With making these laws effective, colonial-era criminal laws have been replaced with new legislation on July 1, 2014. According to prime minister Narendra Modi’s government, these laws would improve justice conditions in the county, thus trying to make the country more just, but the fact is that there is every danger of distortion of the criminal justice system.

It has been said that the new laws were approved by Parliament in December last year itself but the reality was that the entire opposition was kept out of the entire process. The previous Parliament session did not hold any “worthwhile debate” before passing the laws. The improvements were so negligible that they could have been introduced as amendments to existing laws.

Since the colonial era, sedition law has been used to suppress any opposition. During the British rule, it was used to suppress the freedom struggle and imprison those taking part in it. Now the replacement of the sedition law is one among the key changes. Under the new laws - which replace the Indian Penal Code, the Indian Evidence Act, and Code of Criminal Procedure - sedition is replaced with a section on acts seen as “endangering the sovereignty, unity, and integrity of India”.

While explaining the implementation procedure, home minister said criminal cases registered under the repealed laws before July 1, 2024, will continue to be tried under them only. The new ones would be put into practice only after midnight. He also said that the laws were debated in the Parliament for three months.

The three new criminal codes, the Bharatiya Nyaya Sanhita (‘BNS’), the Bharatiya Nagrik Suraksha Sanhita (‘BNSS’) and the Bharatiya Sakshya Adhiniyam (‘BSA’) were brought in to replace the Indian Penal Code, 1860 (‘IPC’), the Criminal Procedure Code, 1973 (‘CrPC’), and the Indian Evidence Act, 1872 (‘IEA’), respectively. The Bills received Presidential assent, and were published in the Official Gazette on December 25, 2023.

The justification given for bringing these three legislations was to ‘decolonise’ criminal laws of the British era. It is imperative to assess how far the new laws would meet this aim, one must first articulate what was colonial about these three legislations. Among them, the BNS has been meant to replace the IPC. However, to achieve stated goal of decolonization has proved to be too large a bite to consume. It has been argued that the BNS expands powers of the state and the police, retains offences grounded in archaic morality, and widens the punitive network through broad and vaguely defined offences.

For example, the offences against the state. In colonialism, there has been continued strengthening of police power and state has been to exerting it over its subjects. The new criminal laws often keep busy strengthening police powers and trying to deepen the power dynamic between state and citizen. The most significant vestige of coloniality in our criminal law gets exposed where IPC refers to ‘Offences Against the State’, which includes the offence of sedition under Section 124A. While the chapter remains largely unchanged in the BNS, ‘sedition’ has been replaced by a new offence, defined in section 152 of the BNS, titled ‘Act endangering sovereignty, unity and integrity of India’ and differs in some ways from its counterpart in the IPC.

Section 124A of the IPC focuses on activities that excite hatred, contempt or disaffection towards the government, whereas Section 152 of the BNS penalises activities that excite ‘subversive activities’ or encourage ‘feelings of separatist activities’ or endanger the ‘sovereignty or unity and integrity of India.’ While the word ‘sedition’ has been removed from the penal statute, the new provision remains as tight fisted about rights as its counterpart.

Also the BNS does not explain what constitutes exciting ‘subversive activities’ or encouraging ‘feelings of separatist activities’. Post-independence, courts have had multiple occasions to interpret Section 124A of the IPC, particularly regarding its impact on the right to freedom of speech guaranteed under the Constitution. These decisions have effectively limited the scope of the section to only curb speech that poses an imminent threat to public order. In this light, the scope of Section 152 of the BNS—a completely new provision with changed standards—is unclear since the tests evolved by the courts in decisions regarding Section 124A of the IPC no longer apply.

There is the clarification given by the Union government that the new provision no longer criminalises ‘sedition’ (rajdroh), but criminalises ‘treason’ (deshdroh). Rajdroh or criticizing the government is no longer taken as offence. IPC too in its Section 124A exempts comments against governmental measures that do not excite feelings of hatred and disaffection as defined in the provision. Section 152 of the BNS lays down a similar exception, no clarity on differences between the old and new provisions.

About the sedition laws the concern has been about how the state has used it to stifle dissent through arrest and extended detention of persons. Most cases do not lead to conviction (as show the data from the NCRB or 2022, 2021, 2020, 2019 and 2018). The criminal process itself becomes the punishment. This has been facilitated by broadly worded provisions that empower law enforcement agencies to detain individuals. Creating more ambiguity in the standards for these offences will only increase their harmful impact. (IPA Service)