Govt says sedition out, but new Bill adds more teeth to draconian law

If the Centre has its way, and as the past 9 years have repeatedly shown – it usually does, Bharat’s criminal justice system could soon be headed for a makeover that cures India of its 75 year-long colonial hangover and reflects a jurisprudence that is in line with Prime Minister Narendra Modi’s idea of nyaya.

Springing a surprise on the last day of Parliament’s Monsoon Session, Union Home Minister Amit Shah introduced three new Bills in the Lok Sabha proposing a plethora of amendments to the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1898, and the Indian Evidence Act (IEA), 1872.

The bills, now pending scrutiny by the Parliamentary Standing Committee on Home Affairs, propose to rename the IPC, CrPC and the IEA as The Bharatiya Nyaya Sanhita (BNS) 2023, The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 and The Bharatiya Sakshya Bill (BSB) 2023, respectively. The change in nomenclature, replete with its emphatic signalling of Hindi imposition in legislation despite the Constitution’s Article 348 mandating English as the language for “authoritative text” of “all Bills to be introduced or amendments thereto to be moved in either House of Parliament”, however, has to be an issue of least concern.

Also read: Govt tables Bills to replace IPC, CrPC, Indian Evidence Act

Repealing sedition law?

What requires more substantive discussion are the numerous changes that the bills propose in the name of “reform” in existing provisions of the three Acts and their implication on the administration of justice.

Shah’s grand announcement on Friday (August 11) was that, once enacted, the Bharatiya Nyaya Sanhita, which would replace the IPC, will pave the way for repeal of the hugely draconian sedition law (Section 124A, IPC). Coming from a government that had increasingly weaponised sedition, along with other equally draconian anti-terror laws, to persecute political rivals and civil rights activists until the Supreme Court finally ordered application of Section 124A to be kept in abeyance, Shah’s declaration would have undoubtedly stunned his critics.

“The British had made the sedition law to save their government but our government has taken a historic decision to completely repeal sedition,” Shah told the Lok Sabha, while asserting that India is a democracy and “everyone here has freedom of speech”.

Shah’s push for “complete repeal” of Section 124A needs to be seen in the backdrop of two diametrically opposite developments on the law that happened over the past 15 months. In May 2022, the Supreme Court was informed by the Centre that Section 124A was under “reconsideration and re-examination”. The court, in view of the Centre’s stand, halted further hearings in the case and passed an interim order directing that until the Union government finalises its view on sedition, the application of the law be kept in abeyance and no new FIRs be registered anywhere in the country under the offence.

Wolf back in sheep's clothing

In June this year, the Law Commission submitted a report to the Union law minister batting not only for continuation of sedition on the statute books but also for making its rigours far more stringent than they already were under the guise of correcting oddities in the law.

The Law Commission’s report was squarely slammed by the Opposition and rights’ activists for employing skulduggery in proposing to make an already draconian law more prejudicial and invasive. What Shah has proposed now must give deception a whole new meaning.

Also read: With redefining bid, sedition law may get even more draconian

While batting for repeal of Section 124A, the home minister has proposed a whole new section (Section 150) in the BNS for penal action against “acts endangering sovereignty, unity and integrity of India”. A simple juxtaposition of Section 124A, IPC with Section 150, BNS (and also its preceding sections in Chapter VII titled Offences Against The State) shows that what Shah is proposing is more in line with the chicanery employed by the Law Commission than with what the Centre had told the Supreme Court last May.

Section 150, BNS reads: “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 mean, 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 fine.”

Further, the explanation provided in the proposed law for Section 150 reads: “Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section”. Essentially, what this suggests is that the proposed law doesn’t require the commission of an actual act of endangering the country’s unity or integrity – merely expressing such a sentiment would also attract the same charge.

Now let’s take a look at the text of Section 124A, IPC. It reads, “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.” The explanation here defines disaffection as “including disloyalty and all feelings of enmity”.

Ambiguous nature

Reading the sedition law and its like provision in the BNS makes it clear that while the two are essentially proposing punishment for the same act of endangering the country’s sovereignty and integrity, the latter includes a wider and more ambiguous range of activities while also proposing a longer prison term. Besides, Section 150 continues to suffer from the oddity of the sedition law in the scope of punishment that the former prescribes – up to seven years on the lower side and life imprisonment on the higher side – with no explanation of what would attract incarceration of seven years or less and where imprisonment for life may be applied. More importantly, Section 150 lacks any cogent explanation for what would legally constitute “subversive activities” or encouragement of “feelings of separatist activities”.

It may be recalled that the Law Commission, in its report of May 2023, had proposed the punishment for sedition be revised to “imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.” Section 150 directly adopts the Law Commission’s formulation for punishment under the sedition law.

Watch | Sedition law relook: Law Commission creating unknown ghost, says veteran SC lawyer

It is also important to note here that a preceding section in the same chapter of the proposed BNS, Section 146, reads: “Whoever within or without and beyond India conspires to commit any of the offences punishable by section 145 (waging or attempting to wage war against the Government of India), or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.” The explanation for this section is, “To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof”.

Signs of slavery

Shah justified the need for amending the three laws on grounds that these Acts, first introduced during the colonial era, “were made to strengthen and protect the British government” with the aim “to punish and not bring justice” to the Indian masses.

It could have escaped none that the government’s intent behind proposing the amendments was not merely to reform India’s criminal jurisprudence but to use the proposed laws for building a rhetoric that evokes emotive sentiments routinely tapped by the BJP for electoral consolidation. Shah told the Lok Sabha that the Bills were being introduced at a time when India was on the cusp of moving from the Amrit Mahotsav to the Amrit Kaal of its independence. The home minister said that when Narendra Modi addressed the nation from the ramparts of the Red Fort on the Independence Day last year he had pledged to “end all signs of slavery (ghulami ki sabhi nishaniyon ko samapt kar denge)” and the three Bills being introduced today were part of that pledge.

The trope of ghulami (slavery) has been inseparable from the BJP’s electoral vocabulary. The party has repeatedly accused its principal rival, the Congress, of doing precious little to rid India and her systems of governance from a colonial hangover in the over six decades that it ruled the country. This pitch got tweaked further after 2014 to suggest that the country had become truly independent only after Modi became Prime Minister.

Shah weaved this same message into his speech in the Lok Sabha, on Friday (August 11), asserting that India’s criminal justice system had functioned as per laws made by “angrezon ki parliament (the British Parliament)” from 1860 all the way till 2023 and that it was finally time to have a criminal jurisprudence whose sole objective “is not to punish Indians but give them justice; to punish only when there is a need for deterrence”.

Also read: Abusive words against PM Modi derogatory, not seditious: Karnataka High Court

Serving BJP’s agenda?

This assertion by the Home Minister not only seems hypocritical when comparing the to-be-repealed sedition law with the proposed law against acts that endanger India’s integrity and sovereignty but also when examining a number of other provisions included in the BNS, several of which leave a wide scope of being exploited to serve the BJP’s political and ideological agenda.

Take, for instance, clauses listed under Section V of the BNS that deal with “offences against woman and children” and “sexual offences”. The government certainly deserves praise for placing strong focus on proposing stringent laws against the sexual offences of rape (punishable by a jail term of minimum of 10 years to imprisonment for life in cases where the victim is above 18 years of age; minimum jail term of 20 years and maximum of life if the victim is below 16 years and minimum 20 years imprisonment to maximum life imprisonment or death when the victim is below 12 years) and gangrape (punishable with minimum 20 years jail to maximum of life imprisonment if victim is above 18 years of age; where victim is below 18 years of age, offence punishable by life imprisonment or death).

That this draft of stricter laws for crimes against women has come at a time, without any prior intimation by the Centre, when Modi and the BJP’s government in Manipur have been condemned for turning a Nelson’s Eye to the unspeakable atrocities on women in the north-eastern state may seem too much of a coincidence. It would be no surprise if the BJP now goes to town publicising these provisions as testament of Modi’s commitment to women’s safety.

Sangh’s ideological stamp

What also stands out in this chapter, though, is also the patriarchal ideological stamp of the Sangh Parivar and its affiliates, which have been steadfast in dismissing marital rape as an offence. Section V of the BNS not only specifically excludes “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age” from attracting the charge of rape, if the wife makes such a complaint, but proposes a way lenient sentence of two to seven years in cases where a man has “sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent”.

Additionally, the explanation provided for the clause listing the offence of “sexual intercourse by employing deceitful means”, an offence proposed to be made punishable with a 10 year jail term, leaves ample scope for Hindutva foot soldiers to coerce filing of a case against the man in an interfaith relationship with a woman. The explanation reads: “deceitful means shall include the false promise of employment or promotion, inducement or marrying after suppressing identity”. Why “suppressing identity” is a provision easy to exploit in these times when the BJP and several of its state governments are aggressively pushing for laws against ‘love jihad’ isn’t hard to imagine.

Also read: Assam Rifles files sedition case against Manipur civil society group

There are, no doubt, several clauses in the draft BNS that do stand out as much-needed reforms, among them the proposed punishment for hate crimes and mob lynching, which had been long due in wake of repeated directives and guidelines issued by the Supreme Court. These have finally made it to the draft BNS. What remains to be seen, though, is how even-handed the police administration would be, particularly under BJP regimes, when investigating cases of hate crimes and mob lynching where the victim belongs to a religious minority. Past experiences have shown with appalling frequency that accused walking out scot-free in such cases, often to be given public receptions with garlands and rousing welcome speeches by BJP lawmakers and members, only because of shoddy police investigation.

In the proposed Bills that seek to replace the CrPC and IEA, Shah has laudably placed significant emphasis on more scientific evidence gathering with the help of forensics and promised better policing. How credibly these actually happen will, in due course of time, reveal how serious the Union home minister really was when he claimed that the three new bills aim not to punish but to provide justice. Until then, the stink of political and electoral motivations that several of the more contentious provisions of the BNS have raised will continue to cast a long shadow on Shah’s promise of reforming the criminal justice system.