In 2014, a thought-provoking editorial in The Guardian (British newspaper) declared that with BJP-led NDA government’s victory, “Britain finally left India”. That statement was more than just a figurative expression; it highlighted the significant shift in Bharat’s trajectory, moving away from the colonial legacy and towards a more self-defined path. A significant milestone in this journey is the implementation of the National Education Policy, 2020, which aims to transform Bharat’s education system and mitigate the drawbacks of the colonial-era Macaulay education system. Another crucial step towards decolonisation is the introduction of new criminal laws, namely- Bharatiya Nyaya Sanhita, 2023 (replacing Indian Penal Code, 1860), Bharatiya Nagarik Suraksha Sanhita, 2023 (replacing Code of Criminal Procedure, 1973) and Bharatiya Sakshya Adhiniyam, 2023 (replacing Indian Evidence Act, 1872). The implementation of these laws from July, 2024 indeed marks a significant milestone in Bharat’s journey towards decolonisation. For decades, the country’s legal system has been governed by colonial-era laws and these laws have been followed even after 1947 when Bharat got independence from the Britishers. These laws have been criticised for being outdated and not aligned with our nation’s values, morals and customs. Therefore, unlike the repealed criminal laws, the new criminal laws have been carefully drafted by the Bharatiya Parliament, taking into account suggestions from the country’s people and academicians.
The British colonisation of Bharat’s criminal justice system was a deliberate and systematic process which transformed the traditional Indian system into a western-style colonial framework. For colonising Bharat’s criminal justice system, Britishers had taken several steps. Like- they enacted and enforced several laws including Indian Penal Code, 1860 and Criminal Procedure Code, 1898 which were based on British penal laws and procedures; they also established various Courts which were modelled after British Courts and British judges were appointed to preside over these Courts who often had no or little knowledge about Indian customs and laws. Apart from these, Britishers created a police force under Indian Police Act, 1861, which was loyal only to the colonial government and used to suppress Indian dissent and maintain British control over Bharat. In place of adopting the principles and policies of Nyayshastra (authored by rishi Gautam), Manusmriti, Indian customs and laws, western legal principles and doctrines were imposed and followed by the courts in Bharat. The Sedition Law, (under Section 124A of IPC,1860) was widely misused by the British colonial authorities to suppress dissent and silence our freedom fighters. Many prominent leaders, including Lala Lajpat Rai, Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh faced sedition charges. The British also used defamation laws (Sections 499-502 of IPC,1860) to target freedom fighters who criticized colonial rule or British officials. Defamation cases were filed against those who wrote articles, gave speeches or publish materials that were deemed critical of the British ruling.
Unfortunately, the Sedition law and the Defamation law, among others, continue to be used against individuals and groups even after Bharat gained independence in 1947. In fact, many of these colonial-era laws were retained and even strengthened by successive Bharat’s governments, often to suppress dissent, silence critics and maintain power. It wasn’t until recent years that there has been a growing movement to repeal or reform these laws, recognising their potential for misuse and the need to protect freedom of speech and expression in the democratic Bharat. In response, the Union Government has taken a significant step towards fulfilling the unfinished agenda of 1947 by enacting new criminal laws that seek to complete Bharat’s independence from British colonial rule. This move goes beyond mere political sovereignty, aiming to free the nation from the colonial mindset and outdated laws that were used to suppress dissent. These laws retain relevant provisions from the previous laws while carefully altering or replacing oppressive and outdated provisions to better suit Indian conditions and societal needs. BNS,2023 recognises and punishes several new offences as a separate offence (like- mob lynching, organised crime). Section 124A of IPC, 1860 punishing sedition (Rajdroh) has been repealed and the new law under Section 152 of the BNS punishes act endangering sovereignty, unity and integrity of India (Deshdroh). To ensure speedy justice, time bound procedure has been prescribed for investigation, filing chargesheet, trial and pronouncement of judgment. Acknowledging the widespread use of digital devices among general masses, Bharatiya Sakshya Adhiniyam, 2023 has recognised electronic evidence. This forward-thinking move aims to modernise Bharat’s evidence law, keep pace with technological advancements and enhance the overall efficiency of the justice system. The recognition of electronic evidence under the new law is a significant milestone in Bharat’s journey towards a more modern, efficient, and tech-savvy justice system.
The newly enacted laws, particularly the Bharatiya Nyaya Sanhita, 2023, mark a significant shift in focus from punishment (Dand) to justice (Nyaya). This emphasis on justice over punishment reflects a more progressive and humane approach to the criminal justice system. The new law aims to prioritize rehabilitation over retribution, focus on restorative justice and enhance the overall effectiveness of the justice system. This remarkable shift is a welcome change as it acknowledges that the primary goal of the justice system should be to deliver justice, rather than merely punishing offenders. This emphasis on justice over punishment is a significant step towards creating a more just, equitable and compassionate society.
The new laws have recognised the crucial role of victims in the criminal justice system, which was limited in the repealed Codes. These laws give rights to the victim to be informed about the case developments, to participate in the investigation and trial, to seek compensation and restitution, to access counselling, medical and social support. By recognising the role of victims, the new law shifts the focus from solely punishing offenders to also supporting victims, and ensures victims’ voices are heard and their rights are protected. This progressive move acknowledges the importance of victim centric justice and paves the way for a more compassionate and inclusive criminal justice system.
By introducing community service as a punishment for petty offences, Bharatiya Nyaya Sanhita, 2023 has recognised the importance of society’s participation in justice delivery system. This move will reduce the burden on Bharat’s overcrowded prisons and promote a more reformative approach of justice. This significant step towards decongesting prisons and focusing on rehabilitation over punishment alone also promotes a more inclusive and effective justice system.
In this way, with the passage of these three criminal laws, Bharat has taken a crucial step towards breaking free from colonial legacies, aligning laws with contemporary social realities and strengthening the rule of law and effective justice delivery mechanism. The success of these laws hinges on their effective implementation, which requires a concerted efforts from all stakeholders, including the government, judiciary, law enforcement agencies and civil society. However, it is unfortunate that some individuals especially from southern part of Bharat have filed PILs seeking to change the Hindi names of these three criminal laws. One of the arguments which a petitioner lawyer made in his PIL before the Kerala High Court was that the nomenclature in Hindi and Sanskrit of the new criminal laws would create confusion, ambiguity and difficulty for the legal community of non-Hindi and non-Sanskrit speakers. It is indeed disheartening to see that even after 75 years of independence when we as proud Bharatiya celebrating “Aazadi ka Amrit Mahotsav” and working on decolonising the criminal justice system, the debate around Hindi and English still continues. Isn’t it ironic that the well-educated legal fraternity of Bharat is very conversant in speaking big and difficult words of English but they feel difficulty in pronouncing the Hindi name of the new criminal laws. It is certainly ironic that many in the Indian legal fraternity are comfortable with pronouncing Latin maxims, such as “mens rea”, “actus rea”, “actus non facit reum nisi mens sit rea” but finding it difficult to pronounce simple Hindi names of the newly enacted criminal laws. This highlights the lingering impact of colonialism on Bharat’s legal system and the preference for western influences over indigenous language and traditions. While undergoing the process of decolonisation of criminal justice system, it is equally essential to recognise and challenge this bias simultaneously so as to promote a more inclusive and culturally sensitive approach to law and justice in Bharat.
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