Source – The Hindu

Introduction

With the aim of changing the country’s criminal system, three new bills have been introduced in the Lok Sabha by the Union Home minister. The three Bills are:

• The Bharatiya Nyay Sanhita Bill, 2023, which will replace the Indian Penal Code, 1860 (IPC).
• The Bhartiya Nagrik Suraksha Sanhita Bill, 2023, which will replace the Criminal Procedure Code, 1973 (CrPC).
• The Bharatiya Sakshya Bill, 2023, which will replace the Indian Evidence Act, 1872 (IEA).

What is the Need for Criminal Law Bills?

• Acts such as IPC and IEA have been enacted during the British rule and needs to be updated.
• Advancement in technology has opened new dimensions of investigation of crimes which needs to be implemented in the acts.
• Promoting transparency in the acts by simplifying and streamlining the legal framework.
• As per the recommendations of the 146^th report of the Parliamentary Standing Committee on Home Affairs, there is a need for a review of the criminal justice system of the country.
• 279^th report of the 22^nd Law Commission has recommended a major procedural amendment to CrPC to prevent the alleged misuse of the law.

What are the Proposed Changes in the Criminal Law Bills?

• Proposed Changes in the Bharatiya Nyay Sanhita Bill, 2023:
  • Definition of terrorism, separatism, armed rebellion against the government has been provided in this Bill.
  • It repeals the offense of sedition.
  • It proposes 10 years imprisonment for sexual intercourse with women on false promise of marriage.
  • It introduces community service as a form of punishment for specific crimes.
  • lt fixes a maximum limit of 180 days to file a charge sheet.
• Proposed Changes in the Bhartiya Nagrik Suraksha Sanhita Bill, 2023:
  • Use of technology has been promoted by this bill for trials, appeals and for the recording of depositions.
  • It allows the use of video conferencing for proceedings, and it makes video-recording of statements of survivors of sexual violence compulsory.
  • The bill mandates that police must inform about the status of a complaint in 90 days.
  • Section 41A of the CrPC will be renumbered as Section 35.
  • It empowers magistrates to take cognizance of offenses based on electronic records such as emails, SMSs, WhatsApp messages etc.
  • No appeal shall lie against the President's decision in any court.
  • Mercy petitions in death sentence cases to be filed within 30 days to the Governor and within 60 days to the President.
• Proposed Changes in Bharatiya Sakshya Bill, 2023:
  • The definition of electronic evidence has been provided in this bill.
  • It lays down specific criteria for admissibility of electronic evidence such as authenticity, integrity, reliability etc.
  • Special provisions for admissibility of DNA evidence such as consent, chain of custody have been provided in this bill.
  • Expert opinion has been recognized as a form of evidence.
  • It introduces the presumption of innocence as a fundamental principle of the criminal justice system.

How are Criminal Law Bills and Decolonization Related?

• The bills do very little to decolonize the Indian criminal justice system. They indicate the continuation and intensification of colonial style powers.
• The Bills introduce changes that undermine the rights of individuals while empowering the state.
• Most of the proposed alterations to the bills, such as those related to organized crime, spreading false information that endangers sovereignty, acts that put sovereignty at risk, and terrorist acts, are excessively broad and raise constitutional concerns.
• A decolonized or a post- colonial law would reflect the changed relationship between the citizen and the state, but the bills fail to do so.
• Many of the new offences have already been covered by the existing laws and adding an extra layer of criminalization does nothing except increase police powers.
• A major feature of colonization is suppression in guise of security by giving the executive unchecked police powers. This particular feature is so deeply entrenched that the Indian state has only increased its police powers.
• The Bills, by increasing the length of sentences across the board, as well as broadening police powers, essentially replicate the logic of colonial criminal law.
• The hope of decolonization will remain unfulfilled as the state has not indicated the willingness to audit and reimagine these essential instruments of colonial power.

Conclusion

The idea of decolonization must be seen in opposition to colonization. It is an optimistic approach which creates a relationship between the state and its citizens, with the focus of serving its people. In order to achieve decolonization, it is mandatory to challenge not just the laws but also the institutions that continue colonial legacies.