Bharatiya Nyaya Sanhita and Bharatiya Nagarik Suraksha Sanhita – Class Justice rendered draconian

Everything that this government does is packaged in high-sounding jargon. We have the government's high-sounding "zero-tolerance" towards corruption going hand in hand with a refusal to even initiate commissions of enquiry into large-scale corruption charges against ministers and government functionaries. It lives in a perpetual state of denial regarding corruption. Even the obvious quid pro quo seen in the electoral bonds scheme (scam) is not investigated and no one is indicted. Ergo, a clean government with zero-corruption? Similarly, we find that this government which is infamous for its high-handedness and double-speak invokes the decolonization trope in order to justify its variety of authoritarian rule. As with the other moves of the government, the fascist danger looms large with the change in the rules of the game being brought about in the name of having a Bharatiya rule-based order. The government has enacted three pompously named Bharatiya laws – The Bharatiya Nyaya Sanhita, 2023; The Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023 replacing the Indian Penal Code, The Criminal Procedure Code and the Indian Evidence Act respectively. They have been put into effect from the 1st of July, 2024. The Bharatiyata of these laws is as much Bharatiya as glorification of sati is Bharatiya decolonization or anti-muslim rhetoric and the Ram Janmbhumi movement is Bharatiya renaissance as the RSS and its cohorts make it out to be. The BJP government's Home Minister uses these high-sounding and hypocritical words to describe the changes – "The soul of these laws is justice—they are not oriented towards penalising anyone but to ensure justice for all. The old British-era laws were enacted not for the citizens of this country but for the security of British rule. They were aimed at protecting the treasury, the railways, the safety of the British crown. The old laws were in fact enacted after 1857, to suppress any more revolts against the British rule." This comes from the party of bulldozer babas who go on a bulldozing spree with scant regard for judicial niceties. So just renaming the penal code as "nyaya" sanhita ensures justice for all. Experts aver that around 80 to 90 per cent of the old IPC has been retained for good except for changing the section or clause numbers. The old laws were for the "safety of the British crown" and so out goes the sedition law from the Bhartiya Nyaya Sanhita only to be brought back to cover a wider range of acts "endangering the sovereignty, unity and integrity of India" whose definition remains vague and subject to varying interpretation. Who do the masters think they are fooling? Not content with this for the safety of fascistic measures it has also added terrorism as an offence, something which was not there in the earlier IPC and draconian special laws are already there for dealing with it. Including this in the quotidian penal lawbook says much as to the intent of our lawmakers. It also includes in its ambit "economic security and its disruption", which at a future date can also be brought up against say workers strikes or project-affected people's agitations should the government deem it so. When we discuss the BNSS we will see how its implementation does not follow the procedural checks and balances and adds to the arbitrariness of law and its authoritarian use. As in the case of the BNS, the BNSS retains much of what was in the CrPC 1973 except for the change in the number of the various sections. What hypocrisy in calling it a freedom from the colonial mindset! This, when more draconian laws are framed for the safety of a rule whose ideal remains the establishment of a fascist state or a Hindu Rashtra. A movement which is revanchist to its core which goes about punishing minorities especially Muslims for the presumed misdeeds of Muslim rulers of yore can only come up with laws that are retributive to its core - the very language of the leaders of the party of the government reeks of retribution (mark the hypocritical words of the home minister – "not for penalising anyone etc."). The NSA goes about lecturing police service probationers about the purported dangers of the "war front" shifting within civil society and why is it so. It is only because the increasingly repressive state apparatus senses increased dissent and this is not to be tolerated but curbed by a heavy hand and for that, the supposed enemies are to be identified before they commit the purported crime. The Union Home Minister goes about praising the framing of the new laws as being "victim-centric" and we would laud the candour of the minister for when the "victim" or the plaintiff is the state it indeed is victim-centric. Look at the plight of some of the specially targeted prisoners charged under the UAPA. They are incarcerated without the benefit of bail for years showing how the process becomes punishment with the judicial system working in tandem with the executive to ensure it. There have been instances when judgments of the apex court can be seen to be validating something like "thought crime" (See et+nwj] October 2022 ). It is small wonder that the highest judge of the land, the Chief Justice of the Supreme Court goes on to call the changes a watershed moment for our society – lauding the framing of the laws for the protection of victim interests and carrying out of the investigation into crimes and prosecution of offences efficiently! This he says "have transitioned India's legal framework on criminal justice into the new age". Perhaps the Chief Justice thinks the validation of the use of digital forms – video recording and video conferencing and other such technological upgradation as the transitioning into the new age! Technological solutions are offered in India as an antidote to all sorts of problems whether it be corruption or administration of justice. Instead of delving into the social context which has seen drastic attacks on democratic rights, and the impunity of lawbreakers wreaking havoc on minorities or toilers, the most honourable Judge perhaps sees the 'new age' in terms of use of technology. The problems associated with deep fakes and a state which is quite adept in frame-ups as it appears in numerous instances from the Bhima Koregaon case to the Delhi riots case moving to the digital world with all its stark pitfalls can lead not only to the gross miscarriage of justice but also to punitive measures appearing as genuine. Lawyers have already shown concern over cross-examination of witnesses becoming difficult with the use of stealth technology to prompt witnesses while answering inconvenient questions during trials through video conferencing. Similarly, the question of timeline for procedures has to be seen in the context of current practice too. Does the police adhere to the requirement of submission of case diary or charge sheet within 90 days as laid down in Section 167(2) of the Cr. P.C. 1973? What about the inability to frame charges even after years of incarceration under UAPA? To our honourables everything is hunky-dory and the time-honored traditions of injustice are just so much honourable as the judicial system itself. What conditions have been fulfilled to ensure the timeline for procedures mandated in the new law would be maintained? Where does the change come from? So much for the praise of the Chief Justice and other legal luminaries. Apart from this, provisions that have come for praise are the introduction of community service as punishment and summary trials for petty crimes. While no one has any quarrel with speedy trials for petty crimes, punishment with "community service" can be interpreted to mean anything from leniency traditionally shown to the high and mighty to humiliating and scarring "community service" being imposed upon those accused of petty crime. It is more to be feared in a caste-ridden society with its class divide for we should remember that those accused of petty crime are mostly poor (see data below). We find class justice here in all its nakedness. The BNS has come in for praise for the inclusion of offences of mob lynching. Who is it who gave a spurt to mob lynching? How were ordinary Muslims with absolutely no criminal record lynched? It is with the coming into power of this regime that Akhlaque was killed for supposedly having beef in his fridge. We all know how Jayant Sinha then a Union Minister in Modi's ministry feted some mob lynchers and garlanded them. How can we take these out of context when discussing law? Does law operate in a vacuum? Or is the lynching law part of the modern version of noblesse oblige? 'I protect lynchers who swear by my creed (de facto) so I must make a law against lynching as part of my obligation (de jure)' The phrasing of the section on lynching is open to interpretation for the ground of religion is not explicitly mentioned here: " (Section)103. (2)When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine." The sheer hypocrisy of it all is nauseating, to say the least. Look at the sedition law as mentioned above. The punishment now for "acts endangering India's sovereignty" etc. has been increased to seven years to life from 4 years. Compared with the IPC the BNS has enhanced punishment for many of the offences. What does this enhanced punishment period show? A lack of desire to punish? Isn't this retributive justice to the core? There is hardly a veneer here and yet BNS comes for praise by the Chief Justice and editors of journals and newspapers. The Tartuffes live on. The British Raj redux? We all know how the police lorded over the populace here during colonial times. It was said the presence of a 'lal topi' was enough to ensure the submission of the populace. But that could not and did not prevent the masses from asserting themselves in various ways in order to gain independence. That the powers that be should think that they can force the people into submission is an illusion they share with all the despotic regimes that have reigned. Even the spiritual despots have not been able to cower the assertive masses into submission despite instilling the fear of God in the oppressed. Let us deal with some of the new sections. As we said the IPC did not have any section against terrorism. But the new law has provisions against what it calls terrorism and defines it as such, to begin with – "Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India ----" (Section 113 of BNS) This section is reinforced by the accursed sedition law brought in another name which makes the scope of apprehending those who are thought to be a threat to the powers that be wider. This is the section on "Act endangering sovereignty, unity and integrity of India" – "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 means, 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. Explanation.––Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section." (Section 152) This is a very broad definition and from experience in very many similar cases, we can say that the state will use it to frame up cases against its opponents. The law on terrorism overlaps with the already existing UAPA and state laws like MCOCA. So the said accused would be under the jurisdiction of two different policing agencies – the state police under BNS and perhaps the NIA under UAPA. Apart from that bail would be extremely difficult because of some of the conditionality laid down in BNSS. This is when trials for terrorism under UAPA have mostly led to acquittals and very few convictions. (Less than 3 per cent conviction rate as per PUCL report). This would ensure the strengthening of standard practice adopted these days – the process as punishment. A state bent on going the fascist way can only behave in this manner. The farce of it would even put Kafka's The Trial into the shade. One can see the sheer hypocrisy of the decolonisation trope of BNS. If the intentions were otherwise one would have expected a more humane law. The law retains the provision of solitary confinement inherited from the British Raj though the Supreme Court has held it to be against the fundamental rights enshrined in our Constitution. The Law Commission had also recommended doing away with it. "The IPC permitted solitary confinement for offences that are penalised with rigorous imprisonment. Such offences include criminal conspiracy, sexual harassment, kidnapping or abducting to murder. The BNS retains these provisions. The Prisons Act, 1894, which also permits solitary confinement, has been adopted by many state laws. Such clauses on solitary confinement are not in line with Court rulings and expert recommendations. The Supreme Court (1979) has held that measures such as pushing prisoners into solitary cells deprive them of their right to life and liberty under Article 21. In 1971, the Law Commission recommended removing solitary confinement from the IPC. It observed that such confinement is out of tune with modern thinking and should not exist as a punishment for any criminal court to enforce. In 1978, the Supreme Court recognised the Law Commission’s recommendation and held that solitary confinement must be enforced only in exceptional cases." (PRS legislative research) This tendency towards framing harsher laws and strengthening the hands of the police to the detriment of the rights of the accused and even the aggrieved victims is also to be found in the Bhartiya Nyaya Suraksha Sanhita (BNSS). A change of names and section numbers does not make for decolonisation. The IPC and The CrPC saw amendments from time to time through the democratic struggles of the masses which found a reflection in the way some of the laws were interpreted or controverted by the higher judiciary. But a harsher regime with greater powers to the police brings back images of the British Raj. We find the same with the BNSS, the new pretentious name for the Criminal Procedure Code framed by the British but which underwent changes in 1973. From there we again find a regression. Bharatiya Nagarik Suraksha Sanhita The ground on which BNSS is being praised is that it is victim-centric. This assertion makes it appear as if the law is on the side of the aggrieved. Looking at the greater reality and the NCRB figures we can find that class bias of law in class society which ostensibly rests on equal rights. Look at the profile of the undertrial prisoners in India, which class do they belong to? An overwhelming majority of them come from indigent backgrounds. Another section which finds itself behind bars frequently is that of those who speak on behalf of the poor. Often on the basis of trumped-up charges. As such lauding the new law as victim-centric is to hide the real intent of the law. Let us remind ourselves that one of the stated objectives of the CrPC 1973 was to protect the 'rights' of the accused. From that said objective to the stated present one only goes to show that class power has flexed its muscles to assert itself. In one of its judgments the Supreme Court observed: “It is a matter of experience that in many cases where the persons are accused of minor offences punishable for not more than three years, the proceedings are kept pending for years. If they are poor and helpless, they languish in jails for long periods either because there is no one to bail them out or because there is no one to think of them.” (Common Cause v. Union of India; 1996) "In 1978, 54 per cent of India's inmate population consisted of undertrials. By 2017, this figure rose to 68 per cent. What has also not changed is the socio-economic profile of undertrial prisoners - a majority of them continue to be young, barely literate and poor" (Poor, young and illiterate: Why most Indian prisoners fight long lonely battles for justice, India Today; April 5, 2022) In 2021, under-trials constituted 77% of the total prisoners in India.   Approximately 30% of under-trial prisoners were in detention for a year or more.  About 8% of under-trial prisoners were in detention for three years or more. (PRS legislative research) The figures are stark and detailed in a document released by the Central Jail, Govt of NCT of Delhi. Here are some of the data – "The majority segment of prisoners which is around 77.425%, comes from the lower income strata of society where the monthly income does not exceed Rs.8000/- p.m. thus establishing the linkage between poverty and criminality. Around 42.62% of the prison population comprises of people who earn an annual income below Rs.50,000/- at the time of their arrest." (Demographic details of prisoners) Shakespeare had already remarked - "Plate sin with gold, And the strong lance of justice hurtless breaks; Arm it in rags, a pigmy's straw does pierce it." (From 'King Lear') It is the poor – the workers and other toilers who stand to be the accused as Brecht's " The Exception and the rule" so pithily dramatises.

As for the new laws being victim-centric, let us examine some of the provisions which have rightfully drawn flak from jurists. Here we move from the BNS to the procedural part of administering the law. The Bhartiya Nyaya Suraksha Sanhita (BNSS) has replaced the Criminal Procedure Code, 1973. Let it be known that the CrPC was amended in 1973 to bring it in line with some of the emerging consensus regarding the rights of the accused. As Menaka Guruswamy, a senior advocate at the Supreme Court and legal commentator writes that she has always held the CrPC as the "accused's constitution." In making the law supposedly victim-centric there is a system of "zero FIRs" which has been lauded by the state authorities (Section 173. (1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given— (i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it; (ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it nd the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf: -----). This has come in for criticism by legal commentators as there is an apprehension of zero-FIRs being misused to harass people. The institution of zero-FIRs is purportedly to ensure there is no refusal to register an FIR because of jurisdictional issues. This has not much meaning when we find that Section 173 (3) almost nullifies it by allowing the police to decide whether a prima facie case exists within 14 days and then proceed with the investigation if it is satisfied that there indeed exists a prima facie case. This is the case when the crime being reported is "punishable for three years or more but less than seven years". This almost nullifies Section 154 of the CrPC 1973 which simply states that ''every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.'' The above-mentioned clause of BNSS is in contravention of the Supreme Court judgment of 2013 in the Lalita Kumari versus the State of Uttar Pradesh case. The Supreme Court has been stressing this in many of its judgments. The rulings hold that the Police has to register an FIR without delay.

The changes brought about by the BNSS in this case confers arbitrary powers on the police and we are well aware of the prejudices and arbitrariness of the police state machinery. The Police are not known to be people-friendly and definitely not in the case of the poor and those who speak for the poor. As such this section which makes the law police-friendly is perversely being called victim-centric. As we remarked it is victim-centric when the state purports itself to be the victim. Miscarriages of law are common in this society, it will be rendered further unjust because of the powers given to the police and also lead to more corruption.

The changes brought about in the Criminal Procedure Code in its new avatar (BNSS) make things difficult for the accused and confer further powers on the police. We find that it allows up to 15 days of police custody. The police has been given the right to use it in parts during the initial 40 or 60 days of judicial custody. This can lead to denial of bail during the entire period of 40 or 60 days. (Section 187.2) It puts the accused at a disadvantage and can lead to unnecessary harassment at the hands of the police machinery.

The arbitrary powers given to the police get enhanced when we find that the provision for trials in absentia is also there in the BNSS (Section 356). This again gives rise to legitimate fears regarding its use to get convictions without the accused being granted the benefit of a hearing. It contravenes the right of fair trial which has been recognised as a human right. The principle that the accused is innocent unless proven guilty is prejudiced here in this case. Moreover, this further gives the police arbitrary powers. The police have not been known to work with a commitment except in cases where the government gets especially interested or where a pecuniary gain for the concerned police official is involved. The police might just fail in its duty to bring the accused to court due to laxity or by design. Article 243 of the CrPC did not confer any such privilege on the police. Trials in absentia can lead to grave miscarriages of justice. As for the law being made victim-centric let us remember that the highest Court of the land had in its various judgments already enshrined the principle that the victim had a right to be heard in all stages of the trial. This can be said to be victim-centric. But if victim-centric means doing away with the rights of the accused then we can say that there is no provision for a fair trial.

The Supreme Court has been time and again saying bail not jail is the norm. But in practice what do we find? The opposite. Now the practice seems to have entered the law book with the removal of the provision of statutory bail if the accused is booked under more than one offence. The CrPC had the provision that the accused could be granted statutory bail if he or she had served at least half of the maximum sentence prescribed for the offence (Section 436 A of CrPC). This shows the vindictive nature of the new law and the intention to take harsh punitive action. Is this the "new age" that the Chief Justice spoke of? The provision for handcuffing arrested persons again shows this attitude of the government of the day. Section 43(3) of the BNSS says: "The police officer may, keeping in view the nature and gravity of the offence, use handcuff while making the arrest of a person or while producing such person before the court who is a habitual or repeat offender, or who escaped from custody, or who has committed offence of organised crime, terrorist act, drug related crime, or illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins and currency-notes, human trafficking, sexual offence against children, or offence against the State." This clause goes against the guidelines of the National Human Rights Commission and also the rulings of the Supreme Court. This again shows the type of "new age" which we are entering into, one of a harsh legal regime in line with the extra-judicial practices of the government which is authoritarian to the core.

Chief Justice D.Y. Chandrachud's appraisal of the new laws as having "transitioned India’s legal framework on criminal justice into the new age" was interpreted by us to mean technological upgradation only. If anything the letter and spirit of the new laws have been made harsher and contravene many of the rulings of the Supreme Court itself as we have noted above. This preoccupation with technological upgradation can also be seen in the provision for forensic examination in the BNSS (Section 176.3): "The Bill mandates forensic investigation for offences punishable with at least seven years of imprisonment.  In such cases, forensic experts will visit crime scenes to collect forensic evidence and record the process on mobile phone or any other electronic device.  If a state does not have forensics facility, it shall utilise such facility in another state." (summary by PRS legislative research) It is well known that there is a dearth of forensic labs in our country and as such fulfilling this requirement might delay the trial. While there is nothing wrong with it in theory, the actual state of affairs in our country with its lack of such infrastructure goes against the spirit of timely justice. We have seen that justice here is class justice and the new laws keep alive the hoary tradition of "समरथ को नहीं दोष गोसाईं ". This tradition goes against the grain of democratic values. A party of the far-right with conservatism as its creed cannot but abide by this tradition. It was always class justice as we have pointed out above and as is borne out by data. This class justice has been made more assertive as is to be expected of a party weaned on fascist values and bent on subverting the rights of the people. The law has been made more drastic and as such the rights of the poor and those speaking on behalf of the poor have been whittled down, as noted above. As the judiciary too plays along we cannot but be reminded of Premchand writing in colonial times in his classic short story "Namak ka Daroga" – ‘‘न्याय और विद्वता, लंबी-चौड़ी उपाधियां, बड़ी-बड़ी दाढ़ियां, ढीले चोगे एक भी सच्चे आदर का पात्र नहीं है।’’ And when the masses come to cognise this, when they can see the class (bourgeois) essence of the new laws, when they can see the underlying mechanism of holding down the workers and the toilers and those who speak on their behalf they will arise as they had arisen during the British Raj. No Rowlatt Act, no IPC could hold them back and neither will the BNS and the BNSS be able to contain mass anger. That day justice would be done and the ultimate arbiter of social change, class struggle would have pronounced its judgment.