From Moses to Hammurabi to Solon to Napoleon to Narendra Modi, strong rulers have prided themselves on being law givers to the ruled. The proposed criminal law overhaul with the replacement of the Penal Code, Criminal Procedure Code and the Evidence Act with three sanhitas called Nyaya, Nagarik Suraksha and Sakshya, respectively, can quite properly be hereafter called Code Modi, like France’s Code Napoleon.
Code Modi’s proponents argue that this overhaul is consistent with the idea of decolonisation of the Indian legal system. According to them, the criminal law structure in India was inherited from a colonial state that wanted its policemen to keep the natives under control. Independent India failed to reform its laws post freedom and in the Amrit Kaal of Indian democracy, we have to push in a new direction after suitable modernisation to meet the march of technology.
Well, the British brought in the railways as well. Now if some messiah decided to Indianise the railway system by bringing in a compulsory new Bharatiya measurement, to replace the British broad gauge, locomotives and bogies would have to be rebuilt, all tracks would have to be ripped apart and relaid, the signalling systems would have to be redone and a whole host of confusion would have to be endured just so that we could claim that we owed nothing to our colonial past. And yet there would be the inexorable laws of nature, physics and mechanics which would compel a substantial persistence of the old systems. In that case, would the rewards of re-engineering be worth the effort and aggravation?
Returning to the law, I fear that the comprehensive overhaul proposed by Code Modi is an exercise in futility, accompanied by great unnecessary aggravation in a manner reminiscent of the government’s demonetisation exercise. A leader fond of grand gestures often rushes to make the gesture and record it, regardless of
necessity or consequence.
Courts have often bemoaned that governments have rushed into legislation without doing a litigation impact assessment. Criminalising cheque bouncing under Section 139 of the Negotiable Instruments Act has resulted in an explosion of cases in the criminal courts and a clogging of the magistrates’ courts with a splashback all the way to the Supreme Court. If the amendment of one Section could cause so much systematic damage, one can only speculate what a wholesale replacement of existing criminal law, with a fresh new code, will bring about. There appears to have been no large-scale consultancy with actual stakeholders like bar associations, judges and judicial academies on the likely impact of such large-scale disruption.
Throwing away the old Acts also means discarding a century of judicial interpretation. Above all, criminal laws demand certainty. Replacing settled law with fresh legislation means an otherwise unnecessary exercise in re-interpretation. It is not that there has been fresh vision and an entirely new legislative conception in Code Modi. Over 80 per cent of the old Sections have been faithfully reproduced and reincarnated in the new sanhitas. But it will now be open to lawyers to argue and judges to rule that even identical Sections, re-numbered and re-chapterised, have acquired a new meaning in new contexts.
There thus is merit in P. Chidambaram’s dissent note in the joint parliamentary committee. He says, “Hundreds of thousands of judges, lawyers, police officers — and even the general public — will be put to enormous trouble and inconvenience without any benefit at all. They will have to ‘re-learn’ the laws which will take years before the new provisions are used extensively. This seems to be an exercise in self-glorification rather than a scholarly exercise to improve the laws.”
This overhaul could yet be defended if its direction was towards ensuring the liberty of the Indian citizen. However, the thrust of the amendments and new provisions is towards removing procedural safeguards which protect the citizen’s liberty. The history of individual liberty is intricately tied to a persistent insistence on safeguards. The Magna Carta, the first historic docu-ment which established the principle that the king was not above the law, provided that “No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgment of his peers and the law of the land”, thus instituting safeguards against abuse of powers by the throne.
Under the new code, the policeman’s power to arrest an alleged offender, handcuff him and keep him in police custody have now been enhanced and left to his discretion, with minimal judicial supervision. He can compulsorily take from convicts and persons arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law “measurements” including finger impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical and biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination. A court or police officer in charge of a station may direct the production of any document, electronic communication, including communication devices that are likely to contain digital evidence or other things. The investigating officer is also exempt from physically attending the trial and his testimony can be secured by videography. All in all, it does appear that the draftsmen have given carte blanche to investigators and woe betide any suspect who is subject to investigatorial process.
The pro-police tilt is further evident in Section 172 of the Nagarik Suraksha Sanhita that makes it mandatory to conform to the “lawful directions of a police officer”. Lack of compliance with such directions on anyone’s part enables the police to detain or remove such a person. Section 173(3) grants enhanced discretionary powers to the police. In cases of cognizable offences punishable by three years or more but less than seven years, police officers are required to now first undertake a preliminary investigation to ascertain whether or not there exists a prima facie case. This Section, which empowers police officers to exercise their subjective satisfaction before the registration of an FIR, has a great potential for abuse. More crimes will go uninvestigated because the police will simply refuse to even register an FIR.
A major thrust of the Nyaya Sanhita is to re-criminalise all that the Supreme Court has decriminalised in the past. Adultery has been made criminal for both sexes. While the crime of sedition has been dropped, its spirit survives clanking its chains. Section 150 of the Nyaya Sanhita criminalises “acts endangering sovereignty, unity and integrity of India”. It criminalises words, signs, visible representation, electronic communication and use of financial means for the purpose of exciting secession or armed rebellion or subversive activities or separatist activities or endangering the sovereignty or unity and integrity of India.
What constitutes such activities has not been defined. Thus vague, over-broad concepts endanger the liberty of persons who may be arrested by all-powerful policemen and they will rot in jails while courts interpret whether or not their actions fell under these activities. The case of Umar Khalid and the Bhima Koregaon detenus can now be endlessly replicated.
It is not the purpose of this article to compendiously list all the shortcomings of Code Modi. Suffice it to say that it has privileged the government and the policeman, while giving short shrift to the individual. Due process, which guarantees individuals the right to fair and impartial investigation and trial, have been sacrificed at the altar of state expediency. If Code Modi’s sudden introduction in Parliament was the shilanyas of a police state, the hurried report of the parliamentary committee shows us that the pran pratishtha is not too far away.
Hegde is a Senior Advocate at the Supreme Court of India