OPINION: New criminal law bills have failed to reimagine crime and punishment

They are unlikely to create a more principled criminal law framework

47-Naveed-and-Ayushi Naveed Mehmood Ahmad and Ayushi Sharma

Three colonial-era laws that form the edifice of India’s criminal justice system are all set to be replaced. Unfortunately, the bills that seek to replace them embrace a lot more from the colonial past.

The colonial administration saw Indians as subjects and their policy of criminalisation was rooted in the need to preserve the colonial regime. Post-independence, the underlying context―the nature of the state and the citizen-state relationship―changed. The new bills were tabled on the plank that they would reflect this change and an Indian thought process.

The new bills continue to over-rely on the deterrent capabilities of jail terms; see Indian citizens suspiciously; and, use vague provisions to protect police power.

However, nothing in these bills tells the citizens about their underlying principles. They do not convey what the punishments are expected to achieve in modern India―retribution, reformation or deterrence. They also do not convey what ‘justice’ is in modern India’s criminal justice system.

In fact, the new bills fail to distinguish themselves from their colonial predecessors on many other counts. They continue to over-rely on the deterrent capabilities of jail terms; see Indian citizens suspiciously; and, use vague provisions to protect police power. For instance, the provision on sedition has been replaced by an even more surreptitious provision on endangering the integrity of India.

Even though the Bharatiya Nyaya Sanhita bill aims to advance the cause of ‘justice’ and not punishment, it still leans heavily on Macaulay’s model of using custodial sanctions and death penalty. Most of the punishments from the Indian Penal Code have been retained, punishments for some offences have been made harsher and death penalty has been added for at least four new crimes such as mob lynching, organised crime, terrorism and rape of a minor.

Interestingly, no offence has seen any reduction in punishment. Of course, the inclusion of community service does seem like a step in the right direction. But its application is limited only to a handful of offences, and that too not to the exclusion of jail terms, showing the hesitance to embrace a shift in the penal philosophy.

The new bills presented an opportunity to draft criminal provisions in a simple and accessible way, which could have gone a long way in making them and the criminal justice system citizen-centric. However, they make no effort in this direction and continue to use ambiguous and archaic language.

For instance, in the BNS bill, the offence of promoting enmity between different groups has been imported as it is, with vague phrases like ‘promoting disharmony’. The offence of ‘obscenity’ has also been retained without clarifying what an ‘obscene act’ means. To check fake news, publishing ‘misleading information’ that may jeopardise the sovereignty of India has been criminalised. The definitions of murder and culpable homicide continue to be an enigma.

The BNS bill does not reflect any attempt at decriminalisation. This is odd, considering that it was brought in the backdrop of an ongoing exercise to decriminalise minor offences and rationalise punishments. For instance, while a person can be punished with imprisonment of up to one year for moving a land-mark fixed by a public servant, making a sexually coloured remark also attracts the same punishment. This shows a lack of a principled approach towards crime and punishment.

A complete replacement of the IPC provided an opportunity to reimagine crime and punishment. The new bills have failed to use the opportunity.

The authors are with Vidhi Centre for Legal Policy. Views are personal.