New criminal code raises red flags for civil liberties

BNS provisions regarding sedition-like offences may bolster authoritarianism; say experts

While the Bharatiya Nyaya Sanhita (BNS) aims to modernise India's criminal code, it raises significant concerns about its potential impact on civil liberties and democratic values. Its provisions regarding sedition-like offenses may inadvertently bolster authoritarian tendencies within the state apparatus, reminiscent of the power structures from the colonial era. As Frantz Fanon highlighted, post-independence nations frequently perpetuate and replicate colonial power structures-the sedition-like provision in the BNS illustrate this phenomenon. In a nation grappling with maintaining its standing in the global democracy index and reconciling its democratic ideals with intricate social realities, the implementation of such laws could hinder progress toward a more inclusive and equitable society - says Arun Kumar PK, social science researcher (formerly at JNU, Delhi), based in Kerala.

mid-day had in its article titled 'Draconian provisions of sedition continue in spirit in Nyaya Sanhita' dated July 13, highlighted experts' concern that while the word sedition was missing in the new law, its provisions have been retained with enhanced quantum of punishment.

Arun Kumar PK, social science researcher (formerly at JNU, Delhi), based in Kerala

Post colonial reinterpretation

While the government has asserted that the BNS represents a decolonisation of the Indian Penal Code (IPC), it is in fact a post-colonial reinterpretation of the old law. This is exemplified by Section 152 of the BNS, which exhibits vague language and a sweeping range of offences, revealing a resemblance to colonial-era strategies of stifling dissent through the exercise of power.

"The challenges posed by Section 152 raise doubts about the very essence of India's democratic nature and civil liberties. This law, preserving remnants of the colonial era, is inconsistent with the democratic values of independent India," said Arun.

Potential misuse

He added, "Section 152 of the BNS, with its ambiguous language and broad scope of offences, reflects colonial-era power tactics that aimed to suppress dissent. This is particularly problematic when viewed through the lens of India's social context and the historical tendency of excessive power usage by the government and the police."

"As a country with a landscape marked by social, religious, and regional tensions, India is vulnerable to the potential misuse of these newly introduced provisions. The ambiguous terminology in the BNS, such as ‘subversive activities' and acts that endanger sovereignty, could be broadly interpreted to suppress legitimate expressions of disagreement and dissent. The state could use this as a powerful tool to silence voices it deems threatening to its political interests," Arun said.

"This potential for misuse is not without precedent in India's legal history. Regardless of the ruling party, India's history shows traces of legal tools being misused to maintain power and control in the society. Laws like the Unlawful Activities (Prevention) Act (UAPA) and the previous sedition law have been criticised for their misuse against activists, journalists, and opposition voices," he said.

Civil liberties

The implications of this expanded legal framework are particularly concerning when considered alongside India's existing law enforcement culture. This expanded legal framework, coupled with India's existing law enforcement culture, creates a potentially perilous combination of civil liberties.

The Indian policing system, infamous for its atrocious behavior and attacks on individual rights - a legacy of its colonial past - tends to prioritise maintaining order to protect individual liberties. The ambiguity in the new law could empower law enforcement to interpret dissent as a threat to national integrity, potentially leading to increased arrests and prolonged detention.

Dissent as means to voice

"The potential consequences of this law extend beyond just law enforcement practices. In an era of social media and rapid information dissemination, the ‘anti-national' tag has become popular and is often used against political enemies. The ambiguous wording in the law provides an easy path for the legal framework to apply this label. Fear of being branded "anti-national" or facing severe penalties could lead to self-censorship, particularly among marginaliaed communities and minority groups, who often use dissent as a means to voice their concerns and demand rights. This could have a chilling effect on free speech," said Arun.

Striking balance

While the BNS aims to modernise India's criminal code, it raises significant concerns about its potential impact on civil liberties and democratic values. Its provisions regarding sedition-like offenses may inadvertently bolster authoritarian tendencies within the state apparatus, reminiscent of the power structures from the colonial era.

In a nation grappling with maintaining its standing in the global democracy index and reconciling its democratic ideals with intricate social realities, the implementation of such laws could hinder progress toward a more inclusive and equitable society.