By Prof Upendra Baxi
The desire of Indian governance has always been to “decolonise” the Indian legal system, but there exist various ways of achieving this end. Therefore, all law reform, routine as well as extraordinary, remains a contentious terrain even as it aspires to a progressive re-codification of existing law.
The three re-codification bills—Bharatiya Nyaya Sanhita Bill, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Bill (simply called the Sanhitas)—are now before a parliamentary committee and will receive, one hopes, close and adequate consideration because amendments to criminal law affect not just the life of the State, politics and law, but social and individual lives.
Unfortunately, the report of the criminal law reform, by a committee of well-known experts, convened by the National Law School University, Delhi (NLUD), is still confidential and one has to work out what recommendations of the Law Commission of India (LCI) have been specifically incorporated or negated. The LCI, strangely, in its Reports 264, 267, 268, 271, 273 and 277 suggested only piecemeal reforms, whereas the law ministry asked for a “holistic” report.
A threshold question concerns the possibility and desirability of either model of change: a holistic law reform measure will have a large, even uncertain horizon. The three Sanhita Bills, however, pursue the grammar of crime and punishment, kept distinct from special criminal laws (such as those against corruption, security and anti-terrorist laws, and economic offences laws). The 42nd Law Commission Report of 1971 had suggested the inclusion of specific social and economic offences in the Indian Penal Code, but this suggestion has been systematically ignored by Parliament and law reformers. But it has also issued a gold standard for criminal law—it should “not act with misplaced overzeal” and it ought only to “come into picture” only when it is “proved” to be an “apt and effective machinery to cure an unintended evil”.
The three Sanhitas do not go so far as the earlier Malimath Committee Report (2003) which proposed a basic structural change in the administration of criminal justice, by advocating some version of the European inquisitorial trial processes.1 It would be accurate to say that the State itself seems to have abandoned the originally preferred “holistic” approach.
What we have essentially are changes in three laws or codes pertaining to offences, evidence, and criminal procedure, rather than changes of the criminal justice administration (CJA rather than CJS—criminal justice system as a whole)2. And although these Sanhitas represent a major shift in criminal and penal law, they do not amount to a complete repudiation of TB Macaulay (the first Chair of the pre-Independence Law Commission, 1824). It may be somewhat justified, as some distinguished critics do, to speak of “old wines in new bottles”3. But oxidation can cause wine to turn into vinegar! It is, as shown by the Article 39-A project of NLUD (true as student and faculty led “substantive analysis” of the BNS Bill) that over hasty changes in law may lead to its own problems, and even turn toxic.
Leaving a comprehensive study of various criticisms of the Bill for later analysis, we engage here only on the broad question of how and why the Sanhitas may be considered as a measure of “decolonisation”.
At the very outset, we draw a distinction between “decolonisation” of general criminal law from that of justice. Admittedly, the two are related, but are not the same. The latter, for example, addresses many areas not even articulated by proposals for law reform: the most prominent being “elitism” conceived as “preconceived denigration, antipathy, or hostility of those of an inferior class, standing, or status”4 or “epistemic violence”. These are unconstitutional wrongs and violate core human rights, lead to mass harm, including the enforcement of ecocide by law and preventable human and social suffering through a variety of interrelated mass harms in the 21st century. Surely, a “decolonizing” law reform should pay greater regard to the crimes of the powerful and super-rich classes pursuing rampant “elitism”. It not merely results in denial of equality in CJA, but also poses multiple threats to the idea and ideals of constitutional democracy. On a related register, reforms even of CJA ought to formulate certain just postulates for criminal justice in India, to which I have drawn attention.5
Reforms in CJA ought to take seriously the constitutionalisation of criminal law. All I can say here is that while some Sanhita proposals remain most human rights friendly, the priority tasks of the parliamentary committee should be to address more adequately the perspectives and practices of Macaulay’s code, as most provisions retain IPC’s “colonial” focus.
Enhancement of sentences for certain offences and providing long periods of pre-trial detention defeat the very idea of decolonisation. One hopes that the parliamentary committee would more seriously try to make real the three Ds of modern criminology—de-criminalisation, de-penalisation, de-institutionalisation—and cognate idea that punishment should fit the crime; it should also bear in mind the constitutional accents on custodial detention.
One would need to distinguish re-colonization from de-colonisation. In my view, this occurs rather spectacularly in the very title of Bharatiya Nagarik Suraksha Sanhita. If we were to translate the first two words, these would be “social defense”—a typically civil law cultural construct, which emphasises “a system which aims not at punishing a fault but at protecting society against criminal acts”.
True, the Union ministry of social justice and empowerment uses this rubric for a variety of its schemes (such as for the elderly and the disabled) and the Union home ministry runs an Institute of Social Defense, but conceptually, common law adversarial criminal systems are more directly addressed to crime and punishment. In any case, is borrowing concepts and categories from different sets of European masters an act of re-colonisation or an example of multiculturalism?
The committee should also have in view some idea of this runaway word called “de-colonisation”; contemporary discourses and events also carry the messages of “neo-”, “post-” and “trans-”colonization. To encapsulate a whole library of thought in three sentences is foolhardy but will have to suffice here!
Neo-colonization is a situation, as the president of Ghana and an acute global thinker, Kwame Nkrumah, stated of “power without responsibility” and “exploitation without redress”. Post-colonization signifies historic processes of divesting the State and politics of the remnants of arbitrary conferment of the despotic power; trans-colonization at once presents narratives of colonialism without colonizers and stories of serious pursuit of contemporary values, standards and norms of international human rights in the administration of criminal justice.
The parliamentary committee will have to explore the three Sanhitas from each one of these perspectives. One can only, as a citizen of India steadfastly pursuing the Fundamental Duties of All Citizens under Part IV-A of the Constitution of India that is Bharat, wish the co-citizens comprising the committee Godspeed and good luck in this mission.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer. This is the first in a three-part series that looks at the three recent re-codification bills.
References
1 See Upendra Baxi: “An Honest Citizen’s Guide to Criminal Justice System Reforms: A Critique of Justice Malimath Committee Reform,” 1-25. Amnesty India, Malimath Committee, Premises, Politics, and Implications for Human Rights, https://www.amnesty.org/en/documents/asa20/025/2003/en
2 See Upendra Baxi, “Human Rights in the Administration of Criminal Justice—The Concept of A Fair Trial”, The Journal of National Human Rights Commission, 1-22, (2020).
3 See the article by Justice Kamaljit Garewal August 28, 2023 issue of India Legal.
4 Described this way by Rafe McGregor, Literary Theory and Criminology, fn 2, at p 9 (2024).
5 Such as: one is sent to jail as, and not for, punishment; the difference between prosecution and persecution must always be maintained; bail not jail should be the rule and not an exception; all wrongful prosecution sought to be penalized; law shall never be a means of political vendetta, and all practices of detention; and custodial torture must cease.