Amending and backpedaling: a look into the recent criminal law amendments in India
There have been in excess of 100 amendments to the Indian Constitution, and many more bills for amendments are pending in the pipeline. The flexibility of the Indian Constitution is inherent in its nature, allowing changes to be made whenever deemed necessary. In comparison, even the United States Constitution has undergone only 27 amendments, which only goes to prove the strength of adaptability in the Indian Constitution. The number and scope of the amendments reflect how dynamic the country really is, as reflected through this constitution of India.
On 11th August, 2023, The Ministry of Home Affairs has introduced bills in the parliament for the replacement of three important laws in India: The Indian Penal Code enacted in 1860, the Code of Criminal Procedure inducted in 1973, and the Indian Evidence Act of 1872. It was in 2020 that the Ministry of Home Affairs constituted a national committee to revise criminal laws in India, on the basis of which the bills were prepared. People flogged back at such claims by the government since the committee had no representation of the diversity within the civil society and gender groups. The doubts were further stirred by not making the last report of this committee public.
All three amendments Bharatiya Nyaya Sanhita(BNS), Bharatiya Nagarik Suraksha Sanhita(BNSS), and Bharatiya Sakshya Adhiniyam( came into effect on July 1st 2024. These amendments annulled several sedition laws brought in by the British regime. There are many significant provisions in the constitution. The courts now have to issue verdicts on cases which might have dragged on because of indefinite time frames within 45 days of the end of oral arguments. The hearings of a case, the first sitting of the trial, shall tell the accused about the allegations against her sixty days after the first mention. Investigation into violations against women and children shall be investigated within two months of reporting. Crimes, including gang rape of a woman less than 18 years and mob lynching have been awarded the death penalty. BNSS says that now the police are empowered to seek a maximum of 15 days’ extension for the remand of an accused.
The extension could be given by the police any time before the expiry of the usual 40–60-day remand period and is not necessarily required to be done within the first two weeks of an arrest, unlike earlier. Such lack of clear information is feared to enhance the risk of torture and other forms of ill-treatment. Furthermore, abuse is prevalent in such circumstances due to the insufficient safeguards against abuse, such as the improper use of psychiatric assessments, and the scarcity of regulations to prevent exploitation by people. Like the Indian Evidence Act, the BSA acknowledges electronic records as admissible evidence. Nevertheless, the absence of strict and inflexible data protection regulations, along with the lack of documented instances of electronic evidence misuse, renders this strategy potentially dangerous.
The new laws do not appear to conform to international standards of human rights, as enshrined under provisions in the International Covenant on Civil and Political Rights (ICCPR), to which India as a state party has ratified. International standards indeed consider provisions awarding death for certain crimes and the sweeping definition of “acts endangering sovereignty” contrary to international norms.
An Amnesty International India petition said provisions in these amendments will have “debilitating consequences on the effective realization of the rights to freedom of expression, association, peaceful assembly, and fair trial.” According to the organization, a new provision criminalizing “acts endangering the sovereignty, unity, and integrity of India” brings the old sedition law back in a new garb.
