Bharatiya Nyaya Samhita: Bharat’s march from colonial-era criminal laws towards contemporary law

The Indian subcontinent since time immemorial has been a target for colonisers and invaders lured by its rich cultural, intellectual, and material wealth. From the Afghans to the Mughals to the East India Company and thereafter the British Monarchy, the people of Bharat that once resided in a civilisational society of profound philosophical, legal, and scientific thought, were subjugated to the thoughts, cultures and moral compasses of these invaders who have ruled our subcontinent in the last millennia. In 1947, we won our independence after a long battle for Poorn Swarajya. The battle for complete independence was hard fought. Ushered ahead by the idea of governing our citizens with our laws and what suits our society and its nuances. In 1947 India became free, but our ancient civilisational memory was not restored. India operated from the lens of a colonial hangover, driving its people westward looking for what was deemed to be modern and advanced. That is no longer the case. The Bharatiya Government, in the last 9 years, has been on a mission to revamp our institutions and systemic laws that were created in the 19th century by the British Monarchs and its agents to subjugate and rule our ancient civilisational thinking and agency. A major step in that direction has been repealing the earlier laws of Macaulay and heralding in an era of legal Aatmanirbharta. An era of restoring civilisational jurisprudence and thought forcibly stripped of our people’s memories, stripped from our cultural heritage. This is an exercise of reparation and restoration that we give to ourselves. The legacy of our ancestors of thinkers like Kautilya, Yajnavalkya, Rishi Vyas, Manu and the knowledge found in Upanishad, Puran, Shrimad Bhagwat Gita, Ramayana, Arthshastr.

In furtherance of this objective theUnion Home Minister Amit Shah on August 11, 2023 placed three bills before the Lok Sabha namely (i) The Bharatiya Nyaya Sanhita, 2023 (ii) The Bharatiya Nagrik Suraksha Sanhita 2023 and (iii) The Bharatiya Sakshya Bill 2023. These bills are representations of the legal values of Bharat. In the 75th Year of our Independence there was a fundamental need to review the practices in our Courts that still permeate a British legacy of process and substance. There was a need to usher in fast-paced Bharatisation of our legal culture. Can a British law really grasp the inimitable challenges of a nation-civilisation like ours? In 1950, Bharat embarked on a democratic experiment of a codified Constitution with a codified Fundamental Rights and a citizenry that was impaled by the socio-economic, institutional, moral, spiritual, intellectual, physical, destitution. There is an omnipresent question amongst parliamentarians, practitioners, and civil society of the utility of a legal code that has been thrust upon the Bharatiya culture in place of a manifestly robust and comprehensive ancient legal order of the Bharatiya civilisation. The British to this day are governed by a system of “parliamentary sovereignty,” with the basic conception that since the Parliament has been granted legitimacy by the people, it shall be the prime and sovereign arbiter of law and order. This is not the case in Bharat. In fact, the transformative Indian Constitutionalism has been celebrated world over for paving the way of social justice and welfarism where the Courts have abandoned traditional British restraint. The new laws are an exercise of nativising our legal system and developing a law based on the jurisprudence emerging from the lived and ancient experience of Bharat.

The three bills have been referred to the Standing Committee on Home Affairs. After the deliberations in the committee. And it is expected the three bills will be brought for deliberations in Parliament in the forthcoming winter session of the Parliament.

The Bharatiya Government, in the last 9 years, has been on a mission to revamp our institutions and systemic laws that were created in the 19th century by the British Monarchs and its agents

It is indisputable that the bed rock of the prevailing Indian criminal justice delivery system is primarily based upon the Common Laws brought during the British era to rule India for the benefit of British citizenry in the UK. Accordingly, the foundational normative ends of the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), Indian Evidence Act (IEA) was to punish the perpetrators and towards retributive carnal ends rather than to provide justice to victims. To this effect, and to prevent increased and disproportionate incarceration of the Bharatiya people, the new Bill permits the Courts to sentence to community service or samaj seva as has been a ubiquitous practice in Ancient Bharat. The three laws are aligned with the needs and ends desired by the citizens of Bharat as it sets to embark on an economic, social, and political crusade to become a Vishwa Guru and to give to its citizens independence from colonial systems, and guarantee dignity, egality, fraternity, justice. The new laws have provided for procedural and substantive due process by including reforms such as but not limited to- 90-day timeline to file a chargesheet, reforms on police remand, timeline to pronounce judgments within 30 days of final hearings, embracing technology, and has introduced penal provisions for crimes of mob lynching, terrorism, secession et al.

Importantly, the introduction of the new body of Criminal Law was the need of the hour. The Government of Bharat and Prime Minister Modi have given our legal and political exigencies the goal of legislating for the Bharat of the next one thousand years of sustained prosperity, dignity, and quality of life. The Hon’ble Prime Minister Modi in his Independence Day speech on August 15 was pleased to announce that the rate of filing chargesheets has been the fastest under the present government and justice dispensation regime than any other. This was an iteration of the Governments focus on removing the barriers to access to timely justice in Bharat. The new laws are a reflection of that very focus. The new laws have been two years in the making having consulted stakeholders ranging from academia, law enforcement, practitioners, judges from the Appellate to Courts of first instance. Bharat has recently surpassed China to become the nation-civilisation with the largest population in the world. Our economy is robust, self-reliant, and climbing towards the top spots in indexes. However, our justice system was groaning under the weight of chains of limitations imposed by the British criminal regime with nearly five crore cases pending before our judiciary. There is an urgent need to improve our judges to people ratio, which currently stands at 21 judges per one million people. A study by Daksh in 2017 revealed in the 24 States it observed that on average it takes 9.5 years for disposal of justice in subordinate Courts. A Niti Aayog strategy paper in 2018, revealed that at the current pace it would take more than 324 years to clear the backlog of cases in India.

The new bills are the answer to this prevailing condition. The laws are slated to usher in modernity through technology, timelines that uphold due process and normative ends of fair and speedy trial, accountability, Bharatiya notions of restorative and rehabilitative justice, and penetrate the logjam and bureaucracy of Criminal Justice Dispensation that India inherited and after 76 years of Independence build a criminal legal regime that guarantees to all its citizens due process and access to justice and is tailor-made to the needs of the nuances of an ancient civilisational state like India. India that is Bharat.