Consultative approach

New criminal laws need wider discussion

In the final hours of the recent session of Parliament, the government introduced three Bills that, if passed, will have far-reaching effects on how Indians are governed. The Bills are to replace the rule books for criminal policing in India. They are to be called the Bharatiya Nyaya Sanhita, or BNS, which is meant to replace the Indian Penal Code; the Bharatiya Nagarik Suraksha Sanhita, or BNSS, intended in place of the Code of Criminal Procedure; and the Bharatiya Sakshya Bill, which will supersede the Indian Evidence Act. The first question that many can justifiably ask is why the new names are necessary — and why, even if necessary, they could not be in English. The government’s reply will no doubt be that the entire purpose of the new laws is to decolonise India further, since the older laws were introduced during the Raj. Yet many of these are living laws — constantly modified by representative legislatures and interpreted by an independent India’s judiciary. They are no longer colonial institutions.

The deeper question is what, precisely, the aim of such a complete overhaul might be. Modernisation of the criminal laws is essential, but it can and must be a gradual and consultative process. The introduction of multiple new laws wholesale is subpar from a policy point of view. Open consultation, such as on the recent data privacy Bill, would have helped the government identify pain points that need to be addressed, as well as test the workability of proposed reforms. While the Bills have been sent to a Parliamentary Standing Committee for discussion, the process of law-drafting should have been transparent and open well before that stage. The government has faced setbacks in the past for its failure to take affected groups into confidence while drafting a law. It should thus have been more open. This is particularly true, given the sensitive nature of many of the provisions of the law being replaced. Much attention will be paid to the wording of the section dealing with sedition, for example, to determine whether it becomes even more prone to misuse by political authorities. The addition of sections on “subversive activity” is another example where wide consultation in advance would have ensured that the new laws are both constitutionally defensible and respectful of individual rights, while also updating the criminal code to deal with new-age security threats.

All these changes could, in fact, have more profitably been made by specific amendments discussed openly over the life of this Parliament. This normal process has a great deal to recommend in general, but especially for laws like the penal code. These are living laws, which are used daily by tens of thousands of district lawyers, judges in the lower judiciary, and police officers of all stripes. Changes take some time to percolate down to the grassroots, and so should be publicised and introduced regularly but carefully. The greatest danger of a wholesale replacement of familiar laws is that the adaptation process becomes impossible, and creates an open invitation to mis-governance. The wrong laws will be applied too often, or the right clauses applied incorrectly; and, as a result, justice may be both delayed and denied. This cannot have been intended by the government. It is still not too late to return to a more gradual and consultative form of lawmaking in this case.