Ideally, this is a time when every Indian citizen should be rejoicing as the three British-era laws that governed the administration of criminal justice in India — the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure, 1973 (originally enacted in 1898); and the Indian Evidence Act, 1872 — are being replaced by three new laws — the Bharatiya Nyaya Sanhita (BNS), 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and Bharatiya Sakshya (BS), 2023, respectively. However, anyone who feels they have a stake in the survival of democracy in this country hardly shares the enthusiasm of Union home minister Amit Shah, who presented the bill in the Lok Sabha, despite the assurances contained in his reply before the House adopted the three bills on Wednesday.
The three laws are going to touch the lives of Indians for generations to come. Every policeman and every legal professional in this country will be migrating to the new codes and will serve the people with charges encrypted in them. However, it all happened too fast — the bills were presented on August 11 this year and their revised versions were passed in four months. The requests by the members of the Opposition in the parliamentary standing committee on home affairs which is mandated to put the bills under intense scrutiny for an extended time period to study them were not heeded. The home minister later announced that the bills he presented in August were being withdrawn and new ones were being introduced with changes suggested by domain experts and legal professionals. And in a couple of days, the Lok Sabha adopted the bills.
The single most important flaw in the home minister’s approach is that he discounts the importance of Parliament as the country’s paramount law-making institution — laws are made and unmade there. The people elect their representatives to the House so that their views and versions are reflected while making the laws. This is not because law-making does not require the services of domain experts; it indeed does. But it is the people’s representatives with knowledge of life at the grass-root level who make the exercise democratic. They understand the nuances of the law when implemented on the ground much more than the experts. It is their contributions that make a law people-friendly. Discussions for a couple of days on the just over a thousand sections in the three bills — although most of them were replaced — are simply inadequate by any standard especially when the new laws incorporate subjects such as terrorism and the rights of under-trials.
What’s worse, the laws were passed by voice vote in a House from where most of the Opposition members were forced to leave for raising a legitimate demand. The government has proved that its brute majority in the Lower House is more than enough to rush through all law-making exercises and that it can afford to ignore the voice of the Opposition. The Chief Justice of India, D.Y. Chandrachud, was recently on record for saying a democracy allows the majority to have its way but the minority has a right to have its say. The government, however, appears to believe that all that matters is to have its way. A democratic approach indeed!
