Union Home Minister Amit Shah, during the introduction of these Bills, stated, “From 1860 to 2023, the country’s criminal justice system functioned according to laws made by the British. With these three laws, there will be a significant transformation in the criminal justice system in our country,” liberating us from colonial influences.
While the Bills have been referred to the Standing Committee on Home Affairs for further examination, the government and its supporters are portraying them as a step toward ‘decolonizing’ India’s legal and criminal justice system.
However, legal experts are still analyzing the new Bills, and initial assessments suggest that there hasn’t been much substantive change. Apart from renaming the bills in Hindi and emphasizing an ‘Indian soul,’ most alterations involve reorganizing sections of existing laws and making some semantic changes in sentence structure. A Turnitin report indicates an 83% overlap between the Indian Penal Code (IPC) and the proposed Bills.
One of the central claims of this decolonization effort is the removal of Section 124(a), commonly known as the sedition offense. Yet, upon closer examination, this claim falls short as a similar offense is introduced through Section 150 in the new Bills.
In fact, this new section is even more vague and expansive than the IPC’s sedition section, as it encompasses intentions without adequate explanations. A broader definition gives the state more power to suppress perceived threats and label dissent as anti-national.
While the removal of terms like “lunatic” and “of unsound mind” and the introduction of time-bound investigative and trial processes in the new Bills are hailed as steps away from colonial legacies, they also grant more power to the police and the executive. These changes include expanding investigative powers in searches and seizures, obtaining samples from a larger group of people, restricting commutation powers, reintroducing handcuffs, making it more challenging to prosecute government officials, and broadening the scope of the remand procedure.
Beyond their individual effects on civil liberties, the cumulative impact of these changes strengthens the state’s power and impunity. This shift in power dynamics between the state and citizens lies at the heart of the matter – the relationship between the government and the governed.
Decolonization, though contested, fundamentally implies altering the power dynamic in favor of citizens, transitioning them from subjects to active participants in governance and law-making processes.
The colonial state was characterized by forceful rule and subjugation, prioritizing state interests over those of the governed, with little accountability to subject populations. This was reflected in the nature of laws and the criminal justice system, which emphasized policing, arrests, and punishment over justice. Effective decolonization should involve devolving substantial power to citizens and their participation in governance and law-making.
However, the proposed changes in the Bills seem to further entrench the power of the state over citizens. Furthermore, the formulation and introduction of these Bills lacked public participation and transparency. The terms of reference of the Committee for Reforms in Criminal Law were never made public, lacked diversity, and had a tight timeline to overhaul three major criminal laws.
These Bills were introduced on the last day of the session, leaving no room for meaningful debate or discussion on their significant impact on the criminal justice system affecting 1.3 billion people. This reflects a recurring pattern of formulating laws without broader consultations, ignoring critical opinions, and hastily passing legislation in Parliament.
This lack of public participation, transparency, and accountability in governance processes leaves citizens more vulnerable to state actions. For instance, the Data Protection Bill 2023 dilutes the Right to Information Act, 2005, and increases executive control over data, further eroding democratic safeguards.
Laws are not just words on paper but are embedded in broader societal contexts and power structures. The criminal justice system represents a direct power dynamic between individuals and the state, where individuals are pitted against the might of the state as accused. Despite some progressive changes in the new Bills, they do not genuinely decolonize the system as long as they maintain authoritarian power dynamics favoring the state over the people. Simply changing the names to Hindi does not free us from colonial legacies.