Can The New Laws Really Decolonise Indian Criminal Justice System?

The three British-era laws governing India’s criminal justice systeam are set to be replaced by new laws with Hindi names, but provisions in the new laws are mostly same as the old ones. Amid allegations of ‘Hindi imposition’ as the three new bills have Hindi titles, the question arises whether decolonisation of the criminal justice system can take place by simply changing the names of the laws.

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In August, much before the India versus Bharat debate started, the Union government introduced bills to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act. Respectively, the names of the bills are the Bharatiya Nyaya Sanhita Bill (BNS), 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023, and the Bharatiya Sakshya Bill (BS), 2023.

The bills triggered a debate on social media and some assumed that the government was slowly not only doing away with colonial British laws but also adding stringency to criminal laws and replacing ‘Indian’ with ‘Bharatiya’. Those who were supporting the bills called it a journey from India to Bharat.
Union Home Minister Amit Shah tabled the bills on August 11 in the Lok Sabha and stated that the current laws have a “British colonial stamp” on them and were not meant to protect the common people of India.

“These laws were made 160 years ago with the aim of creating an atmosphere in favor of the British authority in London. The foundation of these procedures was to protect the British, not the common people of India,” said Shah. 

The IPC was first enacted in 1860, the CrPC in 1882, and the Evidence Act in 1872.

Soon after the tabling of the bills, Tamil Nadu Chief Minister MK Stalin described them as an audacious attempt by the Bharatiya Janata Party (BJP)-led government to tamper with the essence of India's diversity through a sweeping overhaul. 

He said, “Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Bill — reeks of linguistic imperialism…This is an affront to the very foundation of INDIA’s unity.” 

In his social media post, Stalin said the BJP’s “audacious bid to supplant our identity with Hindi will be opposed resolutely”.

Senior Advocate Sanjay Ghose says every law has an authentic English version and its Hindi version. The Hindi version of the IPC is called Bhartiya Dand Sanhita. Article 1 of the Constitution of India states the country as “India, that is Bharat”. Its Hindi version reads as “Bharat, arthath India”.

Ghose says, “It shows that the Constitution and the legal system already recognise both these names — India and Bharat. It is the first time they are introducing legislation where the English version will be called ‘Bharat’. It has been analysed that these new bills retain 70 per cent of the IPC and the CrPc. Therefore, it is a process of name-changing rather than game-changing.” 

“If they believe that something as serious as decolonisation can be achieved by simply changing a name, then good for them. Decolonise,” says Ghose sarcastically.

Naveed Mehmood Ahmad, Senior Resident Fellow at Vidhi Centre for Legal Policy, says he does not see how renaming a law can help in decolonising India’s criminal justice system

He says, “The IPC was not colonial because it had a non-Hindi name. It was colonial because it saw Indians as subjects who were to be controlled and also punished harshly. It was colonial because it furthered a colonial agenda. The British could have used a Hindi name for the law and it would still be the same. So, as I have mentioned in my articles, decolonisation cannot happen through superficial name changes, as long as the criminal justice system over-criminalises and provides for excessive police powers.”

Ahmad says the Tamil Nadu CM Stalin may be right in placing these name changes in the larger ‘Hindi imposition’ debate. “Laws generally have an English title and a Hindi translation, but that doesn't seem to be the case here,” says Ahmad. 

In one of his recent articles, Naveed argues: “Unfortunately, the colonial bits in the IPC, with all their underlying assumptions about Indians, remain in the proposed law. In the BNS, there is no move away from the harsh colonial penal policy that saw Indians as ‘savages’.

“There has been no attempt at rationalisation of punishments. In fact, punishments have been increased, and the death penalty added for a few offences. Just like the colonial IPC, the proposed Bharatiya Nyaya Sanhita uses wide and ambiguous provisions that have the potential to encourage abuse of police power. Considering all of this, the BNS actually does very little in the way of ‘decolonisation’.”