The Indian government of Prime Minister Narendra Modi has made innovative but devious attempts to introduce draconian legislation and vindicate the three new criminal justice bills (that have since become law) on the ground that the existing legislation was “colonial”, thereby justifying the move with the implication that what was being replaced was anti-Indian. But a comparison with the old legislation shows that the new laws are regressive and far harsher compared to even pre-independence British legislation. The new laws replace the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act of 1872. They have been passed by Parliament in the absence of 140 MPs from the Opposition, who have been suspended.

To assume that all laws made by the British were anti-people and anti-human rights would perhaps be a mistake, particularly in the realm of criminal jurisprudence. The British developed certain principles of criminal law that have stood the test of time and that is the reason why after independence many of the existing criminal law statutes were adopted by the Indian Parliament. A study of how criminal law protection deteriorated over time from the British period to modern India would show that law-making today in India has taken a sharp turn towards very repressive frameworks designed to crush already existing freedoms. The three newly enacted statutes are a case in point.

Criminal law is not just the words of a statute but are words impregnated with judicial interpretation. When those laws are replaced mechanically and casually, all the extensive body of jurisprudence tends to disappear with the statute. The history of the legal battles is then done away with by the erratic decision of a lawmaker to change the law. Finally, as in the present case, there is a more sinister underlying reason for this casual change in the law. It is to destroy what is good in the past and confuse the present. What is perceptible is the government’s intention to destroy the fabric of human rights protection in India and to increase the power of the government to control and oppress the people of India.

Repackaging sedition law

Take the sedition law engraved in section 124A IPC which begins with the words, “Whosoever by words…” Sedition punished free speech. It was designed to criminalise dissent, especially non-violent dissent. Under British rule, strong words used against the Crown were by themselves enough to attract the charge of sedition and long years of punishment in jail. In 1968, this was expected to change, when a constitution bench of the Supreme Court delivered its decision in Kedarnath’s case, and while disagreeing with the Privy Council said that mere words no matter how harsh, without any accompanying violence would not attract the charge of sedition. Insurrectionary violence against the State coupled with words of incitement were necessary to bring home the charge. Despite this decision, hundreds of prosecutions of journalists, students, activists and others continued. This is why, a year ago, the Supreme Court stayed all prosecutions for sedition.

So, what does this government do? It removes the use of the word sedition. It then repackages the old section (offences against the State, section 152) leaving the beginning intact and starting with the words, “Whoever …by words…” Thus, even if violent acts did not follow, words alone would constitute the offence.

Stifling of dissent

Freedom of speech and expression is a very powerful protection given in Article 19(1)(a) of the Constitution. In the 1989 judgement S. Rangarajan vs. Jagjivan Ram involving “Ore Oru Gramathile”, a film banned for criticising caste-based reservations, the Supreme Court noted that “freedom of expression cannot be suppressed on account of threat of demonstration and procession or threats of violence.” The bench wrote in the judgement that “The State cannot prevent open discussion and open expression, however hateful to its policies." The real danger to public interest, according to the court “springs not from the public screening of the movie, but from State-imposed restrictions on freedom of expression on indefensible grounds.” Therefore, the most draconian part of the new laws is the stifling of speech and dissent.

Under British law, the maximum period after arrest where an accused could be kept in police custody was 15 days. It is in police lockups that torture occurs. Even the British understood that if torture was to be curtailed, police custody was to be kept to the minimum. Now the government proposes to introduce an indigenous law extending police custody to 90 days. No other country in the world has such a terrifying provision.

Understanding that the period immediately after arrest was utilised by the police to torture, the Supreme Court in the DK Basu case (D.K.Basu vs West Bengal of 1996) laid down basic requirements to be followed in cases of arrest or detention. According to the guidelines issued, on arrest, the police were required to prepare a memorandum of arrest, giving the place and time of arrest and this memo was to be signed by the arrestee. This was because it was common practice for the police to arrest a person, torture them for days and then show the accused as arrested later, so that any injuries on the body would appear to be sustained pre-arrest. Secondly, the arrestee was to be examined in a public hospital every 48 hours and a medical record prepared. The memo of arrest and the medical record were to be sent along with the FIR to the magistrate within 24 hours of the arrest. The court guidelines were to be displayed in every police station. These guidelines are not to be found in the new laws. The new laws are therefore torture-enabling legislation.

To control the tendency of the police to not accept complaints from the public and to refuse to register FIRs in respect of serious offences, particularly against powerful people, the Supreme Court in a five-judge bench decision in the Lalita Kumari case (Lalita Kumari vs UP govt of 2013) made the registration of First Information Reports mandatory. The court said the FIR must be registered immediately and rejected the excuse that the FIR was not registered because the police were conducting a preliminary inquiry. In the new law, the government has, contrary to the Supreme court decision, made the conducting of a preliminary inquiry the normal rule. 

Finally, the provision in the Unlawful Activities Prevention Act regarding terrorism has been transplanted into general criminal law. One wonders why the duplication. The reason is not hard to find. The terrorism law universally condemned as draconian had two safeguards that curtailed the powers of the Investigating Officer. First, the IO after collecting evidence had to get a sanction from the government and could not proceed with prosecution in the absence thereof. Secondly, an independent expert was appointed as an ‘Authority’ under the Act, to assess the evidence gathered and make a report as to whether the terrorism prosecution should proceed. Unless these two safeguards were implemented fully, the trial could not proceed. Both these safeguards do not exist in the new statutes drafted. As a result, there is now a severe statute in place, without the two safeguards, which makes the new law doubly draconian.  

(The author is a senior advocate in the Supreme Court of India and founder of the Human Rights Law Network. Views are personal. By special arrangement with The Billion Press)