Concerns are growing that India’s three new criminal laws, which came into effect on July 1, replacing colonial era laws, will give the state more power to curtail rights and freedoms.
The Indian Judicial Code (Bharatiya Nyaya Sanhita, BNS), Indian Civil Defense Code (Bharatiya Nagarik Suraksha Sanhita, BNSS) and Indian Evidence Act (Bharatiya Sakshya Adhiniyam, BSA) were rushed through by Prime Minister Narendra Modi’s ruling Bharatiya Janata Party (BJP) in December 2023, with little time for debate or parliamentary scrutiny.
This followed a 2020 review into the country’s criminal laws by a Ministry of Home Affairs committee that was criticised for operating in secrecy. Its final report was never made public.
The Modi government claims the new laws will bring “justice” and “modernise” the legal system. However, critics argue that while India’s legal system has been in dire need of reform — with a backlog of 34 million cases — these laws are not the answer.
Labour lawyer Clifton D’Rozario, a leading member of the Communist Party of India (Marxist-Leninist) Liberation (CPIML), wrote in Liberation in January that the new laws lock in a “small number of necessary changes”, such as decriminalising homosexuality, a time limit for completing investigations and recognising electronic evidence as primary evidence.
However, the new laws also include concerning changes that would destroy human and civil rights, including draconian anti-terror laws, criminalising protest and enhancing police powers.
Free speech, protest rights under threat
Amnesty International (AI) India said the laws “would have debilitating consequences on the effective realization of the rights to freedom of expression, association, peaceful assembly and fair trial”.
It said claims the laws had done away with colonial-era sedition laws — which have been frequently used to stifle dissent and were suspended by India’s Supreme Court in 2022 — were false.
“The BNS adds a new provision criminalizing ‘acts endangering the sovereignty, unity and integrity of India’ which reads the same as the old sedition law,” AI India said. “Further, it increases the minimum punishment under the law to seven years.”
The CPIML said the new laws “criminalise the basic civil liberties that citizens enjoy, in particular, the freedom of speech, right to assembly, right to associate, the right to demonstrate and other civil rights”.
The laws adopt the broadened definition of a “terrorist act” from the draconian Unlawful Activities Prevention Act (UAPA), which was introduced in 1967 and has been used to target activists, journalists, writers and opposition figures.
Between 2016 and 2020, more than 24,000 people were accused in more than 5000 cases across the country under the UAPA.
The new laws also criminalise hunger strikes, seeking to prohibit a form of peaceful protest that has played an important role in India’s history of struggle.
“It is ironic that Modi, who rode to power on the wave of the hunger strikes during the anti-corruption movement, has criminalised and denied to the people this form of protest,” D’Rozario wrote.
Despite claims made by Home Affairs Minister Amit Shah in August last year that the BNS would tackle mob lynching, the laws fail to adequately do so.
Under the BNS it is now a crime for “a group of five or more persons acting in concert to commit murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground”. However, the law does not mention “mob lynching” by name and omits “religion” as an explicit grounds, despite it being one of the primary factors motivating such crimes.
“Public executions or mob lynching of Muslims, much like caste murders, is an every-day and inescapable reality in new India,” D’Rozario wrote. “As such, the failure to mention religion cannot be accidental or oversight.”
Police powers
The new laws grant police more powers and effectively give them permission to breach fundamental human rights, which will overwhelmingly impact poor people, religious minorities and other vulnerable communities such as Dalits and Adivasis (indigenous peoples).
Police can now hold people in custody from 15 days, up to 60 or 90 days, depending on the offence. They also now have powers to detain a person for up to 24 hours for resisting, refusing or ignoring police orders.
As this would not count as an arrest, any safeguards around arrest can be ignored by police.
There is evidence of rampant torture and assault committed by police against detained people, as well as deaths in custody, which these laws will only worsen.
BNSS makes it mandatory for the name, address and offense of an arrested accused person to be displayed prominently — physically and digitally — “violating the right to privacy and human dignity …. [and] facilitating the profiling and targeting of individuals by the police prior to any formal conviction”, the CPIML said.
Another provision allows the use of handcuffs during arrests, which the previously laws ruled out as “unreasonable and akin to treating human beings like animals”.
The BNSS also gives police discretion to turn away or ignore complainants without registering their complaints.
Thousands of lawyers in New Delhi stopped work and boycotted court hearings in protest at the new laws.
“The laws in their current form will be used as pretext to violate the rights of all those who dare speak truth to power,” AI India said.
“The three new criminal laws in India must be immediately repealed and brought in line with international human rights standards to prevent the continued flagrant misuse to crackdown on peaceful dissent in the country.”