What the government needs is a change in its mindset. The enactment of the three new criminal laws made effective from July 1, 2024 suggests that this government’s mindset is far more damaging than that of our colonial masters.

I would have thought after almost 75 years of the making of our Republic, especially in the context of Supreme Court’s iconic judgements on the importance of our freedoms, the government would have rationalised our criminal laws in tune with contemporary liberal thoughts.

Instead, the new criminal laws have expanded police powers and rather than getting rid of the colonial legacy, perpetuated it. Prior to independence, the Code of Criminal Procedure allowed the police to arrest a person based on suspicion and keep him in custody for 15 days from the date of arrest subject, of course, to the orders of the magistrate.

This was a unique anti-democratic provision that the colonial masters used to imprison, threaten, extract confessions and strike terror in the minds of people. In no other country in the democratic world is there a criminal law with comparable provision.

If this government really wanted a change and unburden itself from the legacy of such provisions, it would have deleted the very concept of police custody of 15 days after arrest.

The new Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), instead stipulates that the 15-day police custody will not be counted from the date of arrest, but can be spread over 40 days, where a chargesheet is to be filed within 60 days.

Where the chargesheet is to be filed within 90 days, it can be spread over 60 days. The added caveat is that such a procedure will not disentitle the accused to move for a bail. We all know that in the midst of an investigation, no judge and I mean ‘no judge’ will ever grant bail.

So the consequence is that the fate of a person arrested is sealed for at least 60 or 90 days, during which he will not be granted bail, even if ultimately it is found that there is no case against him.

The other major change in the new code is that a police officer anywhere in India is entitled to arrest a person, even if the offence is committed outside his jurisdiction. That is not all.

Such a police officer can investigate an alleged offence and upon its completion, will have to file a charge sheet before the magistrate within whose jurisdiction the offence was committed.

Simply said, an offence in Uttar Pradesh can be investigated by the Gujarat police and upon investigation, the charge sheet will be filed before the magistrate in Uttar Pradesh. This violates the federal principle enshrined in our Constitution.

Given this government’s mindset, they will direct the police to investigate offences all over the country and target who they want. This is anathema to any acceptable principle of criminal jurisprudence.

Let’s now move on to the Bharatiya Nyaya Sanhita, 2023 (BNS). Some of its provisions also display this government’s feudal and autocratic mindset. Under section 152, a person is liable to imprisonment for life or a term that may be extended to 7 years if he “by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India”.

Such words that cannot define particular acts are obviously liable to be misused. This covers print media, electronic media, hoardings and all other forms of expression. I can’t imagine how this government is proclaiming that by making these changes, it is getting rid of colonial legacy. 

Even worse are provisions that define a terrorist act. Under section 113, any person who does an act “with the intent to threaten or likely to threaten the unity, integrity or economic security of India, to cause loss or damage or destruction of property or disrupting services or supplies essential to the life of the community, seeks to overawe by show of criminal force or attempts to do so or causes death of any public functionary will be charged for having committed a terrorist act”.

A person who voluntarily harbours or conceals any person who has committed such an act is also liable to be punished. I guess, bandhs organised that might disrupt supplies, damage public property in the course of public outrage, and attempts to thwart arbitrary acts will also be regarded as terrorist acts.

Therefore, a farmer’s protest resulting in damage to public property would be regarded as a terrorist act and those voluntarily harbouring such protesters are also liable to be imprisoned for not less than 3 years.

Another provision reflective of the mindset of this government is section 111, which defines organised crime and refers to “continuing unlawful activity including an economic offence involving breach of trust or forgery or a scheme of defrauding persons or a bank or a financial institution for monetary benefit if carried out by 2 or more people”.

Such activity might result in a possible punishment of death or imprisonment for life. This section only applies to people against whom a charge sheet relating to similar offences has been filed in the preceding 10 years and in which the court has taken cognisance.

These are some more significant examples of the manner in which and the mindset with which these laws have been drafted. The problem is with the implementation of such laws, which have a broad arbitrary brush, by police officers who may, subject to their subjective satisfaction, randomly arrest and exploit people.

Ironically, many of the provisions of the BNS overlap with those of other special laws like the UAPA.

It is unfortunate that the home minister, without involving and ascertaining the views of eminent legal minds, has pushed through these laws. We have seen, in the last 10 years, how some other legislations have been used to target those who are perceived to be critical of the present establishment. The quicker these laws are shelved, the better it is for my countrymen.