A Major Shift in Citizen-State Dynamics

Newsreel Asia Insight #84
Dec. 26, 2023

The President of India on Dec. 25 gave assent to three controversial criminal law bills, marking a pivotal moment in the nation’s legal history. Citizens can expect a significant shift in the balance between state power and individual rights in the country.

The three criminal law bills that have been granted presidential assent are: (1) the Bharatiya Nyaya (Second) Sanhita, previously known as the Indian Penal Code; (2) the Bharatiya Nagrik Suraksha (Second) Sanhita, formerly the Code of Criminal Procedure (CrPC); and (3) the Bharatiya Sakshya (Second) Sanhita, previously the Indian Evidence Act, as reported by The News Minute.

The LiveLaw recalls that the bills passed the lower house of parliament on Dec. 20, following the suspension of 141 opposition MPs from both houses. The suspension of the opposition lawmakers after protests in both houses over the Dec. 13 Parliament security breach, represented more than a mere political dispute; it was indicative of a deeper, systemic alteration in the governance of India, Pratap Bhanu Mehta, Contributing Editor at The Indian Express, pointed out at the time.

The concerns regarding the amendments in the criminal law are twofold. Firstly, these laws potentially increase state power, particularly in policing and surveillance. Secondly, they could significantly affect the fundamental rights of citizens, especially regarding free speech and peaceful protest.

Here is a compilation of some of the changes in the law, as highlighted by G. Mohan Gopal, an advocate of the Supreme Court of India and legal academician, in an earlier op-ed published by The Wire.

The expansion of the definition of terrorism to include non-violent acts and expressions is a major shift. This could lead to situations where ordinary forms of protest, like holding a placard or participating in a peaceful march, could be labelled as terrorist activities. Citizens may find themselves hesitant to express dissent or engage in any form of protest due to fear of severe legal consequences.

The creation of a broad crime of “Acts endangering sovereignty, unity, and integrity of India” essentially revives the concept of sedition with an even wider scope. This could affect free speech, as individuals expressing opinions that are critical of the government or its policies might fear being accused of this broadly defined crime.

The introduction of new definitions of organised crime that lack clarity could be used to target political opponents and dissidents. This ambiguity in the law might lead to its misuse, where political activism or opposition could be construed as organised crime, leading to legal harassment and suppression of political dissent.

Penalising attempts to commit suicide with the intent to exert pressure on public servants could directly impact traditional forms of political protest like hunger strikes. This change could deter activists and ordinary citizens from using such methods to draw attention to important issues or injustices.

The District Magistrate or any other Executive Magistrate authorised by him, regardless of their rank, may cause the assembly to be dispersed by the armed forces. This statutory signalling for the use of force against assemblies could lead to a more aggressive approach by law enforcement towards public gatherings and protests. This might result in a chilling effect on public assemblies, as people may fear violent repercussions for participating in such events.

The new powers granted to the police, including detention and removal of persons not conforming to police directions, could lead to an increase in police authority over citizens. This might result in a sense of constant surveillance and fear among the public, particularly in situations involving dissent or protest against the authorities.

The undermining of judicial restrictions against the use of handcuffs could lead to more visible instances of detainees being handcuffed, affecting their dignity and presumption of innocence. This change could also be seen as a step back in terms of human rights and the treatment of individuals in custody.

A critical aspect of these laws is their potential to circumvent constitutional checks and balances. By expanding state power and redefining key legal terms, these laws could undermine democratic principles. The absence of clear constitutional guardrails in these laws is a significant concern, as it could lead to an erosion of fundamental rights and freedoms.

The process leading to these laws has been marked by secrecy and a lack of transparency, as reported by The Wire, which says the Committee For Reforms In Criminal Laws, which played a pivotal role in shaping these laws, operated in secrecy, and its recommendations were not made public. Moreover, the involvement of non-members like the solicitor general and additional solicitor general in the committee's workings, despite not being official members, points to a potential influence that might not align with a broad, unbiased consultation process, it adds.