September 12, 2023
Good morning. In today’s either/view, we discuss whether the Bharatiya Nyaya Sanhita Bill offers ‘true decolonisation’. We also look at the start of the paperless Assembly session in Gujarat, among other news.
📰 FEATURE STORY
Does the Bharatiya Nyaya Sanhita Bill offer ‘true decolonisation’?
If your college assignment showed a Turnitin score of 83%, your professor would have rejected your submission…that, or referred it to the Standing Committee on Home Affairs.
The Bharatiya Nyaya Sanhita, 2023, one of the decolonizing troika of India’s legal system, was introduced in the Lok Sabha on August 11, 2023. The Bill repeals the Indian Penal Code, 1860 (IPC) which is the principal law on criminal offences. With the aim to “decolonise India’s legal system” from laws oriented toward the British administration’s needs, the government has taken up a Herculean task. However, the proposal has been criticised for being hurried and looked at as the Hindi belt’s attempt at ‘re-colonising’ the South in the name of decolonisation.
When Thomas Babington Macaulay came up with the IPC in 1860, it was a veneer of legality to legitimize the culture of command and control necessary to run a colony. When India gained independence, much of this state’s command was still necessary for a diverse nation embroiled in riots, and wars, and still standing on its legs. However, as these colonial laws became outdated, there was a need to revise and align them with contemporary societal values and requirements.
The IPC has been among the least amended laws in India since its 19th-century inception. In contrast, the Constitution, which came into force in 1950, has been amended over 100 times. Following independence, several draconian British-era laws have been criticised over the years including the contentious Article 377, criminalisation of indigenous communities, and adultery. Several bills and laws have been changed due to Supreme Court verdicts.
In a bid to reform the justice system, the Bharatiya Nyaya Sanhita Bill seeks to update and modernize criminal laws to better reflect evolving societal values and democratic aspirations. While it retains several parts of the IPC (thus the 83% plagiarism score), changes include the introduction of offences of organised crime and terrorism, enhancement in penalties for certain existing offences, and introduction of community service as a punishment for certain petty offences. Certain offences under the IPC that have been struck down or read down by courts have been omitted, including adultery and same-sex intercourse.
Other notable inclusions in the draft bill are capital punishment for offences of mob lynching and gang-rapes of minors below 18 years. Speculated to be an attempt to target ‘Love Jihad’, provisions to punish sexual intercourse by deceitful means have also been introduced. Another interesting development in the bill is the facility to try absconding accused persons such as Dawood Ibrahim in absentia (without their presence in court).
The Bill also sets commendable targets for itself such as a 90% conviction rate (the current rate is 57%). It mandates scientific forensic practices in investigation for any crime deserving a punishment of seven years or more.
However, the consensus view in the legal fraternity is that repealing existing laws and replacing them with “new” ones does little to achieve these intended reforms. They believe it comes at the cost of throwing the entire criminal law administration into disarray for years to come. Dravidian leaders have also registered their objections to the law for its Hindi imposition on the southern states among other concerns and called it “recolonisation in the name of decolonisation.”
VIEW: New laws for ‘New
As a policy, it is always advisable to review and update laws periodically to reflect the evolving needs of society and address any shortcomings in the existing legal system. This helps ensure that the laws are fair, relevant, and effective in promoting justice and protecting the rights of individuals. The colonial penal law required replacement even if it lacked any inherent flaws because it lacked participation from the very people for whom it was meant. Thus being an imposition of foreign ideas and values.
The laws that are slated for replacement were made with the intent to safeguard and bolster the British administration, with the primary focus being punishment rather than the delivery of justice. The proposed laws prioritise the protection of its citizens even before the priorities of those who govern. This can also be seen symbolically as the British-era law arranged offences as per the priority of interests of the ruling class and pushed the interests of body and property below the offences against the state and other supportive institutions. But the Nyaya Sanhita Bill has accorded precedence to bodily interests by placing them even before offences against the state.
The provisions of the new bill also shift focus from punishment to the delivery of justice. While punishments will continue to be administered, they are to be reformative (as in the case of community service) or deterrent in nature rather than the retributive needs of the British Raj. The language and structure of the IPC had also become archaic and outdated with time. But more importantly, the IPC itself being a general law had come to be surrounded by volumes of special laws that were required to deal with evolved crimes. Thus, a new simplified and streamlined bill was seen as a necessity for the new times.
COUNTERVIEW: Agendas in the name of change
The Government of India’s Law Commission in June of 2023 had found that colonial legacy is not valid grounds for the repealing of a law. Yet decolonisation has been the prime push for the new bills. Further discrepancies in the government’s intent are also revealed upon a closer look.
While introducing the bill, Union Home Minister Amit Shah said the provision of sedition offences would be completely repealed in the new bill replacing the IPC. However, the new laws only replace the ‘crime’ of sedition with that of subversion giving the state even broader interpretations. The new law represents a resurgence of the colonial-style authoritarian approach in increasing police custody from 15 days to 60 and holding trials without the presence of the accused with no efforts to improve the scope of bail for India’s numerous undertrials. The proposal fails to recognise marital rape with its definition still based on colonial concepts of ‘conjugal rights’. Thus, the new law only appears to colour the existing power imbalances with an Indic flourish to somehow legitimise them.
Shoddy drafting and numerous glaring errors betray a sense of rushed frivolity in the proposal. Numerous sentences have been left hanging and explanations in the bill are incomplete. With a very poor choice of words, the law has made anything, unless done in a state of involuntary intoxication, NOT crime (So you cannot be said to commit a crime until someone else intoxicated you). The opposition claims the move to be one out of fear of the INDIA coalition, thus a rushed Bharatiya name change.
The committee that drafted the bill has also been accused of being highly exclusive in its consultation exercise with biased questionnaires, no transparency, no minority representation and only one woman member. At the current stage at least, the Sanhita appears to be a rearrangement of the IPC than a redraft.
- Decoding the Nyaya Sanhita Bill – The Hindu
- Bharatiya Nyaya Sanhita Bill As A Real Substitute For Indian Penal Code – The Free Press Journal
- Bharatiya Nyaya Sanhita Bill Allows Using Draconian Police Powers For Political Ends – Live Law
- Shoddy Drafting Has Left the Government’s New Criminal Bills With Glaring Errors – The Wire
What is your opinion on this?
(Only subscribers can participate in polls)
a) The Bharatiya Nyaya Sanhita Bill offers a true step towards decolonisation.
b) The Bharatiya Nyaya Sanhita Bill is an eyewash in the name of decolonisation.
🕵️ BEYOND ECHO CHAMBERS
For the Right:
Sanatan Dharma: An Ideology or the Entire Hindu Community?
For the Left:
India’s exceptionally flawless G20 presidency: A pleasant and unexpected triumph
🇮🇳 STATE OF THE STATES
Congress’ campaign for teachers (Uttar Pradesh) – The Congress will launch a campaign focused on teachers in response to the state forming the Uttar Pradesh Education Service Selection Commission (UPESSC). The Congress believes the commission disregards the constitution and will affect teachers since they might no longer have service security. The Congress hopes the campaign will attract the attention of nearly seven lakh teachers in the state.
Why it matters: Last month, the state government got approval for the UPESSC to higher, secondary, and basic education departments in the state. The commission will have a chairperson and 12 members. The government believes this will bring uniformity and transparency in the selection process. Once this commission is functional, other recruitment commissions like the UP Higher Education Education Service Commission and UP Secondary Education Service Selection Board will be dissolved.
Education sector celebrated (Kerala) – The state’s education sector was mentioned three times in the 2023 Global Education Monitoring Report published by UNESCO, particularly about the state’s use of technology in the education sector. The first mention is the School Wiki portal as an international model. The second mention is about the state’s free software policy and the distribution of laptops for students. The third mention is about Kerala’s internet connectivity in schools, the highest in India.
Why it matters: The portal, implemented by KITE, noted that the state was able to develop content for over 15,000 schools on the School Wiki. The SchoolWiki (www.schoolwiki.in) portal is the largest repository of information in any Indian language and has information about school art festival competitions and digital magazines. The use of free software in the education sector has helped the state save ₹3,000 crore.
Vedanta University land tussle (Odisha) – Lawyer and activist Prashant Bhushan demanded the Odisha government return the land that was acquired to set up Vedanta University in Puri district. He said the government should abide by the apex court’s orders and return it to the farmers. He cited the SC’s order that nullified the Odisha High Court’s judgment of land allocation.
Why it matters: The state government bought 8,000 acres of land from 6,000 farmers to set up the university. The Supreme Court said the land acquisition process was rampant with favouritism and violated land acquisition and environmental laws. The court noted the Nuanai and Nala rivers flow through the acquired land, and their control would be handed over to a private company which would violate public trust.
Paperless assembly session (Gujarat) – As the three-day session for the state assembly begins, all 182 MLAs are excited but nervous about it going paperless. Some compared it to sitting for an exam. While previously they had to sift through documents, now all MLAs will have tablets on their desks. They won’t be given any printed documents. So, Bills and resolutions will only be available digitally.
Why it matters: About 70% of the MLAs have never used a tablet so it’ll take some time for everyone to get used to it. For some, the new initiative is a positive step since information will be easily and readily available. The Gujarat assembly is the 10th in the country to go digital. President Draupadi Murmu will inaugurate the Neva project and address legislators on the first day of the House.
CAG report on PM-KISAN yojana (Arunachal Pradesh) – A Comptroller and Auditor General of India (CAG) report has criticised the state over deficiencies while implementing the Pradhan Mantri Kisan Samman Nidhi (PM-KISAN) yojana. The report alleged there wasn’t any alternate method to identify beneficiaries. The report covered the scheme’s implementation from 2019-20 to 2020-21. It stated that with just the self-declaration forms, many who were ineligible received benefits.
Why it matters: The scheme was launched in February 2019 and aimed to provide income support for farmers. Under the scheme, they get ₹6,000 per annum in three equal instalments. When the state implemented the scheme, 373 beneficiaries were registered without being properly verified. ₹46.98 lakh was given to 572 ineligible people.
🔢 KEY NUMBER
1.02 lakh – According to Ministry of Road Transport and Highways data, 1.02 lakh electric vehicles were registered in Karnataka between January 1 and September 7, 2023. It’s the first time the number of EVs has crossed 1 lakh in the state.