By Prof Upendra Baxi
The Bharatiya Nyaya Sanhita Bill (BNSB), 2023, is a massive effort to replace the Indian Penal Code (IPC), but it still retains verbatim much of the old text, as with the other Sanhitas. The new is secreted into the old, raising the common concern: why not undertake a simpler exercise of statutory reform rather than proclaim a new codification?
The Parliamentary Standing Committee (PSC) should at least raise the overall concern about the meaning and scope of repealing provisions. Although this question extends to each one of the three Sanhitas, it remains especially important to the specification of crime and punishment.
The BNSB emphasises a crime control model of law reform1 as is evidenced by some new offences (organised crime and terrorism, enhancement in penalties for certain existing offences and rather generous use of the death sentence) rather than the due process model. The introduction of community service as a punishment for certain petty offences is a refreshing exception. Repeal of certain offences, judicially struck or read down (such as offences of adultery and same-sex intercourse [Section 377]) is indeed welcome, so is the much-awaited measure to delete the offence of sedition (Section 124-A, IPC).
Sedition: A Sinister Substitution?
However, the new offence in its place deserves close examination. Clause 150 proposes an offence comprising “acts endangering sovereignty, unity and integrity of India”. It bears an uncanny affinity with sedition; indeed, it seems to be a sinister substitution. As advocate Chitranshul Sinha says2, the “endeavour seems to be to make the current sedition law wider but without the safeguards that judicial pronouncements have created so far”.
If the new proposal is at all to be accepted, definitions of further elements of crimes of “encouraging feelings of separatist activities” or of “endangering sovereignty or unity and integrity of India” remain crucial. Almost anything by way even of reasoned criticism may be said to evoke such feelings and expose a person to such processes of non-bailable administration of criminal justice; it was the “chilling effect” on media freedoms that led the Supreme Court to put on hold all cases of sedition on May 11, 2022—an order that continues to be in force. The chilling effect stands now aggravated by these over-broad categories which prescribe remedies worse than the disease! “Sedition is dead; long live sedition,” can scarcely be the motto of law reform, nor can the conferment of new powers be apt for sustaining prosecutorial zeal or vendetta.
Organised Crime, Disorganised Vagueness?
No constitutionally sincere citizen can ever have anything to say in favour of “organised crime”, defined by the BNSB as:
(i) a continuing unlawful activity such as kidnapping, extortion, contract killing, land grabbing, financial scams and cybercrime
(ii) carried out by individuals acting singly or jointly, as members of or on behalf of a crime syndicate
(iii) involving “use of violence, intimidation, or other unlawful means” to “obtain material or financial benefit” or attempting it.3
The BNSB has been critiqued for its vagueness4, but less recognised is the universal fact that this is a property of language generally and legal language is no exception, both in judicial interpretation and law-making. However, intentional vagueness in law reform—the deferral of clarity and precision to later constitutional process of best judicial interpretation—is a not a virtue in legislative drafting of crimes. Outright vagueness for the sake of it is neither desirable, nor constitutionally permissible, even as expressing the political will of the people especially when the fundamental rights to life, liberty, and subsistence are at stake.
For example, the BNSB penalises anyone with imprisonment for a term not less than five years, (but which may extend to imprisonment for life and shall also incur a fine of Rs 5 lakh for a person) who “organises the commission of an organised crime, or assists, facilitates or otherwise engages in any act preparatory to an organised crime”.
The words italicised above create all the perplexities because as far as I know, the term “organised” is neither defined by the IPC or the BNSB. Assume a guru showering blessings on a congregation attended by members of an organised crime syndicate who are about to commit a crime or a doctor and medical staff not knowing the credentials of patients, or any online service provider similarly placed: would they be criminally liable? The specification—of knowledge and intent—makes all the difference between a mens rea-based crime and a strict liability offence.
The same may be said of Explanation (4) which makes any person who is a member of an organised crime syndicate vulnerable to severe punishment. But any name can readily be enlisted by the perpetrators, unbeknown to a person. And yet, it may take years for one thus suspected to prove innocence. Is it ever just that one may thus incur long incarceration and wrongful prosecution? Should one be a suspect or an accused, with the ease of hacking, of prima facie evidence easily fabricated? Surely, dragnet crimes and punishments may not be lustily and lavishly distributed as strict liability offences in the name of law reform!5
Even as cruel incidents of mob lynching are on the rise, bills passed in the past four years (by at least three Opposition states and one governed by the ruling BJP) are awaiting the president’s approval. Plus, the Union government has stated that no distinct record is maintained as lynching is not defined as a crime under the IPC.
Will such records be now maintained under BNSB? True, it does not establish any separate crime for mob lynching, but instead specifies, in Clause 101(2): “When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished” (with “death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine”).
Note that the term “on the ground of” has been severely interpreted indiscrimination and atrocities laws. Further, would conduct allegedly justified by social custom or the ground of religion be excluded? This has emerged as a major theme in parliamentary debates, and the PSC may deliberate further whether the category of “religion” and “custom” may be explicitly added to this list.
To conclude this incomprehensive review, the BNSB continues to pursue the tendencies of over-criminalisation and enhancement of punishments (life imprisonment can be extended to death, and life imprisonment may be a term of years or for the end of one’s natural life).
The PSC ought to consider whether the BNSB (i) attempts to maintain a just balance between crime control and due process paradigms and (ii) complies with obligations under customary or conventional international law.6 Article 51 of the Constitution has thus far been exiled from law reform discourse. It insists that no law reform enterprise should flout India’s international law obligations.
-The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer. This is the third article in a four-part series that looks at the three recent re-codification bills.
1 The classic text remains Herbert L. Packer,. The Limits of the Criminal Sanction, (Redwood City: Stanford University Press, 1971.
2 Chitranshul Sinha, “Sedition law is not gone, it’s set to be more draconian”, (The Indian Express, August 12, 2023).
3 They may even endorse the new addition of “petty organised crime” (punishable with imprisonment between one and seven years, and a fine) which cause general “feelings of insecurity among citizens and are committed by organised criminal groups/gangs (and include “organised pick pocketing, snatching, and theft”.
4 Project 39-A, National Law School University, Delhi, Bharatiya Nyaya Sanhita, 2023: A Substantive Analysis (2023).
5 It is also anomalous that the provision of offences of harbouring or concealment exempts the spouse [sub-clause(5) of the explanation], and one hopes that the will carefully consider the matter.
6 See, Sarah Summers, Sentencing and Human Rights: The Limits on Punishment [Zurich Open Repository and Archive, University of Zurich, ZORA URL: https://doi.org/10.5167/uzh-228184 (2022)].