The first three days of the new year witnessed a massive strike by truck drivers across northern and western India. Petrol pumps started running out of fuel, there was panic buying, and prices of vegetables and milk skyrocketed. The truckers and their owners were protesting one of the provisions in the Bharatiya Nyaya Sanhita (one of the three new criminal Acts bulldozed recently in Parliament). The Union Home Secretary finally pulled the hand-brake on the provision in the bill that called for stringent penalties in hit-and-run cases.
Cowboy legislation
This is symptomatic of a larger malaise. Legislate first, discuss later. Your columnist has often called this “Cowboy Legislation”.
The disaster that was demonetisation. A nation locked down for Covid with just four hours notice. Three farm laws irresponsibly passed and then forced to be withdrawn because of a powerful movement. Or, take 2017, when GST was hastily implemented ignoring warnings. Thereafter, 129 amendments and 741 notifications related to GST have had to be issued in five years. The Data Protection Act of 2023 was passed after only 52 minutes and 67 minutes of debate with only nine and seven MPs taking part in the discussion in Lok Sabha and Rajya Sabha, respectively. The latest example of Modi and Shah’s “cowboy legislation” is the three criminal law bills which mocked Parliamentary democracy.
All this recklessness impacts, more than anyone else, the marginalised. Consider this: After five years in prison, 121 tribals accused in the 2017 Burkapal Naxal attack were acquitted by the NIA court citing lack of evidence. They were able to attend court only twice during the trial, in spite of the mandatory in-person appearance. As per the Prison Statistics of India Report 2021, 77 per cent of the total prison population are undertrials. Three out of five undertrial prisoners lodged across Indian prisons are from the Dalit, Adivasi and OBC communities.
This serves as a stark reminder of the systemic flaws within India’s criminal justice framework which predate any proposed amendments. Two of my learned colleagues in the Home Affairs standing committee which examined the criminal law bills for almost three months, P Chidambaram (INC), N R Elango (DMK), along with your columnist, submitted comprehensive dissent notes. The notes red-flagged against the implementation of more stringent laws that could exacerbate the current injustices.
Lack of diversity
The first draft of the three criminal law bills was made by the Ranbir Singh Committee. The committee was composed entirely of men from similar social, professional, and economic backgrounds and experience. It lacked representation from various marginalised groups, including women, Dalits, religious minorities, Adivasis, LGBTQs, and persons with disabilities. The absence of diverse perspectives was a significant concern, particularly when addressing matters of such magnitude and societal impact.
Disregard for procedure and skewed stakeholder consultation
The ruling dispensation has a brute majority in the Home Affairs standing committee. Little wonder, dissent notes from Opposition MPs notwithstanding, it was nothing but a parliamentary rubber-stamping committee. Those consulted were from an extremely limited and mostly homogeneous group of stakeholders. Accomplished legal superstars like Justice U U Lalit, Madan Lokur and others were not called in to testify. (It must be mentioned that one of the heads of the BJP legal cell made the cut).
The pre-legislative consultation policy of 2014 mandates a 30-day consultation period with the general public before a law can be approved by the cabinet for introduction in Parliament.
This consultation process, which involves sharing the draft with the public, must be accompanied by: (i) Explanations for its enactment, (ii) Financial considerations, and (iii) An evaluation of the law’s potential impact. Moreover, the comments received during the consultation should be made available on the ministry’s website.
In the case of these Criminal Law Bills, however, a committee was formed with its members and objectives shrouded in secrecy, shielding it from public scrutiny. There exists a notable absence of a clear and compelling rationale for why such a substantial reform was undertaken. Especially since the Home Minister himself stated in Parliament that the primary objective was to alter a few specific sections of the law.
Eliminating the Opposition
The laws were rashly amended to incorporate draconian definitions of sedition, disregard for special statutes, rape not being gender neutral, extensive police custody, and who can be branded a terrorist. The Bills were passed in an almost empty House, as the government had suspended 146 Opposition MPs. These MPs represented 34 crore people, 25 per cent of India’s population. Parliament has been turned into a deep, dark chamber.
We are all for reform. Who can be against reform? But in the name of reform, let us not become more repressive than the colonisers. While there is an undeniable need to reform the colonial era criminal framework, the current criminal law Acts will treat citizens worse than how “native subjects” of the Raj were dealt with.
[This article was also published in The Indian Express | Friday, January 05, 2024]