India ditches colonial-era laws, but overhaul prompts fear
July 10, 2024
India's criminal justice system have undergone a major overhaul. Three new criminal laws came into effect on Monday, replacing the 19th-century Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act, which were inherited from the British after securing independence in 1947.
Prime Minister Narendra Modi's government said that the new laws were needed to replace colonial legislation, which has been a central part of the country's criminal justice system for over a century. But the move has evoked a widespread controversy, sparking concerns among human rights groups, legal experts and opposition political parties.
The new laws were passed by the Indian parliament in December 2023. At the time, Home Minister Amit Shah said in a statement that "all aspects of the law [were] discussed extensively with various stakeholders" for years, and that, with India's new criminal laws "priority is to justice instead of punishment."
The opposition countered that the laws had been rushed through parliament without sufficient debate or consultation.
What has changed?
One of the key changes in the new legislation is the duration of police custody, which has increased from 15 days to 60, and in special cases can last up to 90 days. The laws also specify new provisions for terrorism and organized crime, forsee the death penalty for mob lynching, and allow for the audio-visual recording of evidence to aid police investigations.
The new laws also replace the colonial-era sedition law with broader offenses that cover "endangering the sovereignty or unity and integrity" of the country.
Many lawyers, activists and opposition leaders are concerned by the changes. They worry that extending police custody would harm the rights of detainees in a country with high rates of custodial deaths and a low conviction rate. According to the critics, the new laws are "more draconian" in nature and risk throwing the criminal justice system into disarray.
Why is the reform controversial?
Supreme Court lawyer Nipun Saxena is one of the most outspoken voices opposing the legal changes. He is currently focusing on exploring and decoding them in depth.
For Saxena, laws like these "have all the indicators that point towards the establishment of a police state," where judicial functions are widely transferred to the police. Under the old system, so the expert, a judge would decide if a case could proceed for trial, while under the new laws, this decision appeared to be left to the police.
"The new laws violate at least four to five articles of the constitution that relate to procedural safeguards and protection against illegal detention, and some very important Supreme Court judgments," Saxena added.
Saxena is not the only legal expert speaking out against the reform. Several lawyers' associations across the country have also registered their protest. The All-Indian Lawyers Association for Justice (AILAJ), a non-governmental organization, said that many provisions in the new laws "solidify powers introduced by the colonial powers."
Who is affected?
Experts say that these changes will have an impact on a broad spectrum of society, affecting common citizens, activists, and suspects, but also India's judiciary, which is already overburdened with pending cases.
Human rights activist Natasha Narwal says she is worried for all citizens of India.
"The new laws are not aimed at crushing dissent alone. They are aimed at increasing the power of the police over people, over our lives, on a very insidious level. And of course, it will enable the state to crush dissent with much more power," she told DW.
Narwal was arrested for protesting for religious freedom in India in 2020 and detained on charges of "premeditated conspiracy." She says the latest reform is "dangerous."
"In the last 10 years, we have seen increasing repression on all kinds of politics which raised critical questions to the Modi government, and these laws give more power to them," she added.
Moving away from colonialism?
However, Modi's ruling Bharatiya Janata Party (BJP) denies bad intentions and portrays the new laws as a "step towards decolonization." Sudhanshu Mittal, senior BJP leader, said that the old laws were archaic and needed to be changed.
"It is a very proud moment," Mittal told DW. "India, after very careful thought and discussion amongst the entire polity, has come up with its own set of laws, saying goodbye to the centuries-old colonial criminal jurisprudence, which was then enacted to protect the British hegemony in India."
Legal expert Saxena dismissed this account, asserting instead that "the laws are not colonial as they have undergone a lot of change with various amendments and judgments at the state and judicial level."
"Therefore, this contention that these laws were colonial and had to be done away with is absolutely, historically, and logically incorrect." Saxena told DW.
Edited by: Darko Janjevic
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