Editorial
WILL THE NEW LAWS TRANSFORM JUSTICE SYSTEM?
Or Will the Cure Be Worse Than the Disease?
Dear Readers,
This issue of your journal tries to make sense of the three new criminal laws enacted to 'decolonise' and 'overhaul' our criminal justice system. Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) have replaced the age-old Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and the Indian Evidence Act respectively. On the face of it, Indianising the colonial-era Acts appears laudable but are the new laws able to fulfil their purpose? We try to unravel this in the following pages.
In a nutshell, the new laws introduce several innovative procedures such as time-bound completion of trials, online and zero FIRs, and expansion of offences like terrorism, gang rape and deceitful sexual intercourse. Community service will now be a lighter form of punishment and forensic sciences will be reinforced. Their main criticism has been around expanded police powers and restriction of civil liberties. While the first-time provisions will have to pass the test of time, they need to be studied thoroughly as the devil is always in the details.
Common Cause also needs to follow the new laws for its ongoing and future PILs. We have repeatedly pointed out legal lacunae and legislative vacuums in areas of citizenship rights and the integrity of anticorruption agencies. It was natural for us, therefore, to examine the laws not only for our fellow citizens but also against our own experiences and expectations. Let me recount some of the obvious problems with the new provisions which concern our day-to-day work..
We were happy to note that something as undemocratic as sedition has been removed from the new statutes. We at Common Cause believe that a civilised society should have no place for stifling dissent in the name of national security or arresting those who criticise or question government policies. This is precisely why we have challenged sedition through our PILs. However, we were shocked to read the full text in which only the label of sedition has been removed while its core provisions have not only been retained but also made, absurdly, more severe and stringent.
Common Cause also brings out the Status of Policing in India Reports (SPIR) on the powers and performance of the police. We were duly concerned that the BNSS removes the limit of 15-day police remand and blurs the line between police and judicial custody which ends up increasing the possibilities of torture and custodial violence (this also happens to be the theme of the next SPIR due in the next few weeks). It is disheartening that the mandatory enquiry in cases of abuse and atrocities by the police can now be done by any magistrate instead of the judicial magistrate earlier.
It is perplexing that the laws were pushed through parliament without proper debate or contestation after 146 opposition MPs were suspended from the House. The Opposition later called the exercise a "cut and paste job" as large portions of the older laws have been repeated verbatim. While the discussions must continue, it is to be seen if the new laws bring a transformative shift or if the cure turns out to be worse than the disease.
As always, your views, comments and suggestions are welcome. Please write to us at contact@commoncauseindia.in
Vipul Mudgal
Editor
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