent the incidents of hate speeches. The court further recorded that mob vigilantism and mob violence have to be prevented by the governments by taking strict action. That rising intolerance and growing polarisation expressed through incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. The State has a sacrosanct duty to protect its people from unruly elements and perpetrators of vigilantism, with utmost sincerity.

The Judgement can be read here:

Conclusion:

There is no doubt that India’s long standing religious and cultural harmony among the peoples of different beliefs and faith, infected and affected by the hate and inflammatory statements made by politicians and giving rise to mob violence, lynching, harassment etc. Hate Speech has now become a tool and short cut to get publicity and the politicians are instead of curbing the incidents of hate speeches are encouraging the wrongdoers to fulfill their “hateful propaganda”, “destructive messages” and “biased speeches” for vote bank politics at the cost of integrity and harmony of the nation.

All these rich jurisprudential developments have been wilfully ignored by both government and Parliament that hastily passed the 2023 BNS Laws. Instead of addressing the inadequacies of the previous IPC and CrPC, the BNS 2023 makes the prevalent laws even more regressive and police authorities armed with more power.

In the arena of hate speech, BNS 2023 is not just wanting as a set of laws that will ensure prosecution but in fact may harbour in an era that is conducive to the vulnerable victim communities being further targeted and criminalized.

Related:

Towards a Hate Free Nation: Handbook for Police & Administration

New Criminal Laws: Reform or Repression? Insights from Legal Experts

Bharatiya Nyaya Sanhita Bills: Pro-People Reforms or Draconian Changes?

Debating India’s New Criminal Laws: Moving Away from Colonization or Towards Authoritarianism?

The post Modi’s government bypasses SC & Law Commission, no nuanced, strong penal sections on Hate Speech: BNS, 2023 appeared first on SabrangIndia.

While welcoming the statement made by the Home Minister made in a Press Conference on July 1, 2024, clarifying that in the changed criminal procedure code, viz., the BNSS, 2023, the maximum period of police custody under the BNSS would remain 15 days, with provision to be spread over a maximum of two months (Indian Express, July 1, 2024), the PUCL stated that this assurance needs a formal amendment.

The Indian Express had quoted Shah saying that, “I want to clarify that in BNS also, the remand period is 15 days. Earlier, if an accused was sent to police remand and he got himself admitted in a hospital for 15 days, there was no interrogation as his remand period would expire. In BNS, there will be remand for a maximum 15 days, but it can be taken in parts within an upper limit of 60 days”.

Stating that this clarification is “very important” as it clarified whether  police custody can be extended beyond the previously provided maximum 15 days (under CrPC) to a maximum of 60 to 90 days (under the BNSS), the statement issued by the national president and general secretary of PUVL, Kavita Srivastava and K Suresh respectively,  states that “it will be apposite if the clarification is brought about in the provision of sec. 187 (3) BNSS through an amendment to sec. 187 BNSS, so that it is not left to the vagaries of interpretation by courts, the police and Public Prosecutors, in the immediate future.”

Incidentally, the controversy has been generated as the new Section 187 BNSS is literally a verbatim copy of the previous Section 167 CrPC, with the omission of eight words, which gave a totally different interpretation to the new provision on police remand.

Sections 167(2) (a), CrPC, 1973 & Section 187(3), BNSS, 2023

“Provided that

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence….

(3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this sub-section for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more;

(ii) sixty days, where the investigation relates to any other offence…

The import (danger) that lies behind the deletion of eight words from the CrPC on Police Custody

The effect of dropping the eight words from the CrPC, “otherwise than in the custody of the police’, in the new Section 187 (3) of the BNSS, allows for the interpretation that police custody can be extended from a maximum of 15 days under the CrPC to a maximum of 60/90 days under the BNSS.

Any extension of police custody beyond 15 days is a serious incursion in the rule of law and the criminal justice system.  It is well recognised that the period when the accused is kept directly in the custody of the police is the time when maximum pressure from the police is effected – including the reality of the police using extrajudicial measures like physical torture, emotional pressures and other similar measures to break the will of the arrested persons.

It is in recognition of this salutary principle that sec. 167 (2) Proviso of the CrPC provided for a maximum of 15 days of police custody from the time of arrest, after which the arrested person has to mandatorily be kept in judicial custody.

This means that the accused person will have to be lodged in judicial custody in the nearest central prison once the police custody period of 15 days ends. This thereby ensures a measure of protection from the police as the accused person is technically under the oversight of the judiciary, even though they may be in prison. This provision has been recognised by the Supreme Court in several cases to be an elementary part of the rule of law and administration of criminal justice system.

A further feature of the law on the subject is that police remand under u/s 167 of the CrPC cannot be granted at the asking of the police but is a judicial decision taken by the jurisdictional Magistrate who is required to look into the papers including the FIR and the status of investigation and to pass a judicially-reasoned order as to whether the request of the police seeking physical custody of the accused should be granted or not. In any case, the maximum period was limited to 15 days from the time of arrest.

Effect of deletion of words

This very important protection has been totally thrown out through the changes brought about in the law relating to remand, spelt out in sec. 187 of the BNSS. A careful reading of sec. 187 reveals the following:

(i) The bar of maximum of 15 days of police custody within the first 15 days from time of arrest is removed permitting the Magistrate to order police custody for a period of 15 days anytime during the initial 40-60 days of detention (sec. 187(2) BNSS).

We have already expressed our serious apprehensions and opposition to the change highlighted in point

(i) Above through our critique dated 24th June, 2024, as it creates an anomalous situation when an accused person who has been released on bail pursuant to being placed under judicial custody, can be apprehended again under `police custody’. This apart, constant change in nature of police custody and judicial custody can result in violation of fundamental rights of the accused under Art. 19, 21 and 22 of the Constitution.

(ii) The bar of police custody being for a maximum of 15 days has been removed allowing police custody for a period of 60/90 days.

Finally, the PUCL statement concludes by stating that “An oral clarification does not have force of law and hence an amendment is crucial.”

Why the amendment to Section 187 BNSS is crucial

PUCL states that while Shah’s clarification through a statement in the press that the maximum period of `Police Custody’ remains 15 days is very welcome, it is however not sufficient for the following reasons.

–A verbal clarification does not have the force of law.

— Legal interpretation in courts of law will only be based on the actual words and terms used in sec. 187. As pointed out, the courts are bound to consider the fact that the Parliament has consciously omitted the 8 words “…otherwise than in police custody” (which existed in sec. 167(2) Proviso) in new sec. 187(3) BNSS, and therefore interpret that Parliament intended to expand police custody from maximum of 15 days to 60/90 days.

In the light of this recent clarification/statement, that police custody will continue to remain a maximum of 15 days, Shah and Meghwal have been urged, that, “it would be in the fitness of things if an amendment is carried out in sec. 187(3) BNSS, by including the terms which existed in the CrPC, “…otherwise than in police custody” which will make it explicitly clear that the police custody can be only for a maximum of 15 days. Such an amendment will make it abundantly clear that the new Parliament wanted to settle this issue and bring an end to the controversy over maximum length of police custody.

Related:

New Criminal Laws: Future risks for democracy and rights in India

From colony to police state? India’s new criminal laws receive dissent

The post Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister appeared first on SabrangIndia.

Colonial laws and their replacement

The claimed motive behind the soon to be implemented was to remove the repressive and regressive nature of the colonial laws, to make the laws more in connect with the judicial precedents set by the Supreme Court of India, to make India a democratic nation in the full sense while abiding by the Constitution that rules this country.

However, the laws which have been passed, are more repressive and regressive than ever, not in connect with the Supreme Court precedents and forget abiding by the Constitution, they don’t abide to the principles of natural justice or the basic rights any human has.

These totalitarian and draconian laws have sparked concerns all over the country. These laws enable governments of the day (whether at the Union or State levels) to immobilize the practice of democracy by over-broad criminalization of legitimate, non-violent dissent and opposition against the Governments, the ruling parties and the forces that back them. They also, terrorize innocent civilians and honest public servants because they put in the hands of the Government of the day unguided, arbitrary and virtually unlimited power to selectively arrest, detain, prosecute and convict practically anyone they choose, including by branding them as terrorists and as anti-national. Moreover, these laws in effect regularise extraordinary powers which should normally be available only in legitimate states of emergency as already provided in the Constitution. The effect of these laws, as currently approved, is that, once they come into effect, India will no longer be a functioning democracy. (A detailed analysis of the laws can be read here, here and here.)

The opposition to these laws

The members of the West Bengal Bar Council have unanimously resolved to protest against the three new criminal laws by observing 1st July as a Black day for lawyers across West Bengal and Andaman & Nicobar Islands, who would abstain from all judicial work on that day to organise protest rallies.

The resolution can be read here:

The Madras Bar Council has passed a resolution on August 24, 2023 objecting to and expressing anguish over naming the new criminal laws in Hindi. The advocates affiliated to the Madras High Court Advocates Association, the Madras Bar Association, Women Lawyers Association, Bar Association of George Town and Advocates of Chennai City Courts staged a demonstration demanding immediate withdrawal of the new criminal laws.

The Bar Council of India has however, appealed to all Bar Associations to refrain from protests and agitations against new criminal laws. The BCI said that it has received representations from several Bar Associations and State Bar Councils expressing concerns about many provisions of the new laws. Many Bar Associations also signalled their intention to launch agitations against the laws.

The BCI assured the lawyers that the concerns will be conveyed to the Union Home Ministry and the Union Law Ministry. It further requested all Bar Associations and Senior Advocates to specify the new provisions which are regarded as unconstitutional or detrimental.

The BCI Press Release can be read here:

Bar Council of India requests all Bar Associations to refrain from protests against new criminal laws, assures legal fraternity that issues raised about new laws will be taken seriously. pic.twitter.com/eKcbcD6g1w

— Live Law (@LiveLawIndia) June 26, 2024

It is pertinent to note that these laws, have not just sparked concerns between the legal minds of the nations but also all the citizens. Close to 3,000 signatories including Tushar Gandhi, Tanika Sarkar, Henri Tiphagne, Major Gen (retd) Sudhir Vombatkere, Kavita Srivastava, Shabnam Hashmi and several others have sought the urgent intervention of Chief Minister Andhra Pradesh, Chandrababu Naidu in staying ‘anti-democratic’ new criminal laws slated to come into effect from July 1. (The details of the whole story can be read at Sabrang)

The Letter Petition can be read here:

100 retired bureacrats who have served in the top positions in the Union and State government have appealed to the Union government to defer the implementation of the the new criminal laws as well. The letter can be read here.

The implementation of these new criminal laws threatens to transform India into a police state, undermining the very foundation of freedom and democracy that the nation has painstakingly built since gaining independence. These laws do not merely infringe on individual liberties; they stand to reverse the progress made over decades in securing justice and equality for all citizens. By enabling the government to criminalize legitimate, non-violent dissent and opposition, these laws place unprecedented power in the hands of the authorities, allowing them to arbitrarily arrest, detain, prosecute, and convict anyone deemed inconvenient. This level of control is antithetical to the democratic ethos and severely compromises the principles of natural justice and basic human rights.

Moreover, the judiciary, a cornerstone of Indian democracy, is disrespected through the blatant disregard of Supreme Court precedents in these new laws. By sidelining established legal norms and constitutional principles, the new framework erodes the trust and authority of the judicial system. If this trajectory continues, India risks not only derailing its democratic freedoms but also forgoing the myriad achievements it has made in securing a just society. The impending reality of a police state, with unchecked governmental powers, threatens to dismantle the democratic structures and values that have defined the nation since its independence.

Conclusion

The broad opposition to these new criminal laws underscores the deep unease felt by various segments of Indian society. From the legal community, as seen in the unanimous protests by the West Bengal Bar Association and similar objections from the Madras Bar Council, to public intellectuals and retired bureaucrats, the discontent is widespread. Despite assurances from the Bar Council of India that concerns will be communicated to the Union government, the looming implementation date remains a stark reminder of the power dynamics at play. The government’s persistence in moving forward with these laws, despite such robust and diverse opposition, raises fundamental questions about the future of democracy and justice in India. As the clock ticks down to July 1st, the collective anxiety of the nation underscores a profound struggle between authoritarian impulses and the enduring fight for democratic principles.

Related :

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

India’s flawed rape laws: a betrayal of equality

India’s 2023 bad laws: Impact on Individual Freedoms and Indigenous Rights in a weaponised state

New criminal laws portend great danger to democracy, says civil rights activist Teesta Setalvad

3695 citizens’ petition political leaders of India Alliance, several NDA partners: Ensure stay on new ‘anti-democratic’ criminal laws

The post From colony to police state? India’s new criminal laws receive dissent appeared first on SabrangIndia.

The petition has also been sent to Mallikarjun Kharge President, Indian National Congress, Sitaram Yechury Secretary-General, Communist Party of India (Marxist), Arvind Kejrival National Convener, Aam Aadmi Party, D Raja General Secretary, Communist Party of India (CPI) , M. K. Stalin President, Dravida Munnetra Kazhagam (DMK), Dr. Farooq Abdullah President,  Jammu & Kashmir National Conference,  Hemant Soren President, Jharkhand Mukti Morcha (JMM) , Sharad Pawar President, Nationalist Congress Party (Sharadchandra Pawar), . Akhilesh Yadav National President, Samajwadi Party (SP), Uddhav Thackeray President, Shiv Sena (Uddhav Balasaheb Thackeray), G. Devarajan President- All India Forward Bloc, Dipankar Bhattacharya National General Secretary, Communist Party of India (Marxist–Leninist) Liberation, Jose K. Mani Chairman, Kerala Congress (M), Thol. Thirumavalavan President, Viduthalai Chiruthaigal Katchi , Vaiko General Secretary, Marumalarchi Dravida Munnetra Kazhagam (MDMK), Mehbooba Mufti, President, Jammu and Kashmir Peoples Democratic Party (PDP), P. J. Joseph Chairman, Kerala Congress, K.M. Kader Mohideen National President, Indian Union Muslim League, Hanuman Beniwal President, Rashtriya Loktantrik Party, E. R. Eswaran General Secretary, Kongunadu Makkal Desia Katchi, requesting their urgent intervention in staying ‘anti-democratic’ new criminal laws slated to come into effect from July 1.

The petition calls for a Joint Parliamentary Committee (JPC) scrutiny of the hurriedly passed through laws – ‘Bharatiya Nagarik Suraksha Sanhita, 2023’, ‘Bharatiya Nyaya Sanhita, 2023’, and ‘Bharatiya Sakshya Adhiniyam, 2023’ and also urges legal expert consultation, and a meaningful debate on the proposed reforms in parliament.

According to the Petition, the signatories have urged the political parties to seize the chance to steadfastly defend the fundamental values enshrined in the Indian Constitution and would do every effort to protect the democratic rights.

“Sadly, as the situation stands now, there is a grave threat that is hanging over the nation in the form of three new criminal laws, namely, which were hurriedly pushed through Parliament on 20th December 2023 without a debate. “

“These laws are scheduled to come into effect from July 1, 2024…. the major concern is that the amendments made in the then existing laws are such that they are mostly draconian in nature. They deal exclusively with matters of life and liberty and criminal harm that can be caused to an individual in other multiple and various ways.

“They also (adversely affect) deal with civil liberties of citizens more particularly in the matter of freedom of speech, right to assembly, right to associate, right to demonstrate, and their other civil rights, which can be criminalized as part of the law and order provisions of these three laws. “Essentially, these new criminal laws would equip the government with adequate power to hollow out our democracy and transform India into a fascist state – should the government choose to deploy the new laws to their fullest extent.

“The proposed new laws would enable the government to dramatically scale up arrest, detention, prosecution and imprisonment of law abiding democratic opponents, dissidents and activists.

“Some of the chilling features of the new Criminal Code as requiring special attention are:

(1) The criminalisation of legitimate, lawful, non-violent democratic speech or action as ‘terrorism’;

(2) The broadening of the offence of sedition in a new and more vicious avatar (what could be called “sedition-plus”);

(3) The expansion of the potential for “selective prosecution” — targeted, politically-biased prosecution of ideological and political opponents;

(4) The criminalisation of a common mode of political protest against government through fasting;

(5) Encouraging the use of force against any assembly of persons;

(6) Exponentially enhancing ‘police raj’ by criminalising “resisting, refusing, ignoring or disregarding to conform to any direction given by [a police officer]”;

(7) Enhancing handcuffing;

(8) Maximising police custody during investigation;

(9) Making the recording of a FIR discretionary for the police;

(10) Dialling up the pain of imprisonment;

(11) Compelling all persons (even those not accused of any crime) to provide their biometrics to the government; and

(12) Shielding of some of the Sangh Parivar’s activities.

Related:

Ensure stay on new ‘anti-democratic’ criminal laws: 2,900 citizens’ Letter Petition to Chandrababu Naidu

Madras Bar Association urges return to original names of India’s criminal laws: Bharatiya Nyaya Samhita

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The resolution may be read here:

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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 21^st 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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