The Parliament of India recently enacted the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Sakshya Adhiniyam, 2023, and the Bharatiya Nagarik Suraksha Sanhita, 2023 respectively to replace the Indian Penal Code 1860, the Indian Evidence Act 1872, and the Code of Criminal Procedure 1973.
During the discussion on the Bills in the Lok Sabha, the Union Home Minister Amit Shah stated, “We are about to eradicate all signs of the shackles of our colonial past and of our slavery and create completely Indian criminal laws.” Let us examine the truthfulness of his assertion by analysing each of the 3 laws.
Is the Bharatiya Nyaya Sanhita, 2023 any different from the Indian Penal Code, 1860?
The ancient Indian civilisation had its own criminal justice system. The Islamic invasions not only disrupted the society in every which way but also implanted into the soil some elements of diverse system in the administration of justice. After the British East India Company acquired political authority, the administration of justice became one of its important activities. As the system then prevailing was so disparate and given to all sorts of problems, there was an imperative need to codify the criminal laws for their uniform application and dispensation of justice. The British East India Company officials found that even though the official penal law and legal system was essentially Islamic Hanafite law due to the preceding Muslim rule, the Hindu laws and practices were ubiquitous since the population was predominantly Hindu. During the course of administration of justice, the British regarded the Mohammedan criminal law as inconsistent, either cruel or too lenient, which was repugnant to natural justice.
Therefore, the British began inquiry into the Hindu law and several law codes of ancient India including Manu Smriti, Yajnavalkya Smriti, Brihaspati Smriti and Arthashastra. The Manu Smriti – an epoch in the legal history of India contained not only the ordinances relating to law but also a complete digest of the laws, customs and usages observed by the people. It discussed crimes at length and classified them into several heads such as crimes against property, human body, reputation, society and the king covering almost entire gamut of crimes. While meticulously working out the principles of individualization of punishment, the Smritis also laid down differential penalties for different crimes. The Smritis prescribed four methods of punishment namely, gentle admonition, severe reproof, fine and corporal punishment which includes imprisonment and capital punishment. They also ordained that the punishments may be inflicted separately or together. However, the type, quantum and severity of punishment must be guided by (i) the nature and gravity of the crime, (ii) the time and place of the crime, and (ii) the strength, age, sex, avocation and wealth of the offender.
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The Indian Penal Code, 1860 was the culmination of decades of painstaking study of the prevalent laws and the legislative efforts of several British colonial administrators and jurists. Most notable among them was Sir Barnes Peacock followed by Lord Thomas Babington Macaulay, in that order of their contribution. Is there any who think that the striking resemblance between the principles and contents of the Indian Penal Code, 1860 and those enunciated in the Manu Smriti, Yajnavalkya Smriti, Brihaspati Smriti and Arthashastra is happenstance? Given the long history of plagiarisation of vast body of Hindu knowledge by the Arabs and the Europeans, it certainly is not. Not for nothing, the Indian Penal Code, 1860 is by far the most important and major substantive Indian law. It is so precise and comprehensive, as the Hindu Smritis from which it is derived are, that it has been amended only sparingly since its enactment 163 years ago.
In the past 163 years the courts, lawyers, administrators, law enforcement officials and the general public became so familiar with various sections of Indian Penal Code that even some of its sections such 420, and 302 have become part of common lore evoking immediate connection to crimes. There was even a Hindi movie titled ‘420’. The new Bharatiya Nyaya Sanhita, 2023 destroys this institutional memory and common lore making it difficult for all without any commensurate public good.
Is the Bharatiya Sakshya Adhiniyam, 2023 any different from the Indian Evidence Act, 1872?
The law of evidence is an index of the quality of a justice system. In this respect, the ancient Indian jurisprudence was much in advance of any other system of antiquity. In many ancient societies proof by supernatural devices, such as trial by ordeal, was quite common. In England it prevailed till the very close of the middle ages. But the ancient Indian judicial system prohibited resort to supernatural devices. The real test of any law is that it should enable the courts to discover the truth, and that of ancient India stood high under this test.
The law of evidence prevailing in India emanated from the Dharmashastras, which were based on the Darsánas, or Schools of Hindu Philosophy. Truth was of integral importance, and in order to ascertain truth and its nature, the Hindu Darsánas enunciate elaborate theories (epistemology) and prescribe valid sources of knowledge (which are called pramãñas) and their ontological relationships. As per Hindu Darsánas (there is no unanimity among them) there are six valid sources of knowledge namely, (i) Pratyakṣa (direct perception), (ii) Śabda (documentary, verbal testimony), (iii) Anumāna (inference), (iv) Upamãna (comparison), (v) Arthapatti (postulation), and (vi) Anupalabdhi (absence, non-apprehension).
With the all-round destruction caused by the Islamic invaders, the much acclaimed Hindu judicial system went into disuse in parts of India that came under the Muslim rule. Therefore, when the British took over administration of India, justice dispensation became highly problematic for them because without a proper codified rules of evidence, administration of justice is impossible. The British did not find the rules of evidence of Mohammedan law satisfactory for dispensation of equitable justice. So while the colonial British codified the Indian Penal Code in 1860, it took them another 12 years to codify the law of evidence or the Indian Evidence Act in 1872.
Just like the Indian Penal Code, 1860, the Indian Evidence Act, 1872 too was the culmination of decades of painstaking efforts of several British colonial administrators and jurists to produce a set of clear and comprehensive provisions, which could be easily employed to meet the demands of administration of justice. Sir James Fitzjames Stephen played a significant role in it. Interestingly, the Indian Evidence Act, 1872 enunciates 6 types of admissible evidence, namely: (i) Direct, (ii) Oral, (iii) Documentary, (iv) Primary, (v) Secondary, and (vi) Circumstantial, almost conforming to the 6 pramãñas prescribed in the Hindu texts. Is the striking resemblance between the principles and contents of the Indian Evidence Act, 1872 and those stipulated by the Hindu Darsánas and Dharmashastras, a mere coincidence? Given the long history of plagiarism of vast body of Hindu knowledge by the Arabs and the Europeans, it certainly is not. It is not by chance that the Indian Evidence Act, 1872 is by far the most important and major adjective law that is common for both civil and criminal trials. It is so precise and comprehensive, as the Hindu Darsánas from which it is derived were scarcely amended since their enactment 151 years ago.
Is the Bharatiya Nagarik Suraksha Sanhita, 2023 any different from the Code of Criminal Procedure, 1973?
The Hindu jurisprudence is an ancient system that served as a guiding force to regulate human conduct. The ancient Hindu texts related to law emphasize dharma, the obligation of every person to do the right thing at all times. The Hindu law which is plural, lies in the diverse implementation of this principle in the infinite socio-cultural circumstances of life. “Hindu law teaches that fixed rules might cause injustice. The endless distinctions treat every individual as separate units, linked all the same by a common conceptual bond in a macrocosmic order (Rita) or truth (Satya). Dharma, the appropriate action, must consider all the circumstances with a view to promote the common good. In one sense, the individual is the ultimate agent to determine the ‘law’ in any particular situation. The colonial British did greatest damage in planting in India their procedural law as the Code of Criminal Procedure which is based on the Anglo-Saxon jurisprudence. Being a square peg in a round hole, it created an obvious tension. The alien jurisprudence has not led to expeditious dispensation of justice, but denial of justice. On the other hand, it also created a class of people with vested interests, whose livelihood depend not on speedy disposal of cases but in prolonging them indefinitely. Consequently, litigation became a trans-generational entanglement with the process becoming a punishment in itself.
‘Independent’ India replaced the Code of Criminal Procedure, 1898 with the Code of Criminal Procedure, 1973 which is an edited version of the former. Instead of improving, it has caused more damage due, among other things, to separation of Prosecution from Police. Thereafter, the Prosecution system has been completely politicised with coterminous tenurial appointment of lawyers who are ruling party supporters/members as Prosecutors. Most of these lawyers hardly have any practice and their only qualification is that they belong to the ruling party. Their political affiliation, corruption in their appointment and their lack of basic knowledge of criminal trials led to complete collapse of what was left of the criminal justice system with conviction rates nose-diving to the lowest possible levels. With a view to remedy the situation, some states such as Tamil Nadu, Uttar Pradesh, Rajasthan created a new system of Directorate of Prosecution in 1990s and appointed IPS officers as its Directors to reign in the berserk prosecution system. It led to significant improvement in the disposal of cases and rates of conviction. And then came intervention of higher judiciary which declared that only Lawyers or District Judges should be appointed as the Directors of Prosecution. With that, things went back to square one leading to mounting pendency of cases and plummeting rates of conviction. It is said that the disposal of existing pending cases, without any new addition to it, will take more than 300 years to dispose of. Such is the chaos and sad state of affairs created by the Code of Criminal Procedure, 1973. Thus the consequence of British implanting the alien Anglo-Saxon jurisprudence through the Code of Criminal Procedure is complete destruction of Rule of Law and justice delivery which are the bedrocks of democracy and governance. It is not an exaggeration to say that Indians have almost lost faith in the rule of law. Thankfully, the Indian society has not yet collapsed, not because of law, not because of police, not because of courts, but entirely because of the innate goodness of people.
Therefore, it was expected of the central government that a new Code of Criminal Procedure would be enacted to usher in a system of jurisprudence and a procedural law that facilitates expeditious dispensation of justice. Alas! That was not to be. The Bharatiya Nagarik Suraksha Sanhita, 2023 is a clone of the Code of Criminal Procedure, 1973 in its entirety by affixing a Sanskrit title Bharatiya Nagarik Suraksha Sanhita, to it. Further, even the meaning of the Sanskrit title does not bear any relevance to law. An old wine in an old bottle with a new wrong label.
One thing that makers of the Code of Criminal Procedure, 1973 ensured was to retain the same section numbers as that of the Code of Criminal Procedure, 1898 which they replaced, as the courts, lawyers, administrators and law enforcement officials were familiar with them. For instance, all Indians that CrPC 144 order means curfew. But Bharatiya Nagarik Suraksha Sanhita destroyed that institutional memory without any corresponding public good.
An old wine in an old bottle with a new wrong label:
The Bharatiya Nyaya Sanhita, 2023, Bharatiya Sakshya Adhiniyam, 2023, and the Bharatiya Nagarik Suraksha Sanhita, 2023 are mere copy-paste versions of the Indian Penal Code, 1860, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973. Merely rearranging the sections, assigning different numbers to them and affixing erroneous Sanskrit titles hardly makes a difference. Sanskrit word for penal is danda, whereas nyaya means justice. Likewise, while nagarik means citizen, suraksha means security. How can Penal Code and Code of Criminal Procedure respectively be named as Nyaya Sanhita and Nagarik Suraksha Sanhita? Is that an appropriate Sanskrit title?
What was the first biggest legislative fraud on India?
The Constitution of India was the first biggest legislative fraud on India. It was drafted by B. Narsing Rau, who was the Constitutional Advisor. He merely paraphrased the Government of India Act, 1935 and added alien concepts from other countries to make a potpourri of Draft Constitution. The job of Ambedkar who was the Chairman of the Drafting Committee of the Constituent was like that of a Chief Editor to edit Rau’s Draft. The word ‘Drafting’ in the name of the Committee was erroneous, nay contranym. By falsely attributing the drafting of Constitution to Ambedkar, who was a dalit, the powers-that-be cleverly firewalled any criticism of the anti-Hindu colonial Constitution for all times to come. It is pertinent to note that Ambedkar himself candidly clarified on 2 September 1953 in Rajya Sabha, “People always keep on saying to me: ‘Oh, you are the maker the Constitution.’ My answer is I was a hack. What I was asked to do, I did much against my will…. But I am quite prepared to say that I shall be the first person to burn it out.”
Thus, just as the Constitution of India, being a paraphrase of the colonial Government of India Act, 1937 with some alien concepts borrowed from other countries is the first biggest legislative fraud on India. No wonder, the Constitution of India has become the most powerful instrument for perpetuating colonialism, and the increasing colonisation of India at rapid pace in every aspect bears a testimony to that disquieting reality.
Hunger for justice in India far outweighs hunger for food:
Finally, colonialism is not merely about colonising a geography but significantly it is a state of mind. The modern Hindu mind is so much colonised that it is more colonial than that of the colonisers, irrespective of linguistic medium. The colonised Hindu mind has two subsets of people, namely; the pseudo-secular left-liberals and the pseudo-Hindutva sangh parivar which are two sides of the same anti-Hindu coin. Likewise, the justice system must have indigenous roots for people to relate to, have faith in and abide by it. Just as the Constitution of India is the source of many problems afflicting India, the Code of Criminal Procedure, 1973 including its new paraphrase Bharatiya Nagarik Suraksha Sanhita, 2023, is the biggest hurdle in delivery of justice.
