THE BJP led NDA government has replaced the Indian Penal Code 1860, the Criminal Procedure Code 1973 and the Indian Evidence Act 1872 by Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarika Suraksha Sanhita (BNSS), Bharatiya Sakshya Adhiniyam (BSA), effective from July 1, 2024 across the nation in spite of opposition from various sections of society. These triple criminal amendment Acts were enacted without discussions in the parliament in December 2023, while 148 opposition members were kept under suspension.

Apart from the narrative of decolonisation, the home minister made tall claims of Bharatikaran, asserting that the nation's punishment-centric criminal justice system would be transformed into a justice-centric one while introducing the bills. The ornamental replacement of words – Indian by Bharatiya, penal by nyaya, criminal by nagarik, procedure by suraksha, and evidence by sakshya & code by sanhita – was presented by the home minister as a way to eliminate colonial legacy. It was also claimed that sedition is decriminalised and mob lynching is criminalised. As usual, the tall claims of ‘Sabka Saath, Sabka Vishwas, Sabka Vikas, Sabka Prayas’ were reiterated while placing the bills. However, in reality, most of the provisions of the erstwhile IPC, CrPC, and Evidence Act are retained, though with some crucial changes.

Missing word ‘Justice’ & imposition of Hindi

The definition clause on "Court," previously termed as "Court of Justice" in the erstwhile statutes, is now simply termed "Court," even though the further definition remains unchanged. While the sections within are in English, the statutes are named in Sanskritised Hindi, which has been objected to by several non-Hindi-speaking sections of the population, terming it as an imposition of Hindi. According to media reports, one High Court judge in Madras has stated that his court shall continue to use the erstwhile English names only.

Decriminalising offences of corporate interests; criminalising protest actions

The BJP government, through the Jana Vishwas Act 2023 enacted during the same period, has decriminalised 182 offences under 42 central and state legislations related to 19 ministries and departments. This includes decriminalising offences related to the production, distribution, and sale of drugs by amending the Drugs and Cosmetics Act 1940. However, the new criminal laws have been framed in such a way as to include protests by working people and the general public, including hunger strikes, gheraos, the right to rule, and similar actions undertaken for their rights and justice – political, social, and economic – under the ambit of organised crime and terrorist activities. Section 113 of the Bharatiya Nyaya Sanhita (BNS) adopts the definition of a terrorist act as in the Unlawful Activities (Prevention) Act (UAPA). Section 152 retains the provisions of sedition as in the IPC, with the changed nomenclature (rajdroh to deshdroh in Hindi) but with harsher punishments of life imprisonment or imprisonment of up to seven years.

Excluding the word religion – suppressing identity

Community service under Section 23 of the Bharatiya Nyaya Sanhita (BNS) is left undefined, allowing discretion to the judge. Section 11 of BNS provides for solitary confinement. Sections 103(2) and 117(4) of BNS criminalise actions leading to murder and causing grievous hurt by “a group of five or more persons acting in concert on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground” without specifically mentioning "mob lynching" as a special crime. Notably, the term "religion" is omitted, despite the increase in mob lynching based on religion, particularly since the BJP came to power. The original bill, introduced in August 2023, had provisions for lesser punishment than for murder, which was amended in the final enactment to impose the same punishment, but still excluded the word "religion."

The explanation to Section 69 of BNS, which criminalises promises to marry under ‘deceitful means,’ includes ‘marry by suppressing identity.’ This provision could bolster the "love jihad" narrative promoted by right-wing forces like the RSS and its affiliates, with the active support of the BJP, to further their hate crimes for divisive politics.

Handcuffing – police custody; burking of crimes – waiver of trails

The conditions mandated against the arrest of women at night under the erstwhile laws have been relaxed, now allowing their arrest with women police officers present. Section 43(3) of the Bharatiya Nagarika Suraksha Sanhita (BNSS) permits handcuffing every accused person, contrary to the Supreme Court guidelines that restrict handcuffing to notorious criminals and those accused of serious offenses. The period for police custody has been extended to 60 or 90 days as per Section 187 of BNSS, and the maximum duration for filing charge sheets has been increased from 90 to 180 days, thus extending the timeline initially meant for terrorist acts to common offenses as well.

Section 172 of BNSS provides statutory sanction for police to detain persons without complying with the safeguards around arrest, as such detention is not deemed an arrest. Section 173 allows police to hold preliminary inquiries to determine if a prima facie case exists before registering an FIR for offenses attracting 3 to 7 years of punishment, potentially leading to the refusal to register complaints (burking of crime).

Section 37 of BNSS mandates the prominent display, both physically and digitally, of the name, address, and nature of the arrested accused in every police station and district headquarters. This can lead to the branding of innocent accused persons as criminals before trial and formal conviction, violating their right to privacy and human dignity, and facilitating the profiling and targeting of individuals.

Section 356 of BNSS provides for the waiver of the right to trial, empowering the court to proceed with the trial as though the individual were physically present if the individual is declared a proclaimed offender who has fled to evade trial. The attachment of property of the accused before conviction, the dilution of safeguards for accused persons regarding medical examination, and the curtailment of the right to a free and fair trial through provisions for the entire trial, including cross-examination over video conference, are also concerning. Section 479 reduces the period undergone by under-trials for default bail to one-third. Additionally, the protection given to public servants from private complaints undermines the purpose of such complaints.

Undermining the fundamental principle of presumption of innocence

Overall, the triple criminal laws undermine the fundamental principle of criminal law, i.e., the presumption of innocence—the bedrock of the Indian criminal justice system—which the courts have upheld time and again as the basis of criminal jurisprudence. Moreover, while these laws are applicable to offenses committed on and after July 1, 2024, the trial of pending 3.4 crore criminal cases in the lower courts and the cases of 66 per cent of undertrial prisoners will be conducted under the erstwhile criminal laws. This means that two different systems of trial will be run in parallel in the courts, which will need to be continued for years to come based on two different substantive and procedural laws.

Deletion – exclusion; inclusion & discretion

The deletion of the word "Justice" from the definition clause of "Court of Justice," the exclusion of religion in the clause claimed to be criminalising mob lynching, the inclusion of suppressing identity in the explanatory clause on deceitful means, the discretionary power given to the police to register a complaint or not, the reclassification of sedition as deshdroh with higher punishment, provisions for solitary confinement, handcuffing, and the display of the identity of arrested accused physically and digitally, as well as criminalising hunger strikes and other forms of protests for rights, and the naming of the laws in Hindi, must all be viewed against the backdrop of the BJP government's track record at the centre and in states, and the RSS ideological narrative of Hindu-Hindi-Hindustan.

The experiences of Indian society and its people under BJP rule, with increasing acts of mob lynching, hate crimes under narratives like love jihad and cow protection (gou raksha), honor killings, the death of Father Stan Swamy, and the imprisonment of noted civil rights activists like Anil Teltumbde and others for years without bail under UAPA, cannot be overlooked, especially when similar provisions are being incorporated into the substantive law of general crimes.

Destructuring the super structure; aligning with neoliberal economic base

The narrative of the appeal for "chaar sou paar" during general elections to bring in fundamental changes, including the alteration of the constitution, as claimed by several BJP leaders, denotes the underlying intent of the BJP and its mentor RSS. The overarching crucial changes in criminal laws, brought in such a hurried manner without comprehensive discussions, signify this intent. Furthermore, the policies and actions of the BJP government at the center and in the states were designed to further neoliberal policies and suppress any form of resistance, defiance, or combative struggles of the people against these policies and actions.

To achieve this, the BJP has utilised the divisive designs of the fascistic RSS and its affiliates to break the unity of the people by spreading the venom of hate. They have deployed every means of majoritarian authoritarianism to further their societal, economic, and political restructuring and have led an onslaught on the superstructure to align it with the neoliberal economic base.

Verdicts to be delivered but not Justice

The design of the BJP, which has introduced these significant changes to the substantive and procedural criminal statutes constituting the criminal jurisprudence of the nation, is aimed not at delivering justice but merely delivering verdicts, as was aptly noted by the CPI(M) in response to the Supreme Court judgment on the Ayodhya dispute.

These changes must be examined in the context of the objectives of the constitution. The constitution aims to secure social, economic, and political justice for all citizens; liberty of thought, expression, belief, faith, and worship; equality of status and opportunity; and to promote fraternity while ensuring the dignity of the individual.

Interpreting these triple criminal laws in light of the constitution's objectives reveals that they are intended to unleash assaults on people's rights under a neoliberal regime, facilitate a creeping trend towards fascism through police control to suit majoritarian authoritarianism, and dismantle criminal jurisprudence to further the hegemony of the current ruling class, which is characterised by a communal-corporate nexus in governance.