Do India’s new criminal laws give police too much power? – DW – 12/25/2023

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India‘s parliament passed three new bills last week to replace colonial-era criminal laws in what has been billed as the biggest overhaul of the country’s criminal justice system since the country was under British rule.

The new laws — which were rushed through in the absence of over 40 opposition MPs who had been suspended for protesting an unrelated issue — replace the colonial-era Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act.

India’s Home Affairs Minister Amit Shah, who introduced the bills to parliament, said they were aimed at removing archaic references to the Brtitish monarchy and other “signs of our slavery.” 

Boon or bane for criminal justice system?

The new laws include provisions to expand detention in police custody from the current 15-day limit to up to 90 days — bringing terror, corruption and organized crime under ordinary legislation and, for the first time, decriminalizing homosexuality and adultery.

The act of obtaining sex by promising marriage to a woman will be treated as a crime for the first time and will carry a 10-year sentence. Besides this, the new law also specifically defines the notion of consent.

It stipulates that forensic evidence must be used in offenses carrying a jail sentence of seven years or more for which more labs will be set up across the country.

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Rights campaigners and critics say the new laws give authorities too much power.

Experts pointed out that the new legislation is neither anti-colonial nor transformative. Many say it is a missed opportunity to fix over-criminalization and hands enhanced power to the state and the police.

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“The laws enacted by this government are 10 times more draconian,” human rights lawyer Colin Gonsalves told DW.

“During the British period, you could keep a person in police custody for a maximum of 15 days. Now, extending 15 days to 90 days and more, is a shocking provision enabling police torture.”

Objections to consolidation of state power

Gonsalves also pointed out that dispensing with the provision of legal aid from the point of arrest was particularly problematic.

“Under the current law, legal aid is provided from arrest. In the new bill, there is no such provision. This is amazing,” said Gonsalves.

Senior Supreme Court lawyer Shahrukh Alam, who has studied the criminal bills closely, pointed out that current bills reinforce power and disproportionately favour the law enforcement agencies and the prosecuting state.

“On reading the new codes one gets the sense that society and state are forever under attack from unknown quarters and the state must always act against its citizens as if we were in a state of emergency,” Alam told DW.

“The opaqueness, the ambiguity, the arbitrariness, the rupture, the structural violence, the centralization of power, all of these are elements of colonialism and authoritarianism,” she added.

Alam further said immense unilateral power has been given to the investigating agencies without any safeguards and several regressive provisions give more power to the police at the cost of citizens.

Political scientist and academic Pratap Bhanu Mehta was scathing in his attack, pointing out that in the name of decolonization, the laws just meant more arbitrary power to the state.

“The lack of outrage on the bills or indeed on virtually the entire opposition being suspended, may simply be a function of the fact that there is no appetite for constitutional reforms left. The bills attest to the inverted politics of our time,” Mehta told DW.

Similarly, G. Mohan Gopal, a former director of the National Judicial Academy, said there is no real effort in the bills to enhance police accountability and that they were a recipe for enhancing repression.

“Like many other historic pieces of legislation, these three pivotal laws, that will deeply affect the lives of all Indians, have also been rushed through parliament with the explicit aim of avoiding any meaningful debate or genuine discussion on them,” Gopal told DW.

The overhaul to India’s criminal justice system is the latest effort by Prime Minister Narendra Modi‘s government in its campaign to remove lingering symbols of colonial rule from the country’s politicial institutions.

The bills are expected to become law once President Draupadi Murmu gives assent, which is considered a formality.

Edited by: Keith Walker

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