Revamped Criminal Laws: Political will matters

The government has other laws, such as the Unlawful Activities (Prevention) Act and the National Security Act, under which suspects can be detained without following the due process. These should go t

Political Will Matters

Political will matters

The government has other laws, such as the Unlawful Activities (Prevention) Act and the National Security Act, under which suspects can be detained without following due process. These should go too

T K Arun

LAWS need to be updated from time to time to reflect changed mores and progress made in translating the norms of equality stipulated in the Constitution into everyday reality. Therefore, the move to reform the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act is welcome in spirit. The CPC was revamped in 1973, but the other two laws are of colonial vintage, and certainly can do with change.

However, three major concerns arise. One is the nomenclature of the Bills. Others relate to their content and the political will to enforce the laws of the land with a view to enlarging the ambit of citizens’ freedom.

The new Bills have been named in Sanskrit, not even Hindi: the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Bill. Tamil Nadu Chief Minister MK Stalin registered his protest at what he called the imposition of Hindi. More to the point, naming the Bills in Sanskrit masquerading as Hindi violates the law.

Article 348 of the Constitution is worth quoting in full: “Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc — (1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides — (a) all proceedings in the Supreme Court and in every High Court, (b) the authoritative texts — (i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State, (ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and (iii) of all orders, rules, regulations and bylaws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.”

Sure, the names of the Bills are written in the Roman script, but that does not make what is written English.

In the wake of a strong agitation in Tamil Nadu in 1965 against the imposition of Hindi, the Government at the Centre decided to indefinitely extend the status of English as an official language, and give a statutory basis for the promise Nehru had made in 1963 to the House that English would continue as the official language as long as non-Hindi-speaking states desired. The Jana Sangh, the forerunner of the BJP, had then campaigned extensively in north India, fanning Hindi chauvinism, and weakened the Congress in the 1967 General Election, which the Congress won, but with a reduced majority compared to the previous Lok Sabha elections. Hindu-Hindi-Hindustan was a Jana Sangh slogan, to which the BJP remains emotionally attached.

As to the substance of the new Bills, the provision for a zero FIR that a citizen can get registered at any police station marks a real reform. At present, it is not uncommon for the police to refuse to register an FIR because the substance of the complaint took place in the jurisdiction of another police station. Now, it would be the responsibility of the police to accept an FIR when it is registered and forward it to the right police station on its own.

The provision for videographing equipment and documents seized from a suspect’s premises is also welcome. But there is a surprising omission: a requirement to record the hash number of an electronic device at the time of seizure. Recording the hash number is vital to prevent tampering with a computer after it has been seized by the police. Any attempt to alter the contents of the computer — say, to plant evidence — would alter the hash number. It is vital for the revamped criminal procedure code to mandate generation of the seized computer’s hash value and its recording at the time it is seized.

As for the vaunted deletion of the offence of sedition from the revamped penal code, that claim is plain wrong. In place of Section 124A of the Indian Penal Code, we have Section 150 of the Bharatiya Nyaya Sanhita. The latter says: “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to a fine.”

Secession has been dropped from the name of the section, but retained in its text and intent. It should go, in accordance with the wishes of the Constituent Assembly, which debated secession as a limitation on free speech and decided against it.

The provisions of the UN Convention on torture have not been incorporated into the new law. They ought to be.

The government has other laws, such as the Unlawful Activities (Prevention) Act and the National Security Act, under which suspects can be detained without following the due process. These should go too.