Criminal law Bills and a hollow decolonisation

Source: The post is based on the article “Criminal law Bills and a hollow decolonisation” published in The Hindu on 3^rd October 2023.

Syllabus: GS 2 – Governance – Government Policies & Intervention

Relevance: concerns with new criminal Bills

News: In 2023, three new criminal law Bills were introduced in India to replace three existing criminal laws, but they do very little to decolonize Indian criminal law.

Instead, they indicate the continuation and intensification of colonial-style powers.

What are the differences between a colonial law and a post-colonial law?

Colonial Law: Colonial laws favor the colonial state over the colonized people, emphasizing state control. Colonial states fear being overthrown, so they create laws that give themselves more power and control.

For instance, the Indian Penal Code was created to maintain law and order, but it also serves to legitimize the colonial state’s fear of the Indian people.

Post-Colonial Law: Post-Colonial law should reflect the shift from citizens serving the state to the state serving its independent citizens. This change should influence the law-making process, its priorities, and its objectives.

However, the introduced Bills fail in this regard, as they seem to view citizens with suspicion and mistrust, leading to a sense of the state being in opposition to its citizens.

What are the concerns with the bill?

First, the Bills introduce significant changes that undermine the rights of the people and strengthen the state’s authority such as – a) they create new offenses that are overbroad and constitutionally questionable and b) they give the police more power to enforce these new offenses.

For instance, the Bhartiya Nagarik Suraksha Sanhita (BNSS) replaces the Code of Criminal Procedure, 1973, and gives the police more power, including longer detention periods and broader powers in provisions related to terrorist acts.

This expansion of police powers continues colonial practices instead of reversing them.

Second, the Bills do not go far enough in reforming the police and prison systems. These systems are still based on the colonial model.

For instance, the Bhartiya Nyaya Sanhita (BNS) increases punishment durations and expands police powers, reflecting the logic of colonial criminal law. This is concerning as it is unclear how the police will use these new powers and India has already overcrowded prisons.

What lies ahead?

The narrative of decolonization in the Bills should be seen in the context of other changes to criminal law.

For example, the Criminal Procedure (Identification) Act, 2022, allows police to measure convicts, accused, and individuals in preventive detention, which increases surveillance and state control over the population.

Hence, it is necessary for the government to look into these issues and come up with laws that serve the interest of the citizen rather than the state.