Written by : Tanisha Vijayvergiya ( B.A.LL.B- 4th Year) , Lovely Professional University
As we know most of the Indian laws were formulated at the time of British rule when the
colonials used to rule over India. On 15 August 1947, India became free from British rule and
formulated its own Indian Constitution which came into existence on 26th January 1950. After
the formulation of the Indian Constitution, criminal laws were also taken into consideration
during the year 1950 and with the aim of consolidating and modernizing the Indian Legal
system, significant changes were made to the Indian Criminal Laws. These laws were
extensively revised in 1950 with an aim to reflect the social, cultural, and political changes that
have occurred in India and to align the law with the country’s newly adopted Constitution. The
changes included redefining and reclassifying various offences, eliminating outdated or
discriminatory provisions, harmonizing the various legal principles, promoting a system that
would uphold the rule of law and protect individual rights, as well as introducing new
provisions to address emerging legal issues.
With this, I would like to draw attention towards the recent news highlights i.e., the Union
Home Minister Amit Shah introduced three bills to repeal and replace the Indian Penal Code,
1860 with the Bharatiya Nyaya Sanhita Bill, the Criminal Procedure Code, 1973 with Bharatiya
Nagarik Suraksha Bill, and the Indian Evidence Act, 1872 with Bharatiya Sakshya Bill.
During the presentation of Bills in the Lok Sabha, the Union Minister stated the reason for
repealing and replacing the laws i.e., removing the references to the British Monarchy and
other ‘signs of Slavery’ and these laws were made to strengthen the colonial rule, to protect the
colonial rulers, and the intention was to give punishment and not to give justice.”
Was the reasoning given by the Union Minister up to the mark? In my opinion, the reasoning
is not valid enough because, As I mentioned above as well that after the formulation of the
Indian Constitution, the criminal laws were extensively revised and the changes took place on
the ground of addressing the emerging legal issues. Though changes are required to be made
in the laws as per the needs of society, the given reasoning for the same is not up to the mark.
Therefore, the phrases ‘sign of slavery’ and ‘British Monarchy’ used as the reasoning are not justiciable.
While considering the changes proposed in the new legislatures, a total of 313 changes have
been proposed by Union Minister Amit Shah. Does all the changes are up to the mark? Let us
see.
As everybody knows the Indian Criminal Justice System favours the accused because it states
the fixed standard of proof for conviction i.e., until and unless the alleged charges are not
proven “Beyond the reasonable doubt” against the accused, he cannot be held liable for any
offence as ‘1000 culprits can escape, but, one innocent should not be punished’. But, in the
Bharatiya Sahita Bill, this fixed standard of proof has been changed to ‘clear and convincing
evidence’ which is not even defined under the respective Act or anywhere else. The ambiguous
phrase has been added which will create a lot of problems while examining the accused. Apart
from this, in the Bharatiya Nagrik Suraksha Bill, a category of offence is added i.e., ‘Social
welfare offence’. By the name, one can understand that social welfare means the growth or
development of the society but, what kind of offences will fall into the same? It is not defined.
This is also showing the full-fledged ambiguity.
We are aware of the fact that ‘anything confessed before the police officials or authorities does
not fall into the ambit of Confession’ because it can be a reason or give birth to new crimes
custodial death, forceful or false confession or will be the violation of the maxim ‘innocent until
proven guilty.' But Section 27A of the Bharatiya Sakshya Bill allows the confession made
before the police officials or authorities which will save the criminals from the punishments
and harm the poor innocent.
If we read Section 69 of the Bharatiya Nyaya Sanhita Bill, states about sexual intercourse with
women by making false promises of marriage employment or promotion. Now, referring to the
IPC 1860 was framed as per the situation and condition of the 19th century as during those
days, crimes were used to committed by men against women, the vice-versa was not the
situation. Therefore, those gender-biased laws are understandable but this is the 21st century,
where the vice-versa situation has also existed. For instance, on 4th December 2022, a
newspaper headline was ‘Four women rape a man in Jalandhar: Gender neutral laws are
crying need of the hour’. Still, these new proposed laws are gender biased and show an outdated
nature and procedure.
These are not enough yet. The Bhartiya Nagrik Suraksha Bill expanded the authorities and
powers of police officials with regard to arrests, seizures, detentions etc. In the case of D.K
Basu v State of West Bengal’, the Supreme Court had given 11 guidelines with respect to arrest
and detention but the commission didn’t consider the same while drafting the new bill.
Basically, the guidelines of the Supreme Court are ignored by the commission while granting
wide powers to police officials.
So, here, if we see the conclusion then out of 313 proposed changes, some of the changes are
acceptable in nature but most of the changes are ambiguous, outdated, lacking consistency and
violative of Human Rights because these bills are drafted by the Criminal Law Reform
Commission, 2023 which is made up of a 5-member committee headed by Prof. Ranbir Singh.
This commission does not include any representative of the Bar Council of India, Judges of the
Supreme Court or any retired or former judges of the Supreme Court who have the experience.
Even the committee did not take any suggestions from the public. When in the formation of
UCC (Uniform Civil Code) the suggestion of the public is asked by the legislature but not in
these laws just because UCC is based on religious issues and these bills are General in nature
but both are governing the people only so, ‘Does it show any intelligible differentia?’. We have
a concept of green paper and white paper for the sake of public opinion but the same was
ignored by the commission. If we consider the Indian Constitution, 1950 then when the draft
was prepared by Dr B.R Ambedkar, a total of 8 months were given to the public for giving their
suggestion, advice or proposed any amendment into the Indian Constitution. When the drafter
of Grundnorm can consider the opinion of the public, why can’t this bill require the opinion
of the public? Apart from this, why there is a need for new laws only? They can bring a new
amendment and make as many changes as required. Even the 42nd Amendment of the Indian
Constitution, of 1976 brought a lot of changes and therefore, it is also known as the Mini
Constitution. Hence, a good reform can be welcomed by society but those reforms are actually
ambiguous, not as per the needs of society should not be taken into consideration.