New Criminal Laws Are Continuation Of Colonial Logic, Expand Police Powers : Professor Anup Surendranath

Professor Anup Surendranath of National Law University Delhi, in a recent interview with Livelaw, discussing the three new criminal laws, said that a tremendous opportunity for truly transforming our criminal justice system has been missed. He opined that these laws are certainly a continuation of a colonial logic where the State wants as much power to control the people it is ruling over. President Draupadi Murmu, on December 25, assented to the three new criminal code bills Parliament recently cleared. These new laws, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Sanhita, will replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act of 1872. Pertinently, one proclaimed objective signalled by the government while introducing these new criminal laws is decolonization. Thus, to begin with, Professor Anup Surendranath was posed with the question of how these laws would signify a departure from the colonial legacy of our criminal laws. He replied that it is a very shallow argument to say that what we mean by colonial is that it was enacted during that time. He stressed that when we say something is a colonial law or colonial institution, we need to focus on the relationship between the state and the citizen. He explained further that the colonial state had a certain logic of control and power and used criminal law to control the native population. Taking his cue from this, the Professor opined that the dynamic has not changed with these new laws passed by the parliament. “The nature and use of criminal law continues to be to control the population, to expand the scope of operation, very vague provisions, much wider police power and we are not reforming our criminal justice institutions. The criminal justice institutions remain the same and they will continue to function in the same way. In that sense, nothing much has changed. The colonial logic continues. We have re-used and re-purposed the colonial logic even in these new laws. Therefore, the argument of de-colonisation rings rather hollow, according to me.,” Surendranath said told Manu Sebastian, Managing Editor of LiveLaw in the interview. After being asked if he was saying that except for the change of name, the substantive provisions, more or less, remain the same, the Professor answered in affirmative. “Yes, the label has changed but the nature of use of criminal law by the state continues to be the same. The criminal justice institutions that will then enforce these criminal laws continues to be the same. There is no fundamental shift in the relationship between the state and the citizen through criminal law… These criminal laws and criminal justice institutions continue to be a legacy of that colonial logic.” It Was A Tremendous Opportunity To Reform India's Criminal Justice System Moving ahead with the session, he was asked if, according to him, these bills do not reform the criminal law system. To this, he categorically concurred. He went on to say that reform is the wrong term to use. He added that reforming India's Criminal Justice System was a tremendous opportunity. However, through these laws, there is no reform being delivered. Professor opined. “Absolutely not. Reform would be a very wrong word to use as far as these laws are concerned. It was a tremendous opportunity to reform India's Criminal Justice System but there is no reform being delivered here, through these laws.” Potentially Good Changes Vis à Vis Institutional incapacity While Professor Surendranath agreed that there are positive changes, he also emphasized that none of this is in the nature of overhauling or reform, or decolonization. Speaking about some of the potentially good changes, he also expressed his concern if the same will be met with corresponding changes in institutional capacity. He welcomed the provisions mandating audio-video recording of police searches, forensic evidence collection, setting timelines for investigation/trial processes. He added that these changes could have been brought in by amending the existing laws instead of repealing and replacing them with the new laws. “Are some of those changes potentially good? Yes…While, yes, some of these changes are potentially good it is very scant on detail as to where is the institutional capacity going to come from. While there are changes in the laws, it is not met with a corresponding change in the capacity of institutions.” Section 150 of the BNS, Which Replaces Sedition, Will Suffer The Same Fate Moving forward with the session, the Professor was asked about his views on the omission of sedition in the BNS. On May 11, 2022, the Top Court ordered that the provision be effectively kept in abeyance until the Union Government reconsiders it. In an interim order, the Court urged the Centre and the State governments to refrain...

New Criminal Laws Are Continuation Of Colonial Logic, Expand Police Powers : Professor Anup Surendranath

Gyanvi Khanna

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