New Criminal Laws Are Continuation Of Colonial Logic, Expand Police Powers : Professor Anup Surendranath

President Draupadi Murmu, on December 25, assented to the three new criminal code bills Parliament recently cleared. These new laws, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Sanhita, will replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act of 1872.

Pertinently, one proclaimed objective signalled by the government while introducing these new criminal laws is decolonization.

Thus, to begin with, Professor Anup Surendranath was posed with the question of how these laws would signify a departure from the colonial legacy of our criminal laws.

He replied that it is a very shallow argument to say that what we mean by colonial is that it was enacted during that time. He stressed that when we say something is a colonial law or colonial institution, we need to focus on the relationship between the state and the citizen. He explained further that the colonial state had a certain logic of control and power and used criminal law to control the native population.

Taking his cue from this, the Professor opined that the dynamic has not changed with these new laws passed by the parliament.

“The nature and use of criminal law continues to be to control the population, to expand the scope of operation, very vague provisions, much wider police power and we are not reforming our criminal justice institutions. The criminal justice institutions remain the same and they will continue to function in the same way. In that sense, nothing much has changed. The colonial logic continues. We have re-used and re-purposed the colonial logic even in these new laws. Therefore, the argument of de-colonisation rings rather hollow, according to me.,” Surendranath said told Manu Sebastian, Managing Editor of LiveLaw in the interview.

After being asked if he was saying that except for the change of name, the substantive provisions, more or less, remain the same, the Professor answered in affirmative.

“Yes, the label has changed but the nature of use of criminal law by the state continues to be the same. The criminal justice institutions that will then enforce these criminal laws continues to be the same. There is no fundamental shift in the relationship between the state and the citizen through criminal law… These criminal laws and criminal justice institutions continue to be a legacy of that colonial logic.”

It Was A Tremendous Opportunity To Reform India's Criminal Justice System

Moving ahead with the session, he was asked if, according to him, these bills do not reform the criminal law system. To this, he categorically concurred. He went on to say that reform is the wrong term to use. He added that reforming India's Criminal Justice System was a tremendous opportunity. However, through these laws, there is no reform being delivered. Professor opined.

“Absolutely not. Reform would be a very wrong word to use as far as these laws are concerned. It was a tremendous opportunity to reform India's Criminal Justice System but there is no reform being delivered here, through these laws.”

Potentially Good Changes Vis à Vis Institutional incapacity

While Professor Surendranath agreed that there are positive changes, he also emphasized that none of this is in the nature of overhauling or reform, or decolonization.

Speaking about some of the potentially good changes, he also expressed his concern if the same will be met with corresponding changes in institutional capacity. He welcomed  the provisions mandating audio-video recording of police searches, forensic evidence collection, setting timelines for investigation/trial processes. He added that these changes could have been brought in by amending the existing laws instead of repealing and replacing them with the new laws.

“Are some of those changes potentially good? Yes…While, yes, some of these changes are potentially good it is very scant on detail as to where is the institutional capacity going to come from. While there are changes in the laws, it is not met with a corresponding change in the capacity of institutions.”

Section 150 of the BNS, Which Replaces Sedition, Will Suffer The Same Fate

Moving forward with the session, the Professor was asked about his views on the omission of sedition in the BNS. 

On May 11, 2022, the Top Court ordered that the provision be effectively kept in abeyance until the Union Government reconsiders it. In an interim order, the Court urged the Centre and the State governments to refrain from registering any FIRs under the said provision while it was under re-consideration.

Pursuant to this, on September 12, 2023, the Court referred several petitions, challenging the sedition law (Section 124A of the Indian Penal Code), to a bench of at least 5-judges. While referring, the Court said that even if the new Bill becomes a law, the past cases under Section 124A IPC will not be affected as the new penal law can only apply prospectively.

Against this backdrop, it may be noted that the BNS repealed the sedition law (section 124 A of the Indian Penal Code) and replaced it with a new section, 150, that criminalizes acts that endanger the sovereignty, unity, and integrity of India. As opposed to the new provision, sedition penalised acts against the government.

Speaking about this replacement, the Professor expressed his concerns about the vagueness of the provision and the wide powers it confers to the police. He opined that the new provision would suffer the same fate as sedition.

“If you look at the new provisions, the kind of actions that could potentially be brought under it, they are so vaguely worded that it gives very wide and expansive powers to the police…you have now created a very vague provisions…but there is no guidance to the police office when and where to exercise his and her police power. Therefore, for the common citizen this must be very worrying. It has widened police powers and not restricted or streamlined it in any way…. For that kind of exercise of police powers, I think it will suffer the same fate as sedition. we will not see cases going into trial and getting convictions, the same thing is going to happen but we are going to use this provision arrest people and put them in prison and keep them for a while they batter the criminal justice system.”

Incorporation of Offence of Terrorism in BNS Defies Logic

Another key highlight of the BNS is that it punishes the Terrorist Act. Not only this, but the definition of the Act is exactly the same as the one provided in the Unlawful Activities (Prevention) Act (UAPA), a special legislation. When asked about how these offences in two different statutes can be parallelly applied and lead to misuse, the Professor said,

“This is something that really defies logic….Now, if you have for the same act, you have two different provisions and those laws have very different procedures attached to them…there is no difference in the elements of the offences, it is the same offence. But just on the decision of the SP, I can be goverened either by the procedure under the BNSS or I can be governed under the provisions of UAPA. Now that seems the classic definition of arbitrariness….this is one of the things that immediately, the Supreme Court will have to clarify. Otherwise, it is a very very dangerous situation where you now have, what was meant to be a special law, now is now being made a part of a ordinary criminal law.”

Section 187 of The BNSS, Which Allows Police Custody Beyond 15 Days of Arrest, Is Patently Unconstitutional

It may be noted that Clause 187(2) of the BNSS has attracted scrutiny as it permits police custody at any time during the initial 60 days (for severe offences) or 40 days (for other offences), marking a departure from the corresponding provision (Sub-section (2) of Section 167) in the Code of Criminal Procedure. As per the latter provision, police custody has to be sought within the first fifteen days.

 Further, Clause 187(3) provides that detention in custody can be authorised beyond the period of fifteen days, but omits the phrase 'otherwise than in police custody'; implying that police custody can also be provided in such further period. 

In this context, one must note that even the Parliamentary Standing Committee, in its report, expressed apprehensions about the potential misuse of allowing police custody beyond the first fifteen to 15 days. However, BNSS has retained this provision, thus overlooking such concerns. 

Talking about his views on the same, the Professor said that as per the language used in Section 187, police custody up to 60 or 90 days is entirely permissible. 

“Words of the Provision (Section 187 of the BNSS) clearly allows police custody up to 60 or 90 days, depending upon the offence. There is no escape in that. Yes, the intention might be to say up to 15 days of maximum police custody but you can take those 15 days anywhere between 60 or 90 days, that might be the intention.….We cannot go what the government's intention while drafting is; we have to go by the language…. police custody up to 60 or 90 days is entirely permissible as the provision stands under Section 187 BNSS as of now.”

In this context, at the later stage of the session, the Professor also opined that Section 187 of the BNSS 'is patently unconstitutional.'

Retention Of Death Penalty And Barring Third Parties From Filling Mercy Petitions

BNS retains the death penalty and goes a step ahead by increasing the number of crimes that can attract the death penalty. When asked about whether the statute could have incorporated certain guidelines laid down by the Apex Court when it comes to death penalty cases, the Professor replied in affirmative.

He stated that even the parliament standing committee 'did not provide ringing endorsement' of the death penalty. Instead, the committee stated that there are causes to concern and left the question to the government. He went on to state:

“It is unfortunate that the government continued with its enthusiasm for the death penalty. Not only has the death penalty been retained, applicability of the death penalty has been expanded in the BNS including for gangrape against children below the age of 18…it is quite surprising that many of the concerns that the Supreme Court has addressed as far as fairness in the sentencing procedure is concerned, is not reflected in the BNSS.”

He was further asked about the restrictions in the mercy petitions qua that the third parties are barred from filling the same on behalf of the death convicts. To this, he opined that the provision like this is 'unfathomable'. It is the final opportunity for a death row convict to have the president or governor consider their plea for clemency. He said that this really is an unfair and discriminatory provision against the poor.

“These are provisions that I think that are completely divorced from the reality of our criminal justice system. Who is on death row in India? No rich person is on death row in India. No well-informed, well-educated person who knows their rights is on death row in India. The reason why people do not file appeals or do not file mercy petitions on time is because there is no one to advice them, they are unaware…”

In the end, he stressed the vagueness of these provisions. When does the vagueness breach the constitutional threshold? Professor asked. He went on to state:

“If you look at Section which replaces the Sedition provision, or Section 197(1)(d) on misinformation, the absolute lack of clarity as to what conduct is being criminalised, this cannot meet the constitutional threshold that a criminal law needs to be clear. It needs to be abundantly clear...it should be very clear to the public and to the citizens as to what conduct exactly is being criminalised. If you read these provisions, you will not make out as to what conduct is being criminalised.”