'Extensive Consultations' Before 3 New Criminal Laws, Says Modi Govt, But Won’t Give Any Details

03 Jun 2024 13 min read  Share

The three new criminal laws, effective from 1 July 2024, to overhaul India’s criminal justice system have faced criticism for increasing police powers and introducing offences like terrorism without proper safeguards. Experts worry about the potential misuse of these new provisions. Right to Information requests filed by Article 14 to obtain information about the laws’ formation and discussions were obstructed, with higher courts also denying information on “untenable” and “illegal” grounds, highlighting transparency and accountability challenges in law-making processes. Experts raised concerns about the effective implementation of transparency law in the judiciary.

Illustration: TARA ANAND

Delhi: On 24 February 2024, the ministry of home affairs announced that the three new criminal laws—Bharatiya Nyaya Sanhita (BNS) 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 and the Bharatiya Sakshya Adhiniyam (BSA) 2023—will come into force on the 1st of July this year.

The new laws will overhaul India’s criminal justice system and replace the colonial-era Indian Penal Code 1860, Code of Criminal Procedure 1898, and the Indian Evidence Act 1872, respectively. Legal experts have criticised the new laws for being “old wine in a new bottle”, with major changes lacking and minor cosmetic changes prevalent.

The laws increase police powers, make bail difficult to obtain in criminal cases, and introduce special offences such as terrorism and organised crime, already covered by special laws like the Unlawful Activities Prevention Act 1967 and the Maharashtra Control of Organized Crime Act 1999, into ordinary statutes without accompanying safeguards against misuse.

Article 14’s attempts to access information about the drafting of these new laws and the rationale behind introducing such changes were unsuccessful. Information requests filed with major stakeholders in the law-making process, like the higher courts and the ministry of home affairs under the Right to Information Act 2005, were rejected, citing reasons that experts deemed “legally untenable”. 

Despite opposition members of parliament (MPs) raising concerns about the laws’ potential to violate human rights and calling for wider consultations, Prime Minister Narendra Modi’s government managed to sail them through the parliament by 21 December 2023.

The Lok Sabha passed the bills with a voice vote, and 97 opposition MPs were absent due to their suspension. Similarly, the Bills were passed in the Rajya Sabha unanimously, with no participation from the opposition due to their suspension.

In his speech before the Lok Sabha, India’s home minister Amit Shah claimed to have conducted “extensive consultations” on the proposed laws.

Shah claimed to have sought views from “... all governors, chief ministers, lieutenant governors, administrators… the chief justice of India, chief justices of all high courts, bar councils, law universities… all parliamentarians, all members of legislative assemblies… all Indian Police Service officers, and all collectorates” in the process.

The views were compiled by the home ministry-appointed Committee For Reforms In Criminal Laws (CRCL). This committee was constituted to “recommend criminal reforms in India” and its recommendations, along with those from the Parliamentary standing committee on home affairs, ultimately culminated in the present form of the laws. 

However, the details of the deliberations and law-making process, including the committee’s final report, are under wraps.

Neither the government nor the Parliamentary standing committee consulted the public at large. The Pre-Legislative Consultation Policy 2014 prescribes a 30-day consultation period with the public. However, this was not followed in the case of these laws. Opposition MPs also objected to the standing committee rushing through with the deliberations and for not inviting important stakeholders like practising advocates and civil society for their input and for not seeking comments from the general public. 

Article 14 filed Right to Information (RTI) requests with  12 authorities—the home ministry, the Supreme Court of India, nine major high courts, and the National Law University Delhi (whose members spearheaded the CRCL), seeking copies of the views and inputs provided by them to the central government from 2019 onwards.

Three critical issues have surfaced: First, four out of nine high courts denied access to information, citing a “fiduciary relationship with the central government,” a justification deemed legally untenable by experts Article 14 spoke with.

Second, the Supreme Court and certain high courts refused information, citing administrative difficulties.

Lastly, the home ministry  denied information on 4 January 2024, arguing it would “disproportionately divert its resources.”

Experts said the failure to provide transparent access to such information not only erodes public trust in these institutions but also impedes citizens’ ability to understand and engage with laws that will directly impact their everyday lives.

“The problem is less about the availability of the information and more about the truly colonial mindset of the bureaucracy,” Venkatesh Nayak, director of the Commonwealth Human Rights Initiative India (CHRI), told Article 14.

“These new laws will affect a large number of citizens at some point in time or the other in their lives,” said Nayak. “The absence of any public consultation makes a mockery of the standard definition of ‘democracy’ as ‘government by consent’ rather than ‘rule by diktat.’”

Concerns With New Criminal Laws

Under the BNSS, the time period within which the police can seek custody of an accused has been extended from 15 days to up to 60 days. This would allow the police to keep demanding custody in bits and pieces throughout the 60-day period, raising fears of increased custodial tortures.

There were over 4,400 custodial deaths between 2020 and 2022 in India. Although India is a signatory to the United Nations Convention Against Torture, it has not passed a central legislation to curb the crime. Gujarat and Maharashtra top the list of states with the most number of such deaths.

According to Bharat Chugh, a former judge at Delhi’s criminal courts and Supreme Court lawyer, courts are generally reluctant to grant bail when there is a possibility of police custody.  This legal amendment could make it harder to obtain bail.

There is also ambiguity surrounding the maximum number of days a person can be kept in police custody, which is explicitly stated to be 15 days in total under the current CrPC.

The BNSS has not explicitly stated this.

The BNSS also reintroduces the offence of sedition in an alternate form. 

On 11 May 2022, the Supreme Court temporarily suspended the provision widely known for its misuse against journalists, activists, and government critics.

Although the new IPC does not explicitly mention sedition, it reintroduces the offence by punishing up to 7 years to life in jail for anything that “endangers sovereignty or unity and integrity of India.” 

Many experts fear such ambiguity is likely to lead to misuse.

Moreover, the new criminal statutes absorb special offences such as terrorism and organised crime, currently governed by special legislations like the Unlawful Activities Prevention Act 1967 and the Maharashtra Control of Organised Crime Act 1999, respectively, into ordinary criminal statutes without accompanying safeguards contained in these special legislations.

For instance, the UAPA mandates government sanction and independent examination of evidence before going ahead with the prosecution of an accused.

However, the BNS lacks such safeguards while incorporating terrorism as an offence under section 113, potentially allowing misuse. The definition of “terrorist act” is very vague and includes “any act” likely to threaten “unity, integrity, sovereignty, security, or economic security of India” or could “strike terror in the people”.

The new law also gives the police the option to choose whether to invoke special law or the ordinary statute to charge someone for a special offence. This discretion could lead to misuse as the police may prefer to invoke the new statute to bypass safeguards—however little—contained in the special law.

“This is where the secretive CRCL report becomes important,” Nayak told Article 14. 

“Criminal lawyers have said more than 80% of the existing laws have been retained in the new laws,” said Nayak. “The CRCL report may contain explanations as to why changes were made to which provisions of the existing laws. The government has a duty to explain the reasons behind whatever changes they have made to the citizenry.”

Technical Grounds To Deny Information

Although more than eight months have passed since the new criminal statutes were first introduced in the parliament, the CRCL report has not been made public.

“The basis for forming a law or policy should be open to the public for scrutiny and comment, and once the law is passed, anyone can have a look at such documents,” Yashovardhan Jha Azad, a former central information commissioner and special director at the Intelligence Bureau, told Article 14.

We filed an RTI request with the home ministry on 16 August 2023, seeking information about the ministry’s consultation process and its reports.

We requested details, like the list of stakeholders it sought input from on the need for changes in the existing statutes, the list of those who replied, copies of their views, and the final report of the CRCL. 

However, the public information officer (PIO) of the ministry’s judicial wing, Mahesh Chandra, rejected the RTI on 4 January 2024.

“The information is not maintained in the format that you have asked for, and compilation would result in the disproportionate diversion of our resources. Hence, there is no information to furnish regarding the RTI application u/s 7(9) of the RTI Act,” Chandra stated.

(SS of Home Ministry’s Reply)

Section 7(9) of the RTI Act requires a PIO to provide the information in the format the requester has requested unless “it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question”.

“Section 7(9) is not a ground for denial of information,” a former central information commissioner, Shailesh Gandhi, said. The courts too have repeatedly ruled on the same line (here, here, here).

Gandhi said that information can only be denied under section 8 or 9 of the RTI Act—something the Supreme Court has also agreed with. Section 8 provides a list of ten categories of information, like trade secrets, personal information bearing no public interest, and national security, that could be denied by a PIO. Similarly, section 9 bars disclosure of information that could cause copyright infringement.

“The home ministry’s refusal to disclose information is illegal,” Gandhi said.

The home ministry’s reply also arrived almost five months after the request was filed—a violation of the RTI Act since replies are mandated to be given within 30 days.

Article 14 also filed RTI requests with the Supreme Court and nine High Courts, seeking copies of their suggestions on the new bills sent to the Home Ministry.

Only the Delhi High Court and the Kerala High Court provided the information.

Some key suggestions of the Delhi High Court in its five-page report included reform of rape law to address its misuse, provision for imposing “exemplary cost” on persons filing frivolous and false criminal cases, better compensation for accused persons wrongly prosecuted, and shifting the burden of proof in heinous cases on the accused.

The Kerala High Court’s 123-page report included suggestions to address the police's poor quality of investigation, such as having a specially dedicated police team not involved in maintaining law and order responsibilities, enabling better information technology infrastructure for courts at all levels, and reducing technicalities in various court procedures followed during the complaint and trial stages. 

The PIOs at the Supreme Court and two of the nine High Courts—Chhattisgarh and Patna High Courts—did not provide the information on technical grounds.

All of them said that Shah’s letter seeking their views and suggestions was “not traceable” and that they would need more details, such as the letter number, date, and speed post number, to trace the document.

(SS of Supreme Court PIO Himani Sarad’s Reply)

“If they do not want to disclose some information for political reasons but cannot invoke any of the exemption clauses and the information is not voluminous either, they adopt an ostrich-like posture and simply refuse to acknowledge that the information is available with them,” Nayak said.

Gandhi felt that the information commissions, which are apex bodies that adjudicate on appeals and complaints filed under the RTI Act, should insist on the PIOs using the term “missing” instead of “not traceable” and file complaints with the police against those responsible for misplacing the file. The Public Records Act 1993 prohibits public bodies from destroying or disposing of files, except as stipulated by rules, and imposes a penalty of up to five years for violations.

Experts also said that Section 4(1)(a) obligates a public body to maintain all its records in a format that “facilitates the right to information.”

An appeal filed before the appellate officer of the Supreme Court was rejected.

“The reply sent by the CPIO is appropriate and does not require any further addition or further elaboration,” Shashidhara Shetty, one of the Registrars of the Supreme Court, said in his order.

The PIO of the Calcutta High Court said on 4 January 2024 that the High Court’s Chief Justice received a letter on 22 August 2023 and that a three-judge committee was constituted on 1 September to make suggestions on the three new statutes. No other information was provided.

On 25 September and 7 December, the PIO at the Karnataka High Court also stated that a letter by Shah of the same date was “under process” and that since the letter is an “internal office procedure,” a copy cannot be provided.

The public information officers (PIOs) of four High Courts—Allahabad, Kerala, Gujarat, and Uttarakhand—stated that the information could not be provided because it is held in a “fiduciary relationship.”

In a fiduciary relationship, one party is required to act for the benefit of the other. The fiduciary holds a legal or ethical relationship of trust with the other party. This could be a doctor or an advocate (the fiduciary) and their patient or client.

Although the RTI Act exempts fiduciary information from disclosure, the law still allows it in case there is public interest.

“There is no trust-based relationship between courts and the government,” Nayak explained. “It does not cover information communicated in the course of performing statutory or constitutional obligations.”

Nayak highlighted that PIOs continue to routinely abuse Section 8(1)(e), the exemption clause for information held in fiduciary capacity, to deny records that are labelled “confidential”.

Officers Reject Public Interest Argument 

Appeals filed before the appellate officer of the High Courts were rejected, except in the case of the Kerala High Court, where the appellate officer disagreed with the PIO’s reply and parted with the information, albeit after redacting the names of the judges who provided their input.

Ashok Ukrani, a registrar at the Gujarat High Court, stated that “no public interest has been established” in the case before rejecting the appeal.

The appellate officer at the Uttarakhand High Court did not reply to the appeal.

Rajeev Bharti, the registrar general of the Allahabad High Court, found the PIO’s response “incorrect” but still rejected the information, stating that the communication between the chief justice and home minister of India “appears confidential in nature”.

He cited rule number 12 of chapter XL of the High Court’s Rules 1952 that bars issuance of any “letter or document on any administrative or confidential file of the Court” except after permission from the chief justice and registrar general.

“The RTI Act stands higher than any rules [including High Court Rules], and the information can only be denied under the provisions given in the RTI Act,” said Azad, the former central information commissioner. 

“Fundamental rights cannot be curtailed by taking recourse to administrative rules of procedure,” said Nayak.  “The problem is not one of a lack of understanding of such matters. The problem is the mindset, which is still stuck in the colonial age, while the new criminal laws are apparently designed to shed the colonial baggage.”

Nayak felt that the courts have placed their procedural rules on a “higher pedestal” than the RTI Act, and getting the law implemented in the judicial sphere has been a “big challenge.” Some higher courts, he pointed out, have also incorporated newer exemptions in their RTI Rules, apart from those already contained in the main law.

These rules, which Chief Justices are allowed to prescribe, guide the handling of RTI requests and appeals in the courts. Some High Courts, like the Gujarat High Court, have restricted summoning judicial officers who may be acting as PIOs before the information commission for hearings in certain cases. Such restrictions do not find mention in the RTI Act.

“The irony of the situation is that there is no provision for legislative oversight on the exercise of this rule-making power,” said Nayak. “The only place where their RTI Rules can be challenged is before the very same court”.

(Saurav Das is an independent investigative journalist based in New Delhi.)

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