No Matter What Amit Shah Says, the New Criminal Law Bills Are Not Anti-colonial

While introducing the three criminal law bills in the Lok Sabha on 11 August, Union Home Minister Amit Shah suggested that they are meant to  move away from the “colonial” remnants in our criminal law.

If passed, the Bharatiya Nyaya Sanhita Bill 2023 will replace the Indian Penal Code, The Bharatiya Nagrik Suraksha Sanhita Bill, 2023 will replace The Code Of Criminal Procedure and The Bharatiya Sakshya Bill, 2023 will replace The Indian Evidence Act.

One wonders how the Home Minister and others hailing the anti-colonial nature of these Bills understand the word “colonialism.”

Surely, it is not enough to have a Hindi title for the law—the contents of the law must reflect something non-colonial.

What’s Colonial About Our Current Laws?

Not everything about the existing law is bad. But many offences in the IPC reflect a mindset which was harboured by our colonial masters and cemented in the law they made.

Some offences are dictated by the Victorian morality of a bygone era. For example, it is an offence to circulate “obscene” material or to perform “obscene” acts or songs in a public place.

The definition of “obscenity” is taken straight from a 19th century British judgment called Queen v. Hicklin, which effectively criminalises women’s bodies by viewing them from an inherently male perspective. The Supreme Court has already expressed its disapproval of that definition, terming it an unjust restriction on the freedom of expression guaranteed by the Constitution of India.

Further, some offences assume the inferiority of women by treating them as the property of their husbands. One such offence, “adultery”, was declared unconstitutional by the Supreme Court in 2018. But others remain in the law. For instance, marital rape is exempted from the definition of “rape”, and it is an offence to “take or entice away” a married woman (her consent being immaterial) intending that she have sexual intercourse with a person who is not her husband. Further, instead of criminalising assault and harassment against women per se, they are still linked to outraging their “modesty.”

Our colonial masters were also particularly invested in punishing any speech or act that threatened their position as rulers. They introduced offences like sedition and criminal conspiracy and routinely invoked them against our freedom fighters.

It is worth examining what the BNS does to these facets of the IPC.

What’s Anti-Colonial About the New Bills?

Well, not much. 

The Victorian morality continues. All provisions on obscenity are retained, and so is the provision on enticement of married women. Marital rape continues to be exempted. Assault and harassment of women continues to be linked to their modesty. The offences of blasphemy and defamation are retained verbatim. Nearly all offences against the State are retained. In fact, for some offences, the grounds for arrest have been expanded as compared to IPC.

Particularly interesting is the BNS’ treatment of “sedition”. By a May 2022 order of the Supreme Court, the offence of sedition in the IPC was put in abeyance, i.e., “stayed”. The Home Minister claimed in the Parliament that sedition law is proposed to be “completely repealed” by the BNS. It is this statement that seems to form the basis of the anti-colonial gesture, and is therefore worth examining carefully.

While it is true that there is no express use of the word “sedition” in the BNS, much of the substance of that offence has been imported and widened in Section 150 of the BNS, which carries the marginal note: “Acts endangering sovereignty, unity, and integrity of India”. The existing law criminalises speech exciting “disaffection” (among other things) towards the government established by law in India. The BNS is much wider in scope as, among other things, it makes it criminal to speak something that “excites or attempts to excite… subversive activities”. 

What kind of subversion, one may ask? After all, even peaceful protests are “subversive” in some sense. Another relevant question is: subversion of whom? One could even say that protests by trade unions are “subverting” their employers 

The text of the provision does not limit “subversion” to subversion of the State. This vague phrase has not been defined in the Bill, and it does not have parallels in other laws in India, thereby leaving their meaning open to interpretation by law enforcement.

Even in other respects, the language of Section 150 of the BNS is quite curious. For an act to be punishable under the provision, it needs to be done “purposely” or “knowingly”. But these words give little clarity—they do not mention as to what purpose one is required to have and what one is required to know while saying something that excites a “subversive” activity. 

Further, the provision uses vague and unnecessary catch-all phrases such as “or otherwise” and “or endangers sovereignty or unity and integrity of India,” thereby opening the doors of abuse. 

New Bills Suffer From Colonial High-Handedness

The jurisprudence on speech-related criminal provisions has evolved since 1860, when the IPC was enacted, and 1890, when sedition was introduced. The Supreme Court, relying upon the fundamental right to speech and permissible restrictions thereon, has created restricted frameworks within which such provisions are supposed to operate (see, for instance, Kedar Nath for sedition and Aveek Sarkar for obscenity). The Ministry of Home Affairs missed an opportunity to codify these frameworks in the BNS. 

It is possible, however, that this renaming and widening of the erstwhile provision of sedition has been done with a view to escape the established violence-based framework of sedition laws created by the Supreme Court.

This is so because the phrase “sovereignty and integrity of India” has been used. This phrase is listed as a permissible ground for restricting free speech and has not been authoritatively interpreted by the Supreme Court, thus giving the State an opportunity argue that it does not require a violence-based framework. 

Further, being cognisant of the Supreme Court’s position against the chilling effect caused by the vagueness and strictness of laws criminalising speech, the Ministry of Home Affairs should have taken minimum care to precisely define the terms used in this provision. Instead, in addition to retaining all state-related offences in the BNS, the rechristened “sedition” provision includes language much broader and vaguer than the original offence in the IPC. This indicates that the BNS is hardly a departure from colonialism; in fact, it suffers from a high-handedness akin to that of a coloniser seeking to retain its rule at the cost of civil liberties.

(Saral Minocha is a teacher and lawyer. He thanks Shrutanjaya Bhardwaj for inputs on the piece. This is an opinion piece and the views expressed are the author’s own, The Quint neither endorses them nor is responsible for them.)

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