Justice, not just punishment

Laws require a reboot from time to time to keep pace with the changes in social mores, technology, and concepts of modern jurisprudence. So, few would disagree that India’s colonial-era laws need to be eradicated, tweaked or revamped to align them with concepts of proportionality and rights jurisprudence. Last week, the Union government withdrew the three core criminal law bills and reintroduced newer versions of the Bharatiya Nyaya Sanhita (BNS-II to replace the Indian Penal Code, 1860), the Bharatiya Nagarik Suraksha Sanhita (to replace the Criminal Procedure Code, 1973), and the Bharatiya Sakshya Bill (to replace the Indian Evidence Act, 1872). The bills were introduced after a parliamentary panel submitted its report, though most of its recommendations failed to find favour with the government.
The move, ostensibly, is aimed at shedding India’s colonial past and making criminal laws “people-centric” by focussing on justice rather than punishment. However, apart from the Hindi names of the proposed laws, much of the original language has been retained. In substance, the bills are a mix of provisions — some of which are welcome, though there are others that raise red flags. Doing away with punishment for the criticism of or disaffection towards the government under the new provision that is apparently equivalent to “sedition” is noteworthy; so is the introduction of “community service” as a form of punishment for trivial offences.
The impact of adding terrorism as a penal offence under BNS-II, although UAPA is a law in vogue to specifically deal with terror offences and bringing within its fold threats to “economic security” and “monetary stability” of the country, is not clear — but leaving invocation of the new provision to a police official without any guidance in the law leaves much to be desired. The emphasis on timelines and the expanded use of technology, including videography and collection of forensic evidence, during investigation and trial, is commendable, considering more than two-thirds of prison population in India comprise undertrials. The concerns over allowing police custody beyond the current 15-day limit are also valid. But laws are all about how they are implemented. Good laws may lead to bad outcomes and the law itself may be used as a means to trample upon civil liberties. The real test, therefore, is if the proposed laws will serve the purpose of creating a fair, just and efficient criminal justice system while correcting entrenched injustices.