Experts argue 75–80 per cent of new laws mirror old ones
New criminal laws fail to fully decolonise, say experts
The three new criminal laws that have come into force from July 1 and created a ruckus in the Lok Sabha have not dropped the colonial baggage in toto. The explanations and illustrations of offences mostly remain a work of copy paste from the old criminal laws and experts admit that, barring few changes in chapter numbers, sections, and quantum of punishments, the new criminal laws (Bhartiya Nyaya Sanhita, Bharatiya Nagirk Suraksha and Bharatiya Sakshya Adhiniyam -2023) is nothing beyond an old wine in a new bottle. It is not a complete overhaul, as made to believe.
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Identical wordings
“While the establishment has gone about town claiming that the new criminal laws are the result of a long drawn exercise to ‘decolonise’ the IPC, CrPC and the Evidence Act the Opposition leaders have called a spade a spade in their dissent notes attached to the reports of the Parliamentary Standing Committee on Home Affairs which vetted these Bills last year. They said that in most places the Bills were identical in language and content to the laws they seek to replace. Criminal law experts have also said that 75-80% of the new laws are primarily a reproduction of the old laws. The the renumbering and rearrangement of sections and clauses- will create considerable confusion in the initial phase of implementation,” explained Venkatesh Nayak, Director, Commonwealth Human Rights Initiative (CHRI), New Delhi.
Venkatesh Nayak, Director, CHR; Floyd Gracias, counsel SC and Dr P Madhava Soma Sundaram, criminology professor
‘Decolonisation’ hollow
Despite the Home Secretary’s claims that the new bills aim to adapt criminal laws to present-day needs, the demand to decriminalise defamatory speech has been ignored. While it is a relief that the harsh defamation punishments from the Manu Smriti have not been reintroduced, defamation remains a significant issue. The Manu Smriti prescribed punishments based on caste, with severe penalties for lower castes. Although such discriminatory punishments have been abandoned, the fact that over two-thirds of undertrials in Indian prisons belong to SC, ST and OBC communities (2022 Prison Statistics in India, NCRB report) indicates persistent caste bias in the criminal justice system. Whether the new criminal laws will address this systemic problem remains to be seen,” Venkatesh added.
IPC illustrations retained
The BNS 2023, retains many of the illustrations and examples from the old law. For example, the Sections dealing with private defence (Sections 96 to 106 in IPC and Sections 34 to 44 in BNS) have similar provisions and illustrations, showing minimal changes in their core content and application.
Control over dissent
“The new criminal laws fail to fully shed their colonial legacy. For instance, while the offence of sedition has been removed, its essence persists in the newly defined “offences against the state,” which still penalise acts perceived as threats to national unity and sovereignty, reminiscent of colonial-era control over dissent,” said advocate Mohini Priya, advocate on record, Supreme Court of India.
Advocate Mohini Priya, advocate on record, SC
Potential misuse
“The introduction of terrorism definitions raises concerns about potential misuse and insufficient safeguards, echoing colonial laws that suppressed opposition. While addressing mob lynching and hate crimes, the broad discretionary powers and overlapping legal frameworks could result in inconsistent application and abuse. Despite some necessary updates, these laws retain significant colonial elements and fail to fully break from the past,” said adv. Mohini.
Law evolving
“Firstly, the law is ever-evolving. It grows from day to day, enhances in scope, and develops over some time. Secondly, Law develops from dynamic changes and evolution of society, which gives rise to social change and legal issues, that need to be legislated upon. Laws also impact society and therefore, there is a synergy between the two aspects,” said adv. Floyd Gracias, a constitutional expert and counsel Supreme Court of India.”
“The focus needs to be on the fact that the law has evolved and covers newer crimes, deals with issues that the earlier law may not have sufficiently dealt with and punishments have been enhanced,” adv. Floyd added.
Criminologist views
Dr P Madhava Soma Sundaram, professor, criminology department at Manonmaniam Sundaranar University, Tamil Nadu said, “I am still in the process of doing a comparative study of the old and the new criminal law. It took over 25 years to vet the draft and after making numerous revisions and amendments before IPC was finally enforced on January 1, 1860. However, such serious mammoth drafting and changes have not happened in the newly enacted criminal laws.”
Criminal lawyer speaks
Advocate Mubin Solkar, a criminal lawyer, said, “There is no overhauling of the previous criminal laws. Some changes have been made, such as the creation of new offences, enhancement of punishments, repealing of certain offences, and some procedural changes. But all this could have been done by carrying out amendments to the old statutes.”
“In fact, the impression which was created was that the colonial British era laws were being totally discarded and a more adaptive and pragmatic, Indianised version of the criminal laws was being re-written. However, the entire exercise appears to be a case of ‘patching up” adv. Mubin added.
Old laws that retain similar explanations
>> Common intention
IPC Sec 34 reads Acts done by several persons in furtherance of common intention—when a criminal act is done by several persons in furtherance of their common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
>> Common intention
Bhartiya Nyaya Sanhita-2023 Section 3(5) under general exceptions
Same as above (when a criminal act is done by several persons in furtherance of their common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.)
>> Culpable homicide
IPC Section 299 covers culpable homicide – Whoever causes death by doing an act with the intention of causing death
>> Culpable homicide
Bhartiya Nyaya Sanhita-2023 Section 100 covers Culpable homicide Whoever causes death by doing an act with the intention of causing death.
Illustration and explanations- same as given in IPC
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