New criminal laws: Colonial legacy lingers despite changes

The three new criminal laws that have come into force from July 1 and created a ruckus in the Lok Sabha have not dropped the colonial baggage in toto The explanations and illustrations of offences mostly remain a work of copy paste from the old criminal laws and experts admit that barring few changes in chapter numbers sections and quantum of punishments the new criminal laws Bhartiya Nyaya Sanhita Bharatiya Nagirk Suraksha and Bharatiya Sakshya Adhiniyam 2023 is nothing beyond an old wine in a new bottle It is not a complete overhaul as made to believeIdentical wordingsldquoWhile the establishment has gone about town claiming that the new criminal laws are the result of a long drawn exercise to lsquodecolonisersquo the IPC CrPC and the Evidence Act the Opposition leaders have called a spade a spade in their dissent notes attached to the reports of the Parliamentary Standing Committee on Home Affairs which vetted these Bills last year They said that in most places the Bills were identical in language and content to the laws they seek to replace Criminal law experts have also said that 758037 of the new laws are primarily a reproduction of the old laws The the renumbering and rearrangement of sections and clauses will create considerable confusion in the initial phase of implementationrdquo explained Venkatesh Nayak Director Commonwealth Human Rights Initiative CHRI New DelhiVenkatesh Nayak Director CHR Floyd Gracias counsel SC and Dr P Madhava Soma Sundaram criminology professorlsquoDecolonisationrsquo hollowDespite the Home Secretaryrsquos claims that the new bills aim to adapt criminal laws to presentday needs the demand to decriminalise defamatory speech has been ignored While it is a relief that the harsh defamation punishments from the Manu Smriti have not been reintroduced defamation remains a significant issue The Manu Smriti prescribed punishments based on caste with severe penalties for lower castes Although such discriminatory punishments have been abandoned the fact that over twothirds of undertrials in Indian prisons belong to SC ST and OBC communities 2022 Prison Statistics in India NCRB report indicates persistent caste bias in the criminal justice system Whether the new criminal laws will address this systemic problem remains to be seenrdquo Venkatesh addedIPC illustrations retainedThe BNS 2023 retains many of the illustrations and examples from the old law For example the Sections dealing with private defence Sections 96 to 106 in IPC and Sections 34 to 44 in BNS have similar provisions and illustrations showing minimal changes in their core content and applicationControl over dissentldquoThe new criminal laws fail to fully shed their colonial legacy For instance while the offence of sedition has been removed its essence persists in the newly defined ldquooffences against the staterdquo which still penalise acts perceived as threats to national unity and sovereignty reminiscent of colonialera control over dissentrdquo said advocate Mohini Priya advocate on record Supreme Court of IndiaAdvocate Mohini Priya advocate on record SCPotential misuseldquoThe introduction of terrorism definitions raises concerns about potential misuse and insufficient safeguards echoing colonial laws that suppressed opposition While addressing mob lynching and hate crimes the broad discretionary powers and overlapping legal frameworks could result in inconsistent application and abuse Despite some necessary updates these laws retain significant colonial elements and fail to fully break from the pastrdquo said adv MohiniLaw evolvingldquoFirstly the law is everevolving It grows from day to day enhances in scope and develops over some time Secondly Law develops from dynamic changes and evolution of society which gives rise to social change and legal issues that need to be legislated upon Laws also impact society and therefore there is a synergy between the two aspectsrdquo said adv Floyd Gracias a constitutional expert and counsel Supreme Court of IndiardquoldquoThe focus needs to be on the fact that the law has evolved and covers newer crimes deals with issues that the earlier law may not have sufficiently dealt with and punishments have been enhancedrdquo adv Floyd added Criminologist viewsDr P Madhava Soma Sundaram professor criminology department at Manonmaniam Sundaranar University Tamil Nadu said ldquoI am still in the process of doing a comparative study of the old and the new criminal law It took over 25 years to vet the draft and after making numerous revisions and amendments before IPC was finally enforced on January 1 1860 However such serious mammoth drafting and changes have not happened in the newly enacted criminal lawsrdquoCriminal lawyer speaksAdvocate Mubin Solkar a criminal lawyer said ldquoThere is no overhauling of the previous criminal laws Some changes have been made such as the creation of new offences enhancement of punishments repealing of certain offences and some procedural changes But all this could have been done by carrying out amendments to the old statutesrdquoldquoIn fact the impression which was created was that the colonial British era laws were being totally discarded and a more adaptive and pragmatic Indianised version of the criminal laws was being rewritten However the entire exercise appears to be a case of lsquopatching uprdquo adv Mubin addedOld laws that retain similar explanationsgtgt Common intentionIPC Sec 34 reads Acts done by several persons in furtherance of common intentionmdashwhen a criminal act is done by several persons in furtherance of their common intention of all each of such persons is liable for that act in the same manner as if it were done by him alonegtgt Common intentionBhartiya Nyaya Sanhita2023 Section 35 under general exceptionsSame as above when a criminal act is done by several persons in furtherance of their common intention of all each of such persons is liable for that act in the same manner as if it were done by him alonegtgt Culpable homicideIPC Section 299 covers culpable homicide ndash Whoever causes death by doing an act with the intention of causing deathgtgt Culpable homicideBhartiya Nyaya Sanhita2023 Section 100 covers Culpable homicide Whoever causes death by doing an act with the intention of causing deathIllustration and explanations same as given in IPC