Political observers have often characterised the first ten years of the Modi government as an undeclared Emergency. With the coming into force of the three new criminal codes, that state of Emergency has now been institutionalised. The three codes replacing the Indian Penal Code 1860, Criminal Procedure Code 1973 and Indian Evidence Act 1872 were passed hurriedly in Parliament without any serious debate or parliamentary scrutiny on 20-21 December 2023 when almost the entire Opposition was suspended by the Speaker. In November 2016 the Modi government had banned ₹500 and ₹1000 currency notes calling it a necessary measure to end black money and promote digital transactions. Likewise, the new codes are being justified in the name of 'decolonization' and digital modernization of the criminal justice system.
Experience has now taught every Indian that demonetisation has only reinforced the power of black money. A close look will similarly tell us that the new criminal codes are way more draconian than the colonial era laws being replaced. The claim of decolonization is clearly deceptive and misplaced. As we can see the CRPC version being replaced was codified in 1973 after years of consultation and diligence. The other two codes had also undergone scores of amendments as recommended by successive Law Commissions to remove colonial era anomalies and introduce periodic reforms and safeguards. More than ninety percent of the provisions in the new 'decolonised' codes have been lifted verbatim from the so-called colonial era codes.
The change in name, imposed in Hindi on multilingual India, is also quite pretentious and misleading - the penal code is now named 'Nyay Sanhita' or justice code and the erstwhile criminal procedure code goes by the name of Nagarik Suraksha Sanhita or the code for citizen security. The use of the word justice in the name of the code does not make justice more accessible and guaranteed for the common people, nor does the use of the word citizen make it citizen-centric or citizen-friendly. In fact, a comparative reading of the two versions makes it clear that the new codes will arm the police with much enhanced power and room for arbitrary action. In many cases even the filing of an FIR, the first step in the quest for justice, will now be preceded by primary investigation and consideration by police authorities.
The duration of police custody can now be stretched from the existing limit of 15 days to a period of 60 to 90 days (Amit Shah however says the total duration will not exceed 15 days but it can be spread over two to three months). This will certainly make bail, already a rarity as observed by the Supreme Court itself, much more difficult. The new code also sanctions abject humiliation and outright torture of the accused by allowing practices like handcuffing and solitary confinement. Under the new codes, the balance between a justice-seeking citizen and the state will get more tilted against the former and in favour of the latter. Far from ushering in a citizen-centric dispensation upholding the twin principles of transparency and accountability, the new laws will turn India into a veritable police state.
It was the disturbingly growing use of the colonial era sedition law which had prompted the Supreme Court to point to the utter incompatibility of the colonial construct of 'sedition' and the idea of a free democratic republic. The Modi government had then agreed to stop slapping sedition cases on dissenters and now it claims to have done away with the colonial era sedition law altogether. What the government has actually done is to replace sedition with treason which is a far more arbitrary charge. Modi supporters routinely brand dissenting voices as 'anti-national' and call for sending dissenters to Pakistan. Now such charges will be backed by the new treason law and opponents of the government and its policies will run the risk of being put in jail on charges of being a threat to India's sovereignty and unity and integrity.
We know how the farmers' movement was sought to be delegitimised as a pro-Khalistan or Khalistani-backed movement. Many members of the Indian diaspora have been stripped of their OCI (overseas citizen of India) status for supporting the anti-CAA movement, farmers' movement or opposing the growing assault on constitutional values and the erosion of democracy in India. The other colonial era law which is routinely invoked to suppress truth and dissent - the defamation law - has been left untouched in the new code. In many ways, the new code will make the 'exceptional' draconian laws like the UAPA and PMLA, which put the onus on the accused to prove himself or herself not guilty, into the new norm. Precision, fairness and clarity - the cornerstones of modern jurisprudence - give way in the new codes to vagueness, ambiguity and arbitrariness.
The common people of India have long suffered acutely from institutionalised injustice. For the poor and oppressed people belonging to diverse marginalised identities and minorities, justice is usually an unthinkable or unaffordable luxury and never a guaranteed right. The Modi regime is exploiting this plight of the people to make laws more unjust and render the system yet more unresponsive and undemocratic. But the victorious struggle of the farmers against the pro-corporate farm laws, and the transport workers' strike, which became the first public protest against the new criminal codes and forced the government to retreat on the issue of harsh penalties against drivers in the case of road accidents, tell us that the people can always fight back once they become aware of the ominous implications of any new law.
The Lok Sabha elections demonstrated the strength of the will of the people to defend the Constitution of India. The new criminal codes are antithetical to justice and liberty, two key and most fundamental commitments contained in the Preamble to the Constitution. We must launch a vigorous and sustained campaign to explain the sinister design behind the new codes and how they undermine the basic values of the Constitution. Let us remember that the RSS-led clamour for changing the Constitution began by calling the Constitution a foreign-inspired colonial document lacking in 'Indianness' much the same way as the criminal code is being replaced today in the name of 'decolonization'. The movement for social and economic justice must be complemented by a powerful campaign for political justice and in this struggle we must harness the full strength of the civil liberties movement of India and of India's long tradition of progressive legal activism.
