The latest twist in the criminal law reform tale is that the three Bills introduced by the Union government in the Lok Sabha in August 2023 to replace respectively the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act were unexpectedly withdrawn on December 9, 2023 and replaced in short order by revised second drafts which were tabled by the Union home minister on December 12, 2023 in the Lok Sabha.

The August 2023 first drafts of the three Bills had drawn wide public outrage as an assault on our democracy. The Wire carried a detailed analysis of the Bills. The August 2023 first drafts were reviewed by the Parliamentary Standing Committee which published a report on them on November 10, 2023, hailing and approving them. Reflecting the extremely poor quality and the alarming nature of the Bills, even the BJP-led Parliamentary Standing Committee was constrained to recommend a slew of changes. The Committee went to the extent of cautiously expressing mild concern about the vagueness of crucial definitions in the drafts (see here for an analysis of the recommendations of the committee).

The fundamental objection to the first draft of the Bills is not removed by the second draft. The character of the Bills remains fundamentally anti-democratic. The bulk of changes made by the second drafts of the three Bills are almost entirely editorial and inconsequential in nature, often simply correcting quite embarrassing errors. A few modifications proposed in the second draft are, however, noteworthy. Five key changes made to the first draft of the Bills are briefly discussed here — discussion of the unchanged portions of the first draft of the Bills is not repeated.

Terrorism [Clause 113, second draft of Bharatiya Nyaya Samhita (BNS)]

The most important change made by the second draft of BNS, which will replace the Indian Penal Code, is that the Union government has entirely pulled back from the first draft’s frightening expansion of the crime of terrorism beyond the existing definition in the Unlawful Activities (Prevention) Act, 1967 (UAPA). The UAPA, itself famously draconian, defines as terrorist any act “with intent to threaten or likely to threaten the unity, integrity, security economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country”.

In contrast, the definition in the first BNS draft included as terrorism extremely vague acts such as “intimidating the general public or a segment thereof”, “disturbing public order”, “creating an atmosphere or spreading a message of fear”; “destabilising or destroying the political, economic, or social structures of the country”, or “creating a public emergency or undermining public safety”. Under the first BNS draft, these acts would be terrorist acts even if they are in the form of mere non-violent speech that does not involve the commission of any crime. Each of these vague formulations has the potential to be abused to lock up virtually anyone by converting legitimate public discourse into ‘terrorism’.

The second draft of BNS withdraws the definition of a terrorist act in the first draft and entirely adopts the UAPA definition (except on one relatively minor point of detail: UAPA includes in terrorism the “production or smuggling or circulation only of high quality counterfeit Indian paper currency, coin or of any other material” whereas the second BNS draft widens this definition to cover the same activities with respect to any counterfeit Indian paper currency, coin or of any other material). Contrary to erroneous media reports, threatening ‘economic security’ and ‘sovereignty’ of the country have not been introduced into the definition of terrorism for the first time in the second BNS draft — they are part of the existing UAPA definition of terrorism and have now been included in BNS as part of its adoption of the UAPA definition. The second draft of BNS also changes the punishment for ‘terrorism which results in death’ from life imprisonment without parole to life imprisonment as provided in UAPA (i.e., without ruling out parole).

While the modifications to the BNS definition of terrorism are welcome, it is disappointing that the government refused to drop the terrorism offence altogether from BNS as it is already covered under UAPA. With this new BNS provision, the government will now have a double-barrelled weapon to prosecute and imprison terrorism under two statutes – a special law (UAPA) with some wafer-thin ‘procedural safeguards’ and the other a general law (BNS) without even that fig leaf. We may fully expect that the government will be firing from both barrels at political and ideological dissenters. BNS provides unguided power to the police to choose the statute under which investigation and prosecution of alleged terrorism will take place (UAPA vs BNS). Given that one statute (UAPA) has some safeguards and a special court and the other (BNS) does not, this in itself creates an opportunity for potential rent-seeking and corruption on the exercise of this extraordinary police discretion. No justification has been provided for the need to maintain the offence of terrorism in two separate statutes.

Petty organised crime (Clause 112, second draft of BNS)

Another potent weapon to be misused against non-violent dissent lay in the vague definition of “petty organised crime” in the first BNS draft under which any crime that causes general feelings of insecurity among citizens relating to thirteen enumerated acts and “other common forms of organised crime committed by organised criminal groups or gangs” was criminalised. The government has pulled back on this open-ended definition and replaced it in the second draft with a more circumscribed definition:

“Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.”

Punishments [Clause 4, Second draft of Bharatiya Nagarik Suraksha Adhiniyam (BNSS)]

In the second BNS draft, the government dropped the earlier proposal that life imprisonment in all cases shall be “imprisonment for remainder of a person’s natural life”. This does not mean, however, that the government has ‘got religion’ on the need to move from imprisonment to a more humane and rational approach to dealing with crime – on the contrary, the drafts are still anchored in an ancient and feudal philosophy of harsh punishment.

The second BNS draft clarifies punishment for ‘culpable homicide not amounting to murder’ which had not been clearly drafted in the first draft. Under the revised version, causing death by any rash or negligent act not amounting to culpable homicide will be punishable by five years’ imprisonment, reduced from seven years.

The offence ‘causing death by rash and negligent driving of a vehicle, not amounting to culpable homicide’, will have an aggravated punishment of ten years if the driver fails to report it to a police officer or a Magistrate soon after the incident.

The second draft of the BNSS offers this definition of the new community service punishment which was missing in the first draft: “Work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration”. This definition is not enough to ensure that punishment through forced community service is not arbitrary, is free of caste and gender bias and class prejudice and is free of any taint of corruption. The close involvement of social workers and probation officers is essential to ensure that the punishment of community service is administered with restorative rather than punitive intent.

Mental unsoundness

The first drafts of the Bills wrongly substituted the Indian Penal Code, Criminal Procedure Code and Evidence Act concept of “mental unsoundness” with the term “mental illness” without noticing the critical distinction between these two concepts. This error has been rectified in the second draft of all three Bills.

Use of electronic technology

The draft Bills clearly indicate a lack of clarity and understanding about the use of electronic means in criminal justice. The second BNSS draft, for example, deletes various proceedings that were authorised to be conducted electronically in the first draft without explaining the need for the change.

Some key recommendations not accepted

The Union government has surprisingly rejected the socially conservative recommendation of the Parliamentary Standing Committee that adultery be maintained as a gender-neutral crime. This is, of course, welcome. However, given the strong support this recommendation may have amongst the core constituencies of the government, it may well be re-introduced in future through a further amendment.

The Standing Committee’s recommendations that (i) non-consensual sexual acts covered by IPC Section 377 should continue to be criminalised; (ii) grounds must be provided by the Executive for commutation of sentences; as well as (iii) a special provision be included to protect healthcare workers; should have been, but were not, accepted in the second drafts.

The fundamental character of the Bills

The Bills weaponise the police and the criminal justice system to give the political leadership at all levels – centre, state and local – even greater opportunity to abuse the criminal justice system for political gain through selective, targeted and politically biased prosecution against ideological and political rivals. For this, the Bills create and maintain high-sounding but vaguely worded and easily abused offences such as “terrorism”; “organised crime”; endangering “sovereignty, unity and integrity of India”; and what we may call “sedition plus”.

The Bills scale up police powers and discretion in a number of areas to be used for prosecuting these vague crimes. Violating well-established judicial standards, the Bills dilute the legal obligation of the police to file FIRs and register cases by providing police the option to conduct a preliminary inquiry before registering an FIR in certain cases. They empower police officers to choose the law (UAPA or BNS) under which a person should be prosecuted for alleged terrorist acts. They criminalise refusal to obey orders of the police (which is in addition to existing crimes on disobeying orders of public officials in general). They increase the scope of police custody some six-fold from a maximum of 15 days to up to 90 days.

To expand the surveillance state, the Bills mandate the provision of biometrics by those who are not accused but are arrested in a case (enhancing the incentive for arresting a person who is sought to be surveilled).

Violating long-standing judicial standards, the Bills escalate handcuffing not only during arrest but also during production in court. Unsurprisingly, at the recommendation of the Parliamentary Standing Committee, ‘economic offenders’ have been removed from the initial list of suspects and accused suggested for enhanced handcuffing.

On the other hand, there is no real effort in the Bills to enhance police accountability to the people. At a time when the judiciary is all too often unable to protect citizens from false, malicious and selective prosecution and prolonged incarceration, often even without proper charges, these Bills are a recipe for enhancing repression in our country.

Rather than strengthening criminal justice administration, the Bills primarily serve political aims. The obdurate and xenophobic refusal to add to the Bills a name in English legible to non-Hindi-speaking Indians, while retaining the Sanskrit names of the Bills for use with the Hindi and vernacular versions of the laws, serves useful political campaign purposes. The Bills create a shield for the Sangh parivar by de-criminalising the carrying of weapons – including lathis – in mass drills and processions, as well as by avoiding explicit mention of religious hatred as a ground for the crime of lynching [clause 103(2), BNS] or for grievous hurt inflicted by a group [clause 117(4), BNS].

Like many other historic pieces of legislation, these three pivotal laws that will deeply affect the lives of all Indians will also be rushed through parliament with the explicit aim of avoiding any meaningful debate or genuine discussion on them. This is hardly surprising. Laws that battle democracy cannot be enacted in a truly democratic manner.

(G. Mohan Gopal is an advocate in the Supreme Court of India and a legal academician. Courtesy: The Wire.)