Thinking about Law and a 'Legal Science' in India

In a recent post on this Blog, we touched upon the idea of criminal law in India being a rather confusing space to navigate. While the post focused on confusion created due to different courts promoting contrary positions on law, the issue is much broader than that. Courts, Legislatures, and the Enforcement Agencies, all appear at times to be speaking at cross-purposes — on matters of both substantive and procedural law. 

I felt that the point about confusion in the law's landscape could do with a longer, standalone post. I say confusion instead of consistency, but perhaps they can be used interchangeably to describe what I have in mind. Which is the absence of any meaningful coherence within the structure of law. No lodestar to guide lawmaking itself, or to guide decision-making within laws by various stakeholders wielding power. 

Law and Legal Science

There are many reason for pursuing this thought. One of them is a recent paper by Prof. Markus Dubber titled 'New Legal Science in the Dual Penal State' (available here). The paper explores the idea of looking at the structure of law, stripped of the baggage that the legal enterprise has acquired over time in different parts of the globe (traditionally divided across the Common Law and Civil Law lines), and then creating a system based upon identified principles which are pursued through the law. 

This idea, of starting from the ground up to develop a system of law, is a thought experiment which we do not end up dealing with much in India. We do not have any scholarship comparable to Hart & Sacks' The Legal Process that has attempted to unpack the many layers of our legal system, and then try and resurrect it on a bed of principles. What would such an exercise look like within the Indian context? It would need a lot of work, for starters, because of how many layers the Indian system consists of. And then there is the conflict about principles. Professor Dubber's paper moves on the premise that a new Legal Science will be in pursuit of a critical analysis of law. However, can we really agree on what those principles will be, and create a system in willing pursuit of critically analysing the exercise of power by the state? I wonder.

Here, I only bear half the burden and explore the layers of our legal system, working backwards, peeling back layers of the onion. The fight about principles can come later, and by others.         

Our Constitution as a Source of Principles?

Before you say "We do have a lodestar, it is the Constitution of India, and this post can end here", let me deal with that at the outset. The Constitution is a political document which proscribes certain legislative acts in Part III, and promotes certain others in Part IV, but it is not a document which actively crystallises principles for lawmaking. Within that broad sphere of activity which the Constitution leaves open, a State is free to do as it pleases. Even the power dynamics that it sponsored have created more problems than we are ready to acknowledge, as Gautam Bhatia has argued in his recent book.

The boundaries of principle have been supplied by our courts, and quite erratically at that. As Sandipto Dasgupta's argues in his book, independent India's judiciary saw independence as an opportunity for the courts to fully embrace Common Law, and the Supreme Court tested the Constitution not on its own terms or those of its founding principles but on the anvil of Common Law principles which the judiciary thought that it had inherited. Whatever scope for principled lawmaking the Constitution may have provided thus proved to be short-lived as a result.

The Common Law in India   

Peeling off this layer of the Constitution and the founding moment of the Republic takes us to the layer beneath; of colonial rule which began formally in 1858. It was the legal traditions introduced during this time which the judges of independent India turned to. Not just the courts, but the move to "Legalize the Revolution" (borrowing again from Dasgupta) meant that a large part of the colonial state apparatus was retained after independence. 

What were the principles which guided lawmaking during this era? Was it really the Common Law as the judges of post independence India wanted to argue — albeit a shackled common law which they felt had been freed with independence? Or was it something more complicated than that. M.C. Setalvad's Hamlyn Lecture titled the Common Law in India is a good place to start unpacking this, but it is necessary to place it in context. Setalvad delivered this seminal lecture in 1960, at the end of the tumultuous first decade of the Constitution of India governing affairs. A decade in which he was the country's Attorney General and at the forefront of the constant tussle for the Constitution that was going on. To think that Setalvad was in England merely delivering a historical or academic lecture is naive — the lawyer was making a case about his vision of independent India's legal system. 

The pitch that the Common Law came into India is one that has stuck since. But it requires more critical scrutiny than what has so far been offered to help us arrive at a more honest appreciation of the conflicting influences that guide India's legal system. To simply wax lyrical about the Common Law in India ignores a large tradition of colonial legal history — that of the Codification enterprise. 

Codification was conceived of, in part, as a response to the Common Law. A set of predefined rules that did not change on the basis of successive judicial decisions. It was meant to be the scientific expression of law, par excellence. And it was in codification that the colonial legal enterprise was birthed originally, in both realms of civil and criminal law. The Common Law that the courts of British India employed was within this context of these codes, and within the broader context of colonial rule. It presents us with the original setting of the common law working in an age of statutes, much before Guido Calabresi would go on to discuss these themes for America.

The principles, motivations, and influences behind the Colonial Codes, which were interpreted by courts using — at times — the set of principles developed in the Common Law of England, are therefore also an inseparable part of how we unpack Indian law today because of independent India's choice to retain these  codes lock, stock, and barrel. 

The Messy, Pre-Colonial, Company Era     

Peeling the layer of colonialism, we find the messy pre-colonial era which preceded the formal assumption of power by the Crown. Much like the peaceful transfer of power that occurred in 1947, the assumption of power in 1858 was no break with systems past. Instead, legislative and administrative projects which began prior to 1858 are what came forth as the first colonial codes in criminal and civil law. 

A shift from colony to independent nation-state in 1947 without changing much of the colonial state apparatus, including the colonial legal codes, meant that independent India chose to avoid confronting the logic of power that underlined the colonial legal system. This was a logic which placed the sovereign above the subject-citizen. Adopting it in a post-colonial setting has, arguably, proved not to be the best of choices from the perspective of creating accountability upon sovereign power. 

If we turn the clock back to 1858, the transfer of power took place by a simple proclamation read aloud by Lord Canning, and all the natives under Company rule became subjects entitled to all protections of a rule of law under the British Crown. But, the foundational premise of Company Rule was markedly different from Crown Rule. Its predominant goal was policing the territory to maintain law and order and maximise revenue; justice, was not a prerogative. And in adopting the police-state as the base for Crown Rule, it was ensured that the justice promised under the Crown would also remain a poisoned chalice. 

The core interest of Company Rule was revenue collection: administration of law was a by-product. For ease of administration, procedural systems similar to the British law were introduced for civil and criminal proceedings. The core interest structuring these proceedings was not justice but regulation and maintaining order for maximising extraction of wealth. Company Rule coexisted with a sliver of pre-1858 Crown rule, in the form of Crown Courts for certain areas (Presidencies) and peoples (the British).  

The shift from Company to Crown Rule did not eliminate the Police State components while introducing or expanding the just rule of a benevolent sovereign — assuming that the Crown Courts administered any such thing in the first place. But rather 1858 and the subsequent years assimilated them together to form a composite structure akin to the kind of Dual Penal State which Dubber has identified in different contexts. This is perhaps most visibly seen in the complementarity and later assimilation of the Police Act and the Criminal Procedure Code which were enacted by the Crown after 1858. 

Forerunners to Company Rule

The police state of Company Rule is as much part of the foundations of Indian Law as is the Constitution. But it is not the last layer of the onion. We can continue to peel it further and reach the 18th Century. At this point, different parts of the subcontinent were under different legal regimes. Those parts in which the British East India Company took root were no terra nullius either. The legal systems which the Company introduced through its regulations were designed to either nullify, or complement, the pre-existing regime that the Company encountered. This meant, therefore, that the Company's law was also influenced in turn by what came before it. 

The recognition that what came before Company Rule mattered to how the British went about their task in introducing legal rules and schemes for governance is important to help understand just how complicated the structure of present-day Indian Law is. These influences are also not of mere historical significance but can be felt even today, both indirectly in terms of how they influenced the British-era law as well as directly in how various practices can still trace roots back to this period. It is a shame that an effort to go and 'decolonise' the criminal law made no attempt to unravel the substantive foundations of the present-day Indian criminal law, which appear to be largely a 19th Century creation.  

Why a Legal Science?

Without fully engaging with, and deconstructing, all of these influences upon our legal system, it is impossible to carve out the principles that do guide its functioning, or identify ones that ought to guide it.

There is no need for this exercise if all that we want from 'Law' is that it provides some kind of rickety and uncertain basis for how social, political, and economic relationships can function. But if we want to go a step further, then a project of the kind that Dubber bats for — call it by whatever name — is obviously a desirable effort. Especially, in a jurisdiction like India, which has so far not had any time for a true and honest reckoning with its legal history to organise its legal present.

There are numerous examples where a consistent, principled, approach would reap benefits in how the law is created and applied. Within the criminal law, one can easily think of how it would transform the regime of bail and arrest. Again, I might add, for better or for worse depending on where you stand. Either which way it would be better than the present system where outcomes appear determined largely by the luck of the draw, and personal moral compass of individual officers and judges who wield near total discretion in deciding matters pertaining to individual liberty.           

Fairness and Bail

In July 2022, the Supreme Court delivered what proved to be the the last significant milestone on the law of bail — its judgment in Satender Kumar Antil v. CBI [(2022) 10 SCC 51]. At the time, I had noted that the judgment was quite a mixed bag. On some issues, such as arresting persons and denying bail after completing the investigation, it unequivocally expressed a preference for personal liberty. On others, such as actually laying down clearer guidelines for exercising bail discretion, it did not do much. And it left the subject with a plea to Parliament — forlorn, as it turned out — to think of coming up with a dedicated law on the matter of bail as is prevalent in some other countries (the UK example was cited).

Two years hence, the situation has only gotten worse. It may seem paradoxical to be writing this at a time when the Supreme Court and High Courts are invoking Article 21 to grant bail in cases where trials have been delayed and accused persons have spent years behind bars. That, however, is precisely the point: My wrongful confinement does not magically become concerning after two years, eleven months, and nine days. It was either always concerning, or it is never concerning but simply uncomfortable. 

Once we begin to see this, it is clear that granting bail is not some liberty affirming, constitutionally driven, judicial choice in such instances that we ought to be celebrating. It is a morally (and politically) convenient, and legally hollow, choice, which is perpetuating a jurisprudence of apology driven by the personal beliefs of judges with the text of the law merely a proxy, and not a choice for liberty inspired by a set of rules and political ideals that represent shared beliefs.

But this is really the tip of the proverbial iceberg. The consternation, or celebration, around the outcomes in bail cases takes all the attention and successfully masks the real scandal of procedural unfairness in the bail adjudication setting. What are the hallmarks of fairness, in a processual setting? There is no textbook definition, but it is easy to agree on some basics: (i) fair notice, in that I should know the case I have to answer (ii) an opportunity to be heard to give said answer, and (iii) a guarantee that my case will be dealt with by the same yardsticks as every other case. If even one is absent from the procedural setting, I would argue that such a setting cannot, under any stretch, constitute a fair setting especially when what is at stake is personal liberty.

And yet, we continue to adjudicate bail cases in a manner that almost prides itself in not confirming to the most basic notions of fairness. A person being arrested will almost never be furnished a copy of the First Information Report, or detailed grounds of arrest, or even a copy of the application seeking custody at the time of the hearing. Even when a bail application is somehow filed in spite of not having access to any of these documents, prosecutors and police personnel will either not file any response and rely exclusively on the secret contents of their dossiers and diaries, or object to sharing copies of any responses being filed with the accused. 

With such woeful anchoring on the aspect of notice, being granted with an opportunity of being heard is a mirage for most persons being detained. Almost always the first hearing is a washout since the lawyer has no idea of the case, and getting a hold of the documents will take a few days. At this point, the degree of protection that the law offers to your personal liberty becomes directly proportional to the money that you are willing to pay to lawyers who can secure that liberty. It is settled transformation which, sadly, leaves the vast majority behind. 

Which then brings us to the worst placed facet of the lot - adjudication itself on issues of bail and remand. There are, again, two parts to this. Firstly, there is the content of decision-making, which takes us back to the outcome. In not having guidelines on how courts ought to exercise their discretion on bail and custody, the result is that courts are free to conduct almost any kind of reasoning so long as it fits the remarkably featherlight and self-justificatory standard of exercising judicial discretion 'judiciously'. Secondly, there is the process of decision-making — how many hearings, what all has to be seen / looked at, who all have to be heard, what all must be recorded in the order, etc? 

Somehow, there is even greater flux on this aspect. A bail application may be decided now, or may be listed four months later, and may not be heard on that day citing some administrative difficulty and then be taken up two weeks later. Or a judge may simply conduct a remand hearing at his house in the morning after counsel having ten minutes notice. A court may agree to look at the documents filed by an accused, or may not, or may look at material filed by the prosecution without showing anything to the accused. A victim may be heard, or may not unless the statute prescribes otherwise, or may only be allowed to file written objections. A judge may pass a two paragraph order, or a two page order, but may not share it with the accused until after a few days due to logistical difficulties. Where the judge grants bail there may be conditions, or may not, or the same kind of cases may have different conditions, or different accused in the same case may have different conditions without any explanation. Literally, anything goes.

When we think about the need for a bail law, the conversation naturally glides towards the debates on the matter of outcomes since that is what grabs most public attention. The real need for having such a law is arguably elsewhere, in making the process of bail adjudication fairer for all parties involved. It would be a huge step in stemming the growth of this jurisprudence of apology, and reinforcing a rules-based ordering of personal liberty, victim's rights, and investigative prerogatives of the state. 

Considering that undertrial prisoner population today stands at a jaw-dropping national average of more than 75% of total prison population, there is no other legal reform requiring more attention. It needs work, yes, and it will not brook an easy solution such as simply releasing first-time offenders early. Whichever parliament, or Court for that matter, commits itself to the task, ensures that India's criminal justice system takes a step back from the abyss into which it has been staring for some time now. 

Ramblings on the New Codes

This is a short post which hopes to make three brief points. First, I want to draw attention to an interesting contribution by Prof. Arudra Burra and develop further on his critique of using the colonial / decolonial framing in context of the new criminal codes. Second, I want to bemoan the startling lack of imagination in how successive governments, scholars, and us lawyers continue to display when we think about reforms. Third, I hope to urge readers to continue to write on the intended and unintended consequences of the codes!

Of the Colonial Milieu

Prof. Burra argues that the decolonisation framing to argue on the merits / demerits of coming up with new criminal codes to replace the 19th century ones is 'the wrong answer to the wrong question'. He does not comment on the substantive content of the codes itself but his limited focus is to argue that the framing itself is spurious, tying to his earlier work on this subject. 

The intervention is extremely vital and helped me frame some thoughts I had after reading an excellent book on Myanmar's criminal process by Nick Cheesman (hat tip Rohit De) and earlier research on the growth. What I was left thinking after finishing Cheesman's book was that the decolonial / colonial framing to argue about the criminal codes is not merely spurious, it is actively detrimental to the development of law. In projecting everything colonial as 'bad' but retaining most of it, we are not only being facetious but actively jettisoning valuable links to a global legal tradition with a remarkable history that would help us immensely to continue to make sense of our immediate milieu. Sure, it is a bloody and oppressive history, but it is in equal parts an erudite, revolutionary, and inspirational history of the world which we must hold close and keep learning from, rather than shut our eyes to. The level of interconnectedness in the colonial legal world is crying out for exploration, and not for being consigned to the record rooms by a bandwagon of jingoism and arrogance. 

The Barren Reform Imaginary

Throughout the conversations about the 'Aparajita' Bill — only the most recent example of how it is always politics which wins over principle in matters of criminal law — it was one aspect which stood out. A criminal process which is more punitive and more quick to deliver outcomes (soon faster than the transmission of thought) is all that the political class seems to view as 'reform'. In this regard, it is ironic that barely three months after the new codes promised exactly these two developments, a state government has brought in such a set of amendments as if to say "I see your reforms Mr. Union Government, and raise you tenfold".

Maybe it is not their fault. Look at the debates which we have around the legal system and it is clear that the reform imaginary is just completely barren. Today all that the "smart people in the room" (yes, economists and data scientists, I am looking at you) want to do is for the process to be faster to free up more time and give us more GDP growth by showing some chain-reaction of cause and effect. The more ethical set of reformists will also focus on this conversation, but for good measure decry deterrence as not being evidence based. 

There is far too little radical thinking about the process and its contents. Where is the paper that dares to re-imagine what the criminal process may be like, or what a new set of crimes may look like for contemporary India? Gathering cobwebs in the physical and digital spaces. The more I look at the literature generated in the last two decades on issues of the criminal process, the more I am left to wonder whether any outcome other than the codes with their minimal changes to status quo could have been realised even by the most agreeable of dispensations.

Time to Write!

We are all witnessing an unprecedented time where an entire system of legal professionals appears to be trying its best to somehow make sense of the relatively few changes that the new codes have brought upon us. Until such time that High Courts issue practice directions to help, which I would argue is the most sensible way to resolve many issues, let us try to write about the problems we are facing and solutions that courts are working out! 

For instance, how are the provisions on service by way of electronic means being treated by the courts? Or, what about the provisions requiring the accused be heard before taking cognizance in cases instituted upon private complaints? And, of course, what about Section 531? By sharing insights across state boundaries, all of us can do our measly bit to improve the lot of litigants who are the ones ultimately suffering the vagaries in interpretive choices that courts will make. 

The Criminal Codes are Dead; Long Live the Criminal Codes

[This is a long post]

Prologue

For over a century, the foundations of the Indian criminal process have been identified by its three codes: the Indian Penal Code of 1860 [IPC], the Criminal Procedure Code of 1973 [Cr.P.C.], and the Indian Evidence Act of 1872 [IEA]. Not anymore. Henceforth, unless some last minute surprise is sprung upon us, the three codes are to be replaced by the Bharatiya Nyaya Sanhita [BNS], the Bharatiya Nagarik Suraksha Sanhita [BNSS] and the Bharatiya Sakshya Adhiniyam [BSA] of 2023.

There are many questions that come to mind when considering this development. Perhaps many of them combine into a single, big, question: Why? Was the existing set of laws problematic, and if so, then in what way was it problematic? Were the Codes failing to strike a just, fair, and reasonable approach to questions on defining and punishing crime? Were the structures proving to be outmoded given the fast technological pace of society? Or, all of the above?

None of these questions have uniform answers, or objective positions. One can only speak for oneself. In that regard, I would unhesitatingly state that the 19th Century Colonial Codes (or their 20th century avatar in case of the Cr.P.C.] were deeply problematic and required a brutal re-examination. A comprehensive study of how courts had interpreted the clauses across these Codes was required to update the statutory position. The archaic language of the IPC required revisiting, its punishments needed streamlining, and the general law of crime required to be harmonised with the burgeoning field of laws defining specific crimes. Far more important was the need to tear down the Cr.P.C. and IEA and rebuild again to solve what the most pressing concerns of the criminal process, which have been rotting it from the core since independence (and even before): delays, significant pre-trial incarceration rates, and a complete surrender of personal liberty and privacy to batons and lathis wielded by the police.

The fainthearted would be pleased to note that none of this has come to pass. The Codes are dead, but they gloriously live on in the BNS, BNSS, and BSA. What we have just witnessed is a grand sequence where the villain sheds an exoskeleton to assume a more monstrous form appropriate with the times. In other words, the new Sanhitas do not offer a new perspective on administering the weighty notion of 'criminal justice' for an independent, democratic, republic as we were promised, but merely offer a shiny new vessel to sustain the beating heart of colonial ideas that the Codes represented. 

With that sombre prologue out of the way, it is time to look at what appears to be in store for us.

Repeal and Savings

Now that the new laws are almost here, arguably most important is the question is what happens to all that was done under the old laws? When it comes to offences themselves, the constitutional prohibition of any criminal liability retrospectively allows us to assume that the new BNS offences (deceitful sexual acts; terrorism; organised crime, etc.) will not apply to acts done on a date prior to the date when the BNS is brought into force (whenever that is). However, at the same time experience has taught us that things are never straightforward when it comes to interpreting law. The iron-clad prohibition of Article 20(1) may be done away where offences are continuous, and so we may still be presented with situations where prosecutions are brought under the BNS for acts which began prior to the date of its enactment but continued subsequently to create an unbroken chain of conduct. In respect of acts that were offences under the IPC but are not covered by the BNS, even as the BNS repeals the IPC, nothing in the BNS overrides application of Section 6 of the colonial General Clauses Act 1897 which ensures that such prosecutions do not automatically lapse. So while there is no Section 124-A IPC prosecuting sedition, or Section 377 IPC prosecuting unnatural sexual acts, existing cases would not die a natural death. Similarly, till such time as other laws are amended to erase all presence of the colonial IPC from the statute books, we would have to keep referring to Sections 6 and 6A of the General Clauses Act to make sense of how will such references to the IPC be read [think the PMLA schedule, for instance].

When it comes to the Cr.P.C. and IEA, the general rule being created with repeal is that the entry of the BNSS / BSA will not disturb pending investigations, inquiries, trials, or appeals. However there will certainly be cracks which lawyers will explore to try and make use of. For instance, what happens to a case where the police filed a closure report and it has been accepted, or a case where proceedings have been terminated prior to the enforcement of the BNSS, and the aggrieved party now wishes to revive the litigation. What about cases where the police registers a fresh FIR invoking slightly different offences to now make use of the broader remit of police custody? Would these count as 'pending' cases? Or, what happens for a case that is closed for non-appearance of a person who was declared a proclaimed offender - would it be possible to revive such a case using the new BNSS clauses allowing for trials in absentia? These are only the easy examples, and I am sure more tricky ones will come up in the next few years. Courts will want to turn to the years after the 1973 Code was introduced in 1974 to see how some of these issues were dealt with back then (although many of those dealt with retrospective application of the new Cr.P.C. clauses that enhanced the sphere of liberty, rather than truncate it further).    

Even though the BNSS declares that pending cases / investigations / inquiries will be governed by the Cr.P.C., this is not going to prevent serious changes to their working because the BNSS carries out serious changes to the administrative structures of our courts. I refer to the abolition of the cadre of metropolitan magistrates altogether in the BNSS, without any provisions accounting for how areas where this system is in vogue (Delhi, for instance) will carry out the transition to now erect a new system with Chief Judicial Magistrates, First Class Magistrates, and Second Class Magistrates. One wonders how this transformation will be carried out, and whether it will give rise to service law related issues if metropolitan magistrates — who are at par with First Class Magistrates under Cr.P.C. — will be divided up into the two categories. 

Changes to the Criminal Process

For most practising lawyers, what really matters is whether, and how, the rules of the criminal process are being altered by the introduction of the new laws. This post looks at some important changes in this regard that have been introduced. Note, however, that it does not look at specific issues that are going to arise because of, say, the introduction of offences in the BNS that are at present criminalised through special statutes with special procedural regimes. Nor does it look at specific issues arising within the realm of preventive powers of police and magistrates.  

Arrest, Custody, and Bail

There are small tweaks in the arrest provisions of the BNSS from the Cr.P.C. regime, besides the sorry re-introduction of handcuffing. There is hardly any change when it comes to the issue of granting bail in non-bailable cases — either in terms of the guiding judicial discretion in this process, or by reducing the number of non-bailable and cognizable offences. There is rather slight confusion introduced because of the tweaks between the first and final versions of the BNSS. The key changes here are, firstly, to the legal regime on custody post arrest during an investigation, and secondly to granting default bail where a person has spent a significant time in prison as an undertrial.

On the former, the BNSS appears to have done away with the limits on police custody being restricted to the first fifteen days after arrest to allow it within a period of the first forty or first sixty days after arrest. What is more uncertain is whether the BNSS has also done away with the maximum limit on police custody being fifteen days. If so, then it would signal a significant shift in the legal position which has had the duration of police custody capped on fifteen days since even prior to the 1973 Code. The wording of the BNSS clauses would make it seem that the absence of 'police' custody in Section 187(2) of the BNSS is not deliberate but an inadvertent omission. It would, nevertheless, be clarified only after some person suffers the consequences, and courts rule on the issue. Unless parliament acts proactively - which as the passage of the BNSS shows us, it certainly can.  

Why restrict police custody, and what is the consequence of removing the shackles so to speak? A colonial and post-colonial learning about the administration of criminal law in India has been that the police resort to unfair practices to solve a case. This involves extracting pressure on people in their custody to make a false statement. Enhancing the period to take police custody proportionately raises this risk, especially as this enhancement is being conceived of without any increase in the rights of the detained person. Placing a limit on police custody as being available only in the first fifteen days furthers a separate goal of ensuring that the police work with promptitude. Removing this limit takes away any incentive for the police to try and solve cases quickly. This would mean that more and more investigations only end when nearing the upper limit of 60 or 90 days — cementing the perverted turn over the last fifty years (and manifesting the fears of legislators) where ceilings that had been installed by the 1973 Code became default periods for the investigation to complete.        

The extension of police custody also has an impact on bail. In practice, courts are reluctant to grant bail if it appears that custodial detention is required to secure some investigative purpose. Most lawyers thus do advise clients to wait till the first fifteen days expire, or police say that they do not require further custody. Now, police will have a card up their sleeve to invoke custodial detention at any stage during the period of investigation, creating a practical difficulty for courts who had become used to working a certain way. It would require re-programming how courts view these claims if we are to ensure that two / three months without bail do not become default periods of incarceration in all cases.  

In respect of bail, one must mention the lip-service paid to the Supreme Court's endeavours in Satender Antil. The BNSS changes provisions that were being interpreted in some states as mandatorily requiring an arrest before the chargesheet was filed in court, which was what started the litigation in Antil. However, as we know, Antil went far and beyond that to suggest policies on guiding judicial discretion for bail. None of that has made its way into the statute. What the BNSS does do is bring in significant changes in respect of the provisions on default bail. Currently, Section 436A of the Cr.P.C. carried a rule where a person was entitled to bail if she had spent a time in custody that was equivalent to half the maximum possible punishment for a crime. Lets be clear — 436A was not a ringing endorsement to liberty, but a damning hang-your-head-in-shame indictment of the legal process. Section 479, BNSS reduces this period undergone to one-third of the maximum imprisonment but only for 'first-time offenders' [not 'offenders' for undertrials]. But what one hand giveth, the other taketh far more. Section 479 carries a new explanation which excludes persons against whom there is an "investigation, inquiry, or trial in more than one offence or in multiple cases". Make no mistake, this is the overwhelming majority of persons who are ensnared by the system. Practically every FIR has more than offence invoked if you add conspiracy to the mix. Thus, in other words, the BNSS renders 436-A practically redundant, and replaces it with a rule that such undertrials can be released if they have already served out the maximum possible term of imprisonment.   

Investigations and Inquiries

The big-ticket declamations on the floor of the House and outside were the introduction of technology in how police conduct investigations and inquiries. A close look at the BNSS reveals the hollowness of the claim. The bogey is made apparent by the extension for police custody remands and confirms that what the BNSS does is continue how investigations have been (and arguably makes them poorer by encouraging police to rely on custodial interrogations more) whilst using technological means to smooth things over at times. For instance, allowing statements to be recorded over video by police during investigations, or by recording the conduct of a search. Again, this shows that the BNSS does not change how investigations are being done. If anything, this can add to troubles later, because there will be doubts during trial as to reliability of what has been recorded as standardised practices will not easily emerge given vast disparities of funding for police stations across India. A real commitment to introducing technology would mean the introduction of provisions in the BNSS that regulate the practice of agencies when it comes to seizing our personal devices and rummaging through them on the pretext of an investigation to safeguard privacy, but of course the BNSS is silent on all that while simply expanding the scope of what material can agencies demand persons to give and include electronic devices / electronic communications [Section 94, BNSS].   

Another noteworthy addition is a set of provisions allowing for seizure of property. This is Sections 115 to 122 of the BNSS. This introduces new powers for police officers to effect seizures and even provisional attachments of property [Section 117] and allows for forfeitures of property where a court concludes that these are proceeds of crime even though the trial has not concluded, without specifying any rights for the aggrieved to challenge orders or specify what happens if the trial results in an acquittal. In this fashion, the BNSS may have impliedly repealed the Criminal Law (Amendment) Ordinance of 1944 and replaced it with the broadest civil forfeiture regime ever seen in Indian law, that is modelled on provisions tried by certain states in context of corruption crimes. Provisions which, though deeply problematic, were blessed by the Supreme Court in 2015 [Both the 1944 Ordinance and the 2015 judgment have been discussed on the Blog and elsewhere]. 

There are some crucial new provisions on registration of cases. Practices that had been in vogue for years i.e. the registration of FIRs online and the registration of 'Zero FIRs', are now given statutory force with Section 173 of the BNSS. At the same time, the BNSS dilutes and further muddles the legal position on the very concept of registering an FIR. It gives statutory backing to the police conducting preliminary inquiries for a category of cases (punishable for three years but less than seven years) and determining if a 'prima facie' case exists. If it does exist, then they proceed to investigate. But if not, then what? Logically, they do not investigate. Which then begs the question, what about all other cases — would they be lodged on the basis of some non-statutory inquiry showing existence of a prima facie case? What does that mean for the idea that the police must register FIRs? Again, it is not that the BNSS drafters were helped by the Supreme Court's take on these issues in Lalita Kumari either [critiqued on the Blog]. But what they have done is only make things worse.

There are even more innovations when it comes to registration of cases against certain persons — public servants. The final version of the BNSS does away with some provisions in the earlier draft published in August, but it retains a mighty set of new protections in Section 175 insulating public servants from police investigations being directed by magistrates on the basis of private complaints. This is reiterated when it comes to private complaints filed against public servants directly in court [Section 223] Here, the BNSS has taken a step on an issue which was pending before the Supreme Court after its M.K. Aiyappa decision which had sought to introduce such a protection was referred to a larger bench. It has gone above and beyond even what M.K. Aiyappa envisaged by giving the prospective accused a right to be heard before start of a case. In a setup where prior sanction was already required to instituting prosecutions, introducing this rule only blunts the idea of holding those in power accountable to the public even further. 

Lastly, in respect of completing investigations, a notable addition has been the introduction of some time limit within which further investigation must be completed unless extended by courts [Section 193(9)]. This is a useful addition, which at the same time makes one wonder why not introduce such a clause for completing investigations generally. The answer, as most lawyers know, is because that time limit has long since been seen in Section 167 Cr.P.C. [now 187 BNSS] which directs release on bail unless investigations conclude within 60 / 90 days, making 60 / 90 days the usual time for investigations to conclude. Again, this was, and is a gross misreading of what the law required — 60 / 90 days was the upper limit, which has become the usual course of time for investigations to conclude only because police know they must file something to avoid release on bail. Furthermore, Section 193 requires some communication to victims about the progress of investigations, which is hailed as some revolutionary step since this was absent in the old Section 173 Cr.P.C. In reality, it is a cop-out, and a failure to incorporate mandates of the Supreme Court which require copies of the Chargesheet (or Closure Report) filed by police with victims so that they can pursue their remedies. Adding the requirement to share copies at a post cognizance stage, as the BNSS does, worsens the position of victims by only entitling them to copies where chargesheets are filed but not allowing them to clearly contest the failure of police to do proper investigations by filing protest petitions. 

Trials and Appeals

A case will end in three years under the BNSS was the battle-cry. Well, so what is the response? NCRB data shows that many cases already end within three years. It would be quite something if all cases will end within three years was the claim on the floor of the House. Which, obviously, it was not. And cannot be either, because like all other parts of the BNSS, its parts on governing trials and appeals also retain the beating heart of the Cr.P.C. process while tweaking a few things here and there.

The sales-pitch changes here were time limits and introducing provisions for conducting trial even when an accused obstructs the progress of a trial by refusing to show up, where currently such cases would have to be kept in cold storage as there is nobody to condemn. Let's take both of these in turn. The only time limits are on conducting arguments on charge—for sessions triable and warrant triable cases instituted on police reports, but not warrant triable cases on complaint or summons triable cases—and on pronouncing judgment. There are no time limits on conducting evidence. This begs the question "Was argument on charge or pronouncement of judgment a stage which took so much time that placing time limits on it will solve delay?" The answer, obviously, is no. Arguments on charge in most cases do not take long. Similarly, judgments are pronounced with promptitude and where they cannot be so pronounced the Cr.P.C. allows for a court to release an accused on bail. Where it does take time for courts to hear such arguments or write judgments is where state agencies register FIRs against 40 people based across the country on some amorphous notions of them being involved in a 'larger conspiracy' and file Chargesheets with documents that run into ten thousand pages. And, make no mistake, since the BNSS does not change how such cases are investigated, arguments on charge in 'larger conspiracy' cases that the agencies love will continue to take much longer to finish than the few months that the BNSS has in mind, as will writing judgments at the end of such trials. 

In short, the marginal gains by introducing these time limits are imaginary at best. Especially if we take a look beyond cases instituted on police reports to cases instituted upon complaints. Here, fresh avenues for delay have been created by giving accused persons a right to be heard where previously none existed. Section 223 prohibits taking cognizance on any complaint without giving such an opportunity, and Section 274 provides a fresh right of hearing before framing notice / charge in summons triable cases. Of course, what seems a provision for delay to the victim will be heralded as a boon by defence lawyers to nip false cases in the bud. But, ultimately, it is unquestionable that such cases will take longer under the BNSS. 

Studies conducted by the government and judiciary itself have shown that the real stage which takes time in a case is recording evidence. Time limits or schedules to finish this process are not introduced. What the BNSS does is introduce a peculiar provision [Section 336] which allows for recording evidence of 'successors in office' when the original government officer who prepared a report is unavailable. This even includes police officers. The provision has been retained in the final version despite criticism by the Select Committee; and, naturally, the ceremonial debate on the floor of the house did not explain why this is the case. It pains me to say this, but in a bid to rush reform, the government appears to have sponsored a move that would encourage acquittals by asking that prosecution leads incompetent evidence of witnesses who are not the authors of documents to sustain its charge. 

Which brings us to the second major reform under Section 356 of the BNSS. Conducting trials against a person who has absconded is, thankfully, not a bludgeon. It appears to create a procedure that needs some application of mind before a court proceeds on that path, and allows for the decision to be revisited once an accused does show up either voluntarily or after being apprehended. I say 'appear' because it is unclear exactly how the procedure will operate. What is meant by giving the accused an opportunity to 'examine' evidence? What impact will conducting trials on mobile phones have on the reliability of what has been recorded? What will be a constitutionally compliant reading of sub-clause (8) which allows extending the clause to any absconder by notification? A well-drafted code would not leave all this up for grabs. 

Execution of Sentences

Despite the Select Committee recommending some more clarity on community service as punishment, no such clarity came in the final version of the BNS or BNSS that have now been passed except for helpfully telling us that community service is punishment that benefits the community [Section 23, BNSS]. So much for a new dawn.

There are two other important developments in respect of the execution of sentences which I would want to mention here. First, we have legislative sanction for imposing solitary confinement [Sections 11, 12, BNS], allowing it to be granted in any case where rigorous imprisonment is imposed for a sentence of six months or more in prison. In other words, practically any convict may be subject to solitary confinement. One wonders if this is in consonance with Article 21 and its reformative ideals. 

Second, we have a procedure outlined for filing mercy petitions [Section 472 Cr.P.C.]. In theory it is not a bad idea as it now allows every convict to know that such a right exists and how it is to be availed. The devil, as always, lies in the details. There are unnecessary restrictions on who may file such a plea on behalf of the convict. More potentially problematic is the idea that there is a time limit of thirty days on filing such plea based on when the convict is informed by jail authorities of the rejection / dismissal of her petition by court. That the statute does not clarify that the intimation must be clearly recorded in writing and must be communicated separately to family members / counsel is startling, considering what is at stake and knowing that there will be precious time lost in the convict informing the persons on the outside who will study the order and frame the plea. Or, perhaps it is not so startling, given that the statute allows for practically all convicts to be subjected to solitary confinement for up to a week if not more.

Summing Up: Little Reform Amidst much Posturing?

Many commentators found it difficult to describe a system comprising of the existing trifecta of the IPC, Cr.P.C., and IEA as a system of 'criminal justice'. It is quite unlikely that they will find it any easier to do so with the BNS, BNSS and BSA triumvirate that will soon be upon us. There is little reform in these pages amidst the posturing, if we stick to the classical notion of reform as a measure which seeks to improve the lot of the individual. Rather, in sync with the communitarian ideologies in vogue today, the emphasis of these laws is to strengthen the already powerful state by enhancing police powers while reducing the scope for liberty. 

Such an approach is expected from a government which places duties before rights, demands that citizens do not question but obey, and treats all those who do question as potential threats to the stability of society and thus wants as much power as possible to adequately deal with the threats to restore stability. To use a now infamous analogy from another era in India's past here, these are laws to ensure that the trains run on time.    

Worryingly enough, once the dust settles, I wonder if the very fact that the BNS, BNSS, and BSA do not attempt any meaningful reform will ensure that they manage to embed themselves within the system without evoking fervent protests from various quarters. The baseline for acceptable incursions by the state into a citizen's life and personal liberty having been lowered even further will probably stop mattering after a while, since it was not very high to start with.

[Repost] — On the Draft Criminal Codes

[This post first appeared on VerfassungsBlog]

 

On August 11, the last day of the ongoing session of Parliament, the Indian Government tabled a notice that it wished to introduce three new bills on the Floor of the House for consideration. These were proposed statutes to replace the holy trinity of Indian criminal law: The Indian Penal Code of 1860, the Criminal Procedure Code of 1973, and the Indian Evidence Act of 1872, were to be replaced by the Bharatiya Nyaya Sanhita, the Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam respectively.

 

Even though the reform was marketed as an attempt to break from the colonial origins of criminal law, it actually represents a resurgence of the colonial-style authoritarian approach, rather than an effort to build upon the relatively modest progress made half a century ago in advancing individual freedom and civil rights.

 

For now, these draft laws have been sent for consideration to a Legislative Committee and may yet fall by the wayside as India heads into a general election in 2024. Nevertheless, the development is arguably one of the most significant legislative developments on matters of criminal law in India for at least half a century and deserves greater scrutiny.

 

 

How did we get here?

 

That the ruling BJP government wished to ‘reform’ the existing criminal law architecture had been no secret — it was part of announcements made soon after re-election in 2019, followed by the formation of a Committee for Reform of Criminal Laws to helm the reform process in early 2020. One would have imagined that the imposition of one of the strictest lockdowns globally to deal with the spread of Covid-19 would have put this process on hold for the time being. However, in spite of this, at the end of May 2020, the Committee suddenly announced the start of an online consultation process, consisting of responding to questionnaires within relatively short timelines (which were slightly relaxed after an initial outcry).

 

The highly exclusive nature of this consultation exercise, given India’s average income, coupled with the apparently biased nature of the questionnaires, left anyone hoping for a truly democratic and participatory process of law reform severely disillusioned. In the three years that followed, no reports were published by the Committee, and no responses to the questionnaires were made public, but periodic news reports suggested something was afoot. But even so, there was hardly a whisper in the media that any draft laws had been prepared pursuant to this reform exercise, let alone drafts ready enough to be tabled in Parliament. Understandably, therefore, the introduction of draft laws on the last day of the Parliament session garnered considerable attention.

 

How was the ‘Decolonisation’ Attempt Received?

 

A primary, if not the only, prong for the government to justify replacing the existing trinity of laws appeared to present it as a ‘decolonisation’ or ‘indigenisation’ effort [even the word ‘Code’ or ‘Act’ was dropped in favour of heavily formal Hindi which is the dominant language in North India and one of India’s many official languages].

 

The Minister, while introducing the drafts, declaimed that the old laws were colonial impositions — even though the current Procedure Code had been enacted in 1973 — and replacing these with indigenous laws was to celebrate the spirit of India’s independence. Not to mention the pragmatic necessity of bringing newer laws that not only incorporated the impact of many judicial verdicts interpreting the old codes but also make the law more responsive to a vastly different societal context than the 19th century. For instance, it was stated that the colonial offence of sedition, the legal validity of which is currently pending adjudication before the Indian Supreme Court, was being repealed.

 

In the few weeks that have passed by, even those who were on the Committee have found it difficult to shower fulsome praise upon the draft laws, and their reception has been largely critical. That the laws offered precious little in terms of new ideas for a new India was made painfully apparent in how little was changed from the 19th-century colonial codes [see here for annotated comparisons with the earlier laws]. Claims such as the repeal of sedition were discovered as being falsehoods, as the existing offence was given a broader and more rights-effacing avatar than its colonial ancestor. The consensus view emerging so far is that repealing existing laws and introducing fresh ones would not only achieve very little reform but do so at the cost of throwing the entire criminal law administration into disarray for years to come.

 

Critiquing the Draft Laws

 

Having offered this brief roundup of the intriguing developments that reflected the opacity of the process by which the new draft criminal laws came to be introduced for discussion, I move to critique the re-codification exercise on two broad parameters. First, focusing on the procedural code, I argue that the effort embraces the colonial and anti-constitutional aspects of the existing Indian criminal codes; it continues the failure of the criminal laws to respect that very basic change in the citizen-state dynamic ushered in by India’s independence and recognition of fundamental rights. Second, the effort displays a startling lack of understanding about codification as a legislative and or law-reform exercise and worsens the status quo on matters of clarity as well as application.

 

The Constitution and Criminal Law

 

The idea to replace or reform the existing Indian criminal codes is not unsound in theory. What lies at the heart of the existing trinity, and is best highlighted through the Procedure Code of 1973, is a culture of command and control that was necessary to run a colony, covered with a veneer of legality in the form of legal rules constraining the exercise of discretion by state actors.

 

The police are conferred with broad powers of arrest with scope for seeking detention in police custody for up to 15 days (section 167), with no general right of bail for all crimes. No rules of probable cause govern searches, with the law explicitly authorising the issuance of general warrants when deemed fit. Not to mention the existence of a sprawling set of preventive powers, enabling the police machinery to arrest and detain persons for being threats to public order (section 107, for instance).

 

These executive powers contained some self-defined legal limits to suggest there was a rule of law approach in place. But the so-called limits permit retention of unbridled executive power, with little or no recognition for basic civil liberties. For instance, the introduction of the search and seizure regime in 1882 was accompanied by an explicit acknowledgment by the administration that the rules for the colony were far broader than anything in the metropole as the colonial law was not concerned with issues of privacy. Any challenges to the alleged improper use of executive power would remain confined to an administrative law logic, requiring courts to defer greatly to the actions of the boots-on-the-ground. .

 

The limited respect for civil liberties, coupled with a limited scope for judicial review of executive action, remained hard-wired within the statutory text even as they went against the constitutional logic. Retaining the existing colonial criminal codes with their culture of command and control while ushering in a new constitutional culture of justification was thus a serious contradiction in terms. Would the old order relent to the new? The answer was a resounding no and it was apparent before the end of the first decade of India’s independence that the police, so long seen as ‘bully boys’ of the Raj, were not becoming the ‘willing servants’ of the new citizens of India.

 

The retention of old attitudes was made possible by a belief in those at the helm of affairs — across all branches of the State — to see newfound in the oppressively powerful state machinery which they had fought against not too long ago. A strong executive was necessary at a time when the country was yet to stand on its own two feet, and rather than focus on asking questions, citizens ought to trust those in power who were guided by the law. In this 'trust us’ mould of reasoning, the old features of oppression within legal structures were dissociated as being problematic facets of State power, to being problematic because they were used by a colonial power.

 

Combating this logic and placing curbs on executive power while widening independent judicial review were some of the driving motivations behind the push for a new criminal law architecture in the 1960s, a movement that ended with the new Code of Criminal Procedure, 1973 being enacted in 1974 (with moves for substantive changes to the Penal Code and Evidence Act falling through). While there were a few significant additions to protect individual liberty in the new Procedure Code, by and large the scheme of the old colonial law was retained, especially on matters of arrest and bail and preventive powers to keep the peace.

 

In the 2023 draft law to replace the existing Procedure Code, it is unsurprising and disheartening to witness a renewed embrace of the colonial culture of command and control rather than an effort to build upon the significant, but few, moves made fifty years ago to claim more space for personal liberty and civil rights. If anything, calculated moves have been made to reverse some of these gains, for instance by expanding police powers for obtaining custodial detention before an indictment is laid (section 187 of the draft) and enabling trials (section 356) and property confiscations (section 107 of the draft) in absentia without little recourse in the event of improper use of such powers by the state. Despite the crisis of prolonged undertrial incarceration no efforts have been made to widen the scope for bail and judicial discretion while deciding such question, which continues to implement a legal regime enacted in 1923.

 

The chasm between the constitutional culture of justification and the wild-wild-west of criminal procedure could not be starker in how the new drafts seek to expand the already enormous search and seizure powers (yes, general warrants are still there) without adding any limitations on exercise of the powers (sections 94, 96 of the draft). Since it comes after a landmark Supreme Court ruling in 2017 affirming that the Indian Constitution protects a fundamental right of privacy, the message is loud and clear — there is no change to the place of citizens in the constitutional order as compared to those of subjects under colonial rule.

 

The Promise, and Premise, of Codification

 

Codification as a legislative or law reform exercise carries a rich and extensive history (especially across the European continent). The idea stems from a recognition that the existing morass of law is too disorderly and ought to be replaced by a comprehensive code which can speak to both the public and the professionals involved in the administration of justice with equal clarity. Once in place, the code requires periodic revisiting and updating for it to remain true to its ambition.

 

Since the landscape of law in India had indeed undergone tremendous transformation over the 150 years since the criminal codes were first brought in place, it made sense to revisit the codification effort. The language and structure of the codes was archaic and outdated. More importantly though, the general law of the codes gradually came to be surrounded by a thicket of special laws that dealt with different kinds of crime besides punishing aggravated forms of the same kinds of harm while introducing special rules (by and large liberty-reducing) of procedure and evidence (such as laws punishing terrorism, drug possession and sale, child sexual abuse, money laundering, corruption, food adulteration, etc.).

 

Revisiting the codes to make them more accessible and for harmonising the interplay between the general and special parts of criminal law are great ideas, even if these come at the cost of some administrative upheaval. Sadly, the new draft laws achieve a fraction in terms of the former goal and probably worsen the position in terms of the latter.

 

A look at the three proposed replacements shows that while considerable effort appears to have been made in redrafting the Penal Code, this has not been thought through, leaving rather basic problems. For instance, ‘insanity’ has been replaced by ‘mental illness’ (section 22 of the draft), but this has been done without changing the actual test for determining when a person can be declared as suffering from ‘mental illness’ to trigger the excusatory defence. Rather than redrafting, it is perhaps more accurate to say that the Penal Code has been rearranged. Even such rearranging is practically absent when it comes to the codes on procedural law and evidence, even though the evidence law was crafted for a setup catering to trial by jury (or assessors), which are not a part of the Indian setup since the 1960s and were formally ousted in the 1973 Code.

 

A cache of laws dealing with specific offences has sprung up alongside the codes and streamlining the machinery of criminal law administration across the general and special parts should have been a mainstay of any revisit of codification in India today. What we find instead is a deafening silence on this front, casting indelible doubts on the reform credentials of this endeavour. There is neither a trimming of the vast expanse of the general part offences nor any considered assimilation of the special part with the general part. Instead, the uneasy and confusing coexistence of the two shall continue, with more overlaps than before by introducing proposed offences punishing terrorism (section 109 of the draft) and organised crime (section 109) in the general part itself.

 

Nor is there any effort to clarify the vagaries of procedural and evidentiary rules across the vast savannah of special part statutes, which have fostered immense litigation over time and continue to do so. Are officers enforcing these laws akin to police? Are the reverse burdens imposed by them even applicable at the stage of bail? How does the right against compelled self-incrimination apply in these contexts? What is the position of victims across these statutes? How is jurisdiction determined? At present, answers to such questions which routinely arise in the application of special part statutes are context-specific and determined by arbitrary turns of phrase rather than any clear legal policy (see, example, here). If a codification attempt ignores such fundamental questions, one wonders if it is of any use at all.

 

Conclusion – All Hands On Deck

 

The proposed draft laws seeking to replace the existing Indian criminal codes are the outcome of an incredibly opaque and inscrutable process helmed by a committee that had no representation of persons from minority communities most directly affected by the enforcement of criminal laws and had one female member who was a government appointee. The Committee adopted arbitrary consultation processes, the government publicly adopted none except appointing the Committee, and not a single report out of the drafting process has yet been made publicly available to enable any meaningful debate or discourse.

 

There are many problems with the content of the new draft laws proposed to replace the existing criminal codes. The internet has had a field day with its incomplete sentences and glaringly obvious errors (an excusatory defence of involuntary intoxication appears to excuse any harm caused after voluntary intoxication, as seen under section 23 of the draft). These are problems that can be fixed. What cannot be fixed, is the clearsighted and unequivocal embrace of the colonial logic of command and control displayed through this set of draft laws. It is yet another instance of what Mehta suggests is an ongoing effort in India to retain the exclusionary authoritarian structures of colonialism, but colouring those power-imbalances with an Indic flourish to somehow legitimise them.

 

The 2023 draft laws constitute perhaps the most obvious transgression of India’s constitutional promise to instil a culture of justification for safeguarding civil liberties since the retention of permanent laws for executive detention without trial (or, preventive detention). To accept that the draft laws are part of a reform effort and an attempt to rid the country of its colonial past is to disbelieve the evidence of one’s eyes and ears. If pushed through, they shall undoubtedly worsen the existing power-imbalance between the state and its citizens, not to mention worsen the status quo in respect of applying and administering criminal law. All hands on deck will be needed to spread awareness about the many problems of these new draft laws and hope that the idea can be sent back the drawing board, and not become part of the statute book.