Article by Sanjay Parate
Three new criminal laws, passed without debate in the absence of 146 suspended opposition members, who represented 24 crore people of this country, in the previous Parliament on 20 December 2023, have replaced the old laws from 1 July 2024. There has been a strong reaction across the country against these three laws and a large section of legal experts and advocates, includng the opposition parties, had demanded to postpone its implementation for the time being and hold wide consultations. There are protests against this in many places. Some opposition-ruled states have even passed resolutions against these laws. However, the Modi government has rejected this demand.
The Modi government has tried to justify these laws by saying that the old laws were colonial laws of the British era and were repressive and regressive in nature and that the country needs criminal laws that are in line with the Constitution of our country and the aspirations of a democratic state and that they incorporate progressive precedents given by the Supreme Court from time to time.
While implementing the three criminal laws, Home Minister Amit Shah has claimed that these laws will reduce crime, provide speedy justice to citizens and any case will be decided within three years and this will also stop the flood of pending cases. These three new criminal laws should indeed be welcomed, if they are in line with these things. But is it really so?
What is the concept of justice for a common citizen? That his civil rights are protected and he can express his protest against their violation in a democratic manner and in doing so, he does not become a victim of the oppressive attitude of the state and the administration ; that charges are made against him on well-founded grounds and until the court finds him guilty, he is not considered a criminal and is not treated like a criminal ;
that he is legally protected from discrimination existing in our society on divisive grounds like caste, religion, language, sex and rich-poor, so that his honour as a citizen is protected and he can enjoy his personal liberty with human dignity. This very concept of justice has been defined in our Constitution, and particularly in its Articles 14 and 19. Unfortunately, all the three new criminal laws violate this very general concept of justice for citizens, as is evident from their various provisions.
The Constitution is the 'Gita/Quran/Bible' of our country, which guides the basic foundations of governance and protects civil rights. If any law made by the Parliament is against the values enunciated by the Constitution, then the Supreme Court has the right to declare it unconstitutional and repeal it after review. If any provision of a law clashes with the rights of a citizen, then it has the right to suspend that provision and protect the rights of the individual. Thus, a law acquires its meaning not on the basis of the words written in it, but on the basis of its interpretation on the touchstone of constitutional values. This interpretation helps in transforming our archaic society into a modern society, in enriching its conservative and regressive vision with scientific consciousness and ultimately leads to making our human society civilized and cultured.
This is a continuous process and it is through this process that a law takes its shape and a citizen is disciplined with the consciousness of law. Without laws based on scientific understanding, instead of a civilized society we will be creating a barbaric and violent society.
It is a matter of common experience that in a society suffering from economic inequality, even the law loses its impartiality. Its scale always tilts towards the socio-politically dominant classes and the affluent. Therefore, despite all the good intentions of our Constitution, the class character of the old criminal laws was clear that they were neither impartial nor absolute. Since the machinery that implements these laws is under the control of the dominant classes, the concept of justice for a common citizen becomes very far away. This becomes even more difficult when the ruling party or coalition sitting at the centre starts running the entire state from corporate interests. In such a situation, the concept of natural justice also comes under threat.
The history of the BJP's Modi Raj in the last ten years is the history of its transformation from a dictatorial power to a fascist power. This power has joined hands with domestic and foreign corporate powers, whose interests are based on the exploitation of the masses and the plunder of natural resources like water, forests, land, minerals and the ruthless suppression of tribals, workers and farmers. The discontent of the common people against this plunder and suppression has come to the fore in the results of the recent Lok Sabha elections, which has deprived the BJP of a single majority and has also drastically reduced the size of its alliance and has brought the opposition India Group forward as a major force, whose aggressive attitude has been seen and felt by everyone in the first session of Parliament. But despite its defeat, through its attitude, the Modi-Shah's BJP has made it clear that it is going to follow its old anti-people policies and it is futile to expect a change in these policies from it.
A dictatorial and fascist power invokes the constitution and democracy and claims to be the most democratic, but in practice it is the most repressive, undemocratic and unconstitutional. It tries to beautifully cover up its undeclared dictatorship and misdeeds by condemning the Emergency of the Congress. While doing so, it also molds the laws in such a way that its dictatorship also appears to be legal, behind which the force of the Constitution appears to be present. Repressive laws are a normal need of a dictatorial power. Through three new criminal laws, the Modi government has fulfilled this need. That is why, the draft of these laws was to be first discussed in the Law Commission, but it did not happen ; it was to be debated in the Parliament, but that also did not happen.
First of all, 70% of these three laws are the same as the old laws, only the number of sections has changed. The 30% changes that have been made clearly violate civil rights, go against the modern concept of justice and give so much repressive power to the state that ordinary citizens are left with no means of defending themselves. In the name of justice, 'bulldozer justice' has been promoted, which has no place in a modern, civilized and equality-based society. That is why these three laws are worse than the old criminal laws, which will only serve to divide and disintegrate society.
The modern concept of jurisprudence is that in a civilized democratic state, bail is a right of any person and custody is an exception. Through these new laws, this modern concept of jurisprudence has been reversed and the state has been given the right to detain any citizen and bail has been made difficult. To do this, in the name of dealing with criminals, the police has been given draconian powers, in which the police can increase the possible period of detention in various cases from 15 days to 60 to 90 days. At a time, when the face of the police has become anti-people, giving such power to the police is like 'handing a razor to a monkey'. This only increases the risk of intimidating and torturing citizens in police custody. Anyway, in this 'democratic' country, the figures of torture in police stations and deaths in police custody are horrifying. Similarly, obeying the instructions of a police officer (even if it is illegal) will be the 'duty of the citizens' and disobeying it (protest etc.) will be a crime. But in such cases, there is no provision in these laws to file a complaint against the guilty police officer to protect civil rights. This is to make the police administration completely autocratic.
Section 124 (A) of the old Penal Code was related to sedition. The Supreme Court had suspended it in several of its judicial precedents. It has been reincarnated as Section 150 in the new Nyay Sanhita as sedition. It not only makes protests against the government a crime, but also makes expression (free speech) against any of its decisions a crime. The Constitution of our country guarantees its citizens the right to protest and to form organizations, hold meetings, speak and write, but through this new Nyay Sanhita, this section of the Constitution has been made 'meaningless'.
Similarly, there are stringent laws like UAPA to deal with terrorist activities. There is uproar across the country against the way this law is being implemented against intellectuals who disagree with the actions of the government in the Modi regime. Despite this, 'terrorist act' has been included in the judicial code as a new crime. Now even a general police officer has got the freedom to accuse any citizen of being a terrorist. Peaceful democratic movements and speeches can now be put in the category of 'terrorism'. The burden of proving oneself innocent has been put on the accused - that is, the state is free to make allegations without any confirmed facts, the accused citizen has to prove himself innocent. Looking at the way all the autonomous agencies including ED, CBI are being misused against the opposition in the Modi regime, it is easy to understand that it has now become easier to take revenge on opposition political workers, human rights activists and people who disagree with the government through misuse of this law. But any safeguards for the common citizens against the misuse of this law by the police are absent.
The new law defines rape as something that can only be committed by men and the victim can only be a woman. The law promotes gender discrimination and is not gender neutral. Section 377 of the old Penal Code, which dealt with non-consensual acts and bestiality, has been removed. This means that raping any animal is no longer a crime. The new law also discards the concept of ‘marital rape’ and assumes that a husband will not force his wife, or if he does, it is his right and not a crime. Thus, the proposed changes in rape laws are not only regressive but also negate the gains made in the struggle against sexual violence.
Our country today is a victim of 'hate politics' on a large scale. We saw the extreme of this in the speeches given by Modi in the Lok Sabha elections, when he was targeting the Muslim minority community in the name of "meat, mutton, fish and mangal sutra" in his attempt to mobilize Hindus on the basis of religion and the opposition's complaints against him for violation of the election code of conduct were not given importance even by the Election Commission, as it has already lost its autonomy. There are many judicial precedents of the Supreme Court against hate speeches by political leaders and it also directed the Law Commission to prepare guidelines to prevent such hate speeches. The Law Commission has also given its recommendations to the government in its 267th report. But this report has not found any place in the new criminal laws and the new laws are not able to deal with the dangers of hate speech.
The new law now looks at every citizen with 'suspicious' eyes and considers him a 'criminal'. That is why now every citizen, whether he is a criminal or not, will have to give his 'bio-metrics' to the government. Now every citizen and his activities will be under the police's watch. This is where the process of the Indian Union transforming from a democratic country to a 'police state' is completed. That is why these new criminal laws are going to prove to be worse than the old laws. Instead of making criminal laws democratic in the realm of global civilization and modern human values, the Modi government has 'criminalized' the citizens themselves, to deal with which it desperately needs a 'police state'.
(The author is the Vice President of Chhattisgarh Kisan Sabha, affiliated to All India Kisan Sabha. Contact: 94242-31650)
