Naveen Talawar
Introduction
For a long time, the criminal justice system in India has been believed to need further reforms so that it could align with contemporary societal values and international standards. Recently, India tried to reform its criminal laws through Bharatiya Nyay Sanhita (BNS), Bhartiya Nagrik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA). But the said proposed changes have sparked a range of opinions as far as demand for justice and civil liberties in the country is concerned. Even though proponents of the legislation claim that it enhances positive changes, there are also skeptics who express concerns about potential draconian measures.
The new laws, although labeled as reforms, are according to legal experts largely based on provisions of their colonial-era counterparts. A renowned criminal lawyer Rebecca John demonstrated skepticism about the proposed changes that is evident when she referred to them as “old wine in a new bottle.” She was concerned with the change of section numbers and believed it would lead some lawyers and judges into considerable difficulties.
This article seeks to critically analyze the loopholes in the recently made criminal laws and make recommendations for reforms towards addressing issues raised by concerns relating to civil liberty and the process of law. The emphasis is thereby made on identifying areas where the proposed legislation may fall short in bringing about meaningful reform and ensuring alignment with contemporary values.
Expanded Detention Powers: A Blow to Civil Liberties
One of the most alarming aspects of the BNSS is the substantial expansion of the permissible duration of police custody under Section 187. The shift from a maximum of 15 days to either 60 or 90 days, depending on the offense, raises concerns about potential abuses of power. This significant extension increases the risk of police excesses, coerced confessions, and the fabrication of evidence. This shift towards bringing provisions previously included only in ‘special laws’ warns of an increased spread of police powers, undermining the very foundations on which civil rights protection is based.
Human rights lawyer Colin Gonsalves pointed out that “The laws enacted by this government are 10 times more draconian,” and takes a step backward in terms of protecting individual liberties. Further, he stated that “During the British period, you could keep a person in police custody for a maximum of 15 days. Now, extending 15 days to 90 days and more, is a shocking provision enabling police torture.”
Involuntary Intoxication Defense
‘Involuntary intoxication’ under IPC was a common defense that reduced sentencing if the accused had been intoxicated against their knowledge or will. However, Section 23 of the Bharatiya Nyay Sanhita introduced a controversial change. It states, ‘in cases where an act done is not an offense unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.
The use of “unless” instead of “provided that” alters the defense which suggests that voluntary intoxication might be a valid defense unless it’s involuntary. This blurs the line between voluntary and involuntary intoxication, potentially shielding voluntarily intoxicated individuals from criminal liability. The provision has stirred debate over its departure from the traditional understanding of the involuntary intoxication defense.
Neglect of Technological Advancements
One of the biggest flaws one can point out with reference to Bharatiya Sakshya Adhiniyam is its lack in provisions that address emerging technologies like facial recognition. In an era where facial recognition technology is becoming integral to criminal investigations globally, the absence of any mention in the Bharatiya Sakshya Adhiniyam is a conspicuous oversight. The failure to account for technological advances in evidence gathering leaves a significant gap between the proposed laws and the ground realities of law enforcement.
Lack of Clarity in Terrorism Offenses
The new penal statute in India blends special offenses like “terrorism” into ordinary law without the safeguards present in specific laws, such as the Unlawful Activities (Prevention) Act (UAPA). Unlike the UAPA, the new statutes lack prerequisites like government sanction and independent evidence examination, raising concerns of potential misuse. This may result in legal complexities, with different courts reaching diverse conclusions on the same set of facts and evidence.
Experts fear that police might opt for ordinary criminal law to avoid safeguards, granting them unchecked discretion. Bharat Chugh, a former judge at Delhi’s criminal courts and Supreme Court lawyer said- “This gives the police officers unchecked discretion to pick one law over the other, or in many cases, invoke both laws. This will lead to a multiplicity of litigation and sometimes, different courts arriving at different conclusions on the same set of facts/evidence.”
Redefining Sedition
Although the new penal code does not use the term ‘sedition’, experts claim that it adopts a more draconian version through ambiguous language. Actions that cause danger to sovereignty or unity and integrity of India are now leading to serious consequences, which may be illegitimately used against journalists; activists and dissenters.
Suggestions for Improvement
To address these issues and enhance the credibility of the new legislations, the following suggestions are proposed:
Strengthening Safeguards in Detention: To address concerns regarding the extended period of police custody, a better balanced approach may be required and could incorporate some judicial oversight or periodic review for prolonged detention period to prevent potential misuse and safeguard individual rights.
Integration of Technological Advances: New technologies, like facial recognition technology help to boost efficiency and reliability during criminal proceedings. Lawmakers should aim at introducing provisions that enable changing the nature of evidence but also ensure the preservation of privacy and due process rights.
Safeguarding fundamental Rights: The most important area which needs improvement is the implementation of strong safeguards for preserving fundamental rights and to prevent law enforcement agencies from abusing their powers. Suitable provisions should be incorporated to safeguard the freedoms of individuals from being tortured, incarcerated arbitrarily or discriminated against.
Promoting Public Participation and Transparency: To promote transparency and accountability in lawmaking, civil society organizations should be involved together with legal experts. Public consultations and debates in Parliament should be encouraged to make the laws as accurately represent such diversity of views, interests and aspirations.
Conclusion
In conclusion, while India’s recent attempts at legal reform through the Bharatiya Nyay Sanhita, Bhartiya Nagrik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam have stirred both hope and concern, several critical areas require attention. The expansion of detention powers, ambiguity in terrorism offenses, redefined sedition laws, and the neglect of technological advancements highlight the need for careful scrutiny and refinement. In order to protect civil liberties, maintain fairness and satisfy modern values there is an urgent need for revised changes that focus on safeguards, transparency, and respect for fundamental freedoms in the criminal justice system of this country.