The Bharatiya Nagarik Suraksha Sanhita 2023 reportedly marked a stark and solemn departure from the colonial legacy of criminal laws in India by placing 'Suraksha' (Safety / Security) as paramount. Its not a part of the law's title, but one assumes that the 'safety' being contemplated is that of the ordinary person on the street. The same person for whom the Constitution guarantees a set of fundamental rights, like the right to life and personal liberty. In this formulation, constitutionally guaranteed rights are meant to be serviced and protected by the statute. This kind of synergy is precisely what was missing from the scene for the 74 years for which the Constitution dovetailed with the colonial Criminal Procedure Code(s) which placed executive power above all else.
For lawyers who bothered to pick up the BNSS over the past two years, reading was like an act of revelation, as it confirmed that the formulation I depict above was little more than a well-publicised myth. The lawyers saw that there was not much different about the kind of Suraksha imagined by the BNSS from the colonial regime, as the new law had frankly retained the entire old regime lock, stock and barrel.
Over the past two months, large-scale protests by citizens demanding accountability from public institutions and officers presented the perfect sight and smell test for ordinary persons to assess the functioning of our new criminal procedure law and its de-colonial drift. The aftermath of these encounters between the State and its citizens has, it would be fair to say, confirmed for the rest of us what lawyers saw two years ago: The BNSS has placed new bells and whistles on what was still the same old trusty law for the police.
The BNSS is not securing the citizen; a law retaining the entire colonial criminal code was never meant to. The BNSS is securing the baton which is wielded against the citizen. It is securing the regime which presumes citizens to be in breach of peace if they assemble to raise questions for accountability. It is not ensuring security of citizens to walk around the city, but the impunity of those who can accost them on baseless suspicions and demand explanations. It does not further constitutional guarantees of a right to life and personal liberty by holding the State and its officer accountable. Instead, it allows the State to infringe liberty without having to give answers.
It wasn't the race of the ruling class, but this utter imbalance of accountability and power which was the beating colonial heart of the Criminal Procedure Code of 1898. It ensured that in every encounter between police and citizens, the police had a wide berth to act as it pleased, because it placed the State interest as paramount and personal liberty as an incidental fact. This colonial heart continued to beat strongly under the 1973 Code, and now in the latest Suraksha Sanhita of 2023. The Constitution and its recognition of personal freedoms could not change this core of criminal procedure, since its enforcement regime continued to allow police to act first and be held accountable several weeks, months, or years later. A transformative constitution it certainly was, but one which only came into play after the fact.
Without replacing this colonial heart of darkness at the heart of our criminal procedure, good luck hoping for meaningful or respectful exercise of personal freedom by citizens against a behemoth State machinery. Until then, understand that personal liberty is not guaranteed or secured by the due process of law, rather it remains entirely subject to procedures and formal trappings of laws. It is why a constitutional court will start a conversation about protests not by asking how can a State stop citizens from assembling peaceably without arms, but wants to know whether proper permissions from the State were obtained in the first place.
If such laws were illegitimate and labelled as black laws under colonial rule, are not the laws and structures which adhere to that same colonial logic equally illegitimate today?
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