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A design to 'communalize' judicial process, Sanskritize nomenclature of legal provisions

Union home minister Amit Shah introducing the bills
By Kirity Roy* 
In the name of denouncing the colonial criminal laws in the country, the present Union government introduced and subsequently sent the three new bills to the Parliamentary standing committee, while changing the erstwhile legal provisions named as Indian Penal Code, 1860; Criminal Procedure Code, 1973 and Indian Evidence Act, 1872 to Bharatiya Nyaya Sanhita; Bharatiya Nagarik Surakshya Sanhita and Bharatiya Sakshya Bill.
The human rights fraternity of this country along with international partners intend to change the content of these legal provisions set during the colonial times; not only the nomenclatures of these provisions.
Section 150 of the Bharatiya Nyaya Sanhita, 2023 shows that the word ‘sedition’ has been removed but the spirit of the sedition law is very much existent in the new section. At any moment of time when the governance has the ultimate authority to determine an act/ observation/ opinion/ association as anti-national or against the integrity of the nation as ample opportunity to use this draconian legal provision against any dissent.
Section 150 of the new Bharatiya Nyaya Sanhita Bill details the codes while discussing the acts, which are endangering the sovereignty, unity, and integrity of India. It states: 
“Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”
The uttered position is not different to the original position in Indian Penal Code under section 124A in letter and spirit.
The explanation of the law appears incomplete. And it brings into its purview the potential to criminalize protests against any action or inaction of the government authority. The use of words ‘subversive activity’ is not only vague, it restricts the democratic activities denouncing the government’s policies and actions.
This is a direct attack on the fundamental constitutional rights of the citizen of India. The Constitution of India guarantees the right to protest under Article 19 (1) (b) and is a basic fundamental freedom incorporated by the makers of our constitution which is being demolished with this new section. The dissenting voice and the human rights defenders are at stake.
The new criminal bills also introduce new offences with stricter punishment. Section 111 of the Bharatiya Nyaya Sanhita incorporates new crime as the ‘terrorist act’ under general penal law. For dealing with terrorist activities there are special laws like UAPA (Unlawful Activities Prevention Act, 1967) but here the features of UAPA are very much existing in the new penal provisions presented by the government.
To define terrorist acts it explicitly refers under section 111 (1) (iv):
“To provoke or influence by intimidation the Government or its organization, in such a manner so as to cause or likely to cause death or injury to any public functionary or any person or an act of detaining any person and threatening to kill or injure such person in order to compel the Government to do or abstain from doing any act, or destabilize or destroy the political, economic, or social structures of the country, or create a public emergency or undermine public safety.”
This definition is vague as well echoing the same position which is in the existing special provisions. It can be misused by the government authorities to take vengeance against the opposition, human rights workers and dissent voice who will try to raise their opinion against the government.
Use of words subversive activity is vague, it restricts democratic activities denouncing the government’s policies and actions
When most of the civilized countries of the world stand in this 21st century to abolish death penalty for all crimes in accordance to the Optional Protocol II of the ICCPR, the Indian government who will preside over the 18th G-20 summit in the next month along with other countries has put death penalty in the new bill for crimes like mob lynching. On changes in provisions related to rioting the provisions proposed regarding rioting are clearly and deliberately intended to have a communal twist with a slanted mindset.
These three bills denounce the basic concept of the Indian Criminal Jurisprudence i.e., “assume innocence until proven guilty”. Supreme Court in its various judgment clearly denounces handcuffing and roping (Prem Shankar Shukla vs. Delhi Administration 1980 SCC 526 / Citizens for Democracy vs. State of Assam and others-(1995) 3SCC743) but the present Bharatiya Nagarik Suraksha Sanhita allows the savage act of handcuffing for the arrest of persons in many cases including murder, rape and counterfeit currency.
The manner of introduction of these three bills is also not proper. The bills were introduced on the last day of the monsoon session leading to inadequate consultation in the Parliament regarding these bills. These new elements related to the judicial process should have been placed before the law commission prior to tabling it before the parliament. By this act, the present government made it clear that they wish to supersede and bypass the legal fraternity and process.
These changes in the criminal justice administration system can be dubbed as pseudo-progressive change. This act of the present government is a sinister design to communalize the judicial process of the country by Sanskritizing the nomenclature of the legal provisions, which is undemocratic and colonial in nature. The present social-economic legal situation of this country demands a democratic change in these legal acts, provisions and procedures.
Therefore, we on behalf of MASUM, call upon every academic, individual, member of political parties, NGOs, CBOs and organizations to come forward and discuss the intended changes for a constructive and democratic discourse on the present legal provisions and protest against the government’s constant attempt to suppress the dissenting voice.
*Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM); national convenor, Programme Against Custodial Torture & Impunity (PACTI), Hooghly



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