The new Indian criminal code- Modern provisions or Map to a police state?

In December 2023, the Indian Parliament voted to replace the primary penal legislation in India, the Indian Penal Code (IPC). In July 2024, the new criminal legislation, the Bharatiya Nyaya Sanhita (BNS) came into effect [1]. The official government explanation for the new code stated that parliament aimed to create a better legal framework suited to the needs of the current society while modernizing outdated provisions, as the IPC had been in existence since 1860. However, a critical analysis of the new code reveals a poorly concealed attempt to use legislation to expand state and police powers through overbroad and ambiguous provisions. This article investigates two of the main changes in the new code; Section 113 that deals with ‘terrorist acts’, and Section 152, that deals with acts that endanger the sovereignty, unity and integrity of India and argues that these draconian provisions threaten the world’s largest democracy, turning it into a route-map to a police state. 

Section 113 BNS- ‘Terrorist acts’

One of the major changes incorporated in the new criminal code was the addition of the definition of “terrorist act” into Section 113. The provision states that

A person is said to have committed a terrorist act if he commits any act in India or in any foreign country with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order by doing an act. [2]

The content of the section was taken from the section 15 of the Unlawful Activities Prevention Act (UAPA) 1967 [3], which was a specialized statute enacted to address issues of terrorism. While the provision prima facie appears to mirror the act, a closer reading reveals that the requirement to constitute a terrorist act under Section 113(1) is much wider than the UAPA provision. The original mens rea requirement in the UAPA was ‘an intention to strike terror in people’. However, this was broadened in the BNS where an act could meet the threshold as long as it was done with the intention to intimidate the general public or disturb the public order.

The expansion of the ambit of the provision raises questions about potential governmental abuse of power, as the UAPA itself was controversially draconian legislation to begin with. This concern is further amplified by the history of the government’s misuse of the UAPA. Some examples of the weaponization of the act include the prosecution of writers and academics like Arundhati Roy and Sheikh Showkat Hussain [4] who have openly criticized the nationalist government. The act itself has been labelled anti-democratic due to its provisions that threaten human rights, such as extremely high thresholds for bail, incarceration in the absence of a charge and the reversal of the presumption of innocence [5].

Section 113 of the BNS takes it one step further, as the incorporation of terrorism offences in the BNS that overlap with the those provided in the UAPA allows for the circumvention of even the minimal protections provided by the act. For example, Section 45 of the UAPA necessitates a sanction of the government before a court can take cognizance under the Act [6]. However, under the BNS, this requirement does not exist for court proceedings. Another example involves Sections 36 and 37 of the UAPA that involve the denotification of a terrorist organization and relevant review committees to oversee the process [7]. However, the mirrored provisions in the BNS do not contain the same protections, leaving the provisions wide open to potential misuse. The codified statute has also been criticized for the expansion of terrorist acts into the realm of ordinary criminal acts through wording like ‘destruction of public property of India’ that leaves room for wide interpretation. This is supplemented by the presence of vague and over-ambiguous terms such as ‘likely to threaten’ that make provisions of the BNS a dangerous tool in the hands of a nationalist government with a history of suppressing fundamental rights. 

Section 152- A reproduction of sedition laws

Another contentious aspect of the new criminal code involves its virtual reproduction of the old sedition law. Section 124 A of the Indian Penal Code (the old criminal code) criminalized any act that would “bring or attempt to bring into hatred or contempt or excite disaffection towards the government” [8]. The overbroad nature of the offense combined with a rampant rise in rates of sedition cases under Modi’s nationalist government led to a Supreme Court ruling in 2022 that ordered for pending cases under the section to be halted. The apex court also prohibited the registration of new cases under the section, and recommended the legislature reconsider the law [9]. 

However, the new code has not only retained most of the controversial provisions in section 152 but also introduced new once further amplifying the draconian nature of the act. The section provides that

Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine. [10]

Excessively vague and sweeping terms in the section such as “feelings of separatist activities’ prime the situation for the governmental abuse of the provision. One notable instance of the recent abuse of sedition laws was when the IPC provision was invoked when celebratory messages were posted for a Pakistani win at cricket [11]. With established precedent for the use of the old statute in such broad instances, the wide nature of the new provision opens the code up to even more drastic exploitation. India has already witnessed the indiscriminate use of Section 124 A IPC targeting those who dare to criticize the government. With section 152 of the BNS the threat to minorities in India has exponentially increased, bringing the possibility of a police state one step closer to reality.

Ultimately India’s new criminal code plays a major role in future curtailment of civil liberties through specific sections expanding state powers, paving the way for the current nationalist government to turn into an autocratic one. Through draconian laws and anti-democratic provisions, the sections threaten the constitutional principles of the nation, leaving it wide open to the potential of a future police state that suppresses fundamental rights. 

References:

1. Fox Mandal, Changes Brought Forth by the Bharatiya Nyaya Sanhita, 2023, Lexology (July 4, 2024), https://www.lexology.com/library/detail.aspx?g=8b6e523a-8ba1-4575-9408-c58a70cd31cc.

2. Bharatiya nyaya sanhita B.N.S. § 113 (Devgan.in 2024).

3. Unlawful activities prevention act U.A.P.A. § 15 (Indiacode.nic 2024).

4. Apurva Vishwanath, Bypassing statute of limitation, stay on sedition law: Why UAPA has been invoked against Arundhati Roy, The Indian Express (June 15, 2024), https://indianexpress.com/article/explained/explained-law/bypassing-statute-limitation-uapa-arundhati-roy-9393462/.

5. Amnesty International Joint Public Statement, Amnesty International (June 24, 2024), https://www.amnesty.org/en/wp-content/uploads/2024/06/ASA2082022024ENGLISH.pdf.

6. Unlawful activities prevention act U.A.P.A. § 45 (Indiacode.nic 2024).

7. Unlawful activities prevention act U.A.P.A. § 36-37 (Indiacode.nic 2024).

8. Indian Penal Code I.P.C § 124A (Indiacode.nic 2024).

9. BBC News, Sedition law: India's Supreme Court puts controversial law on hold, BBC News (May 11, 2022), https://www.bbc.co.uk/news/world-asia-india-61404053.

10. Bharatiya nyaya sanhita B.N.S. § 152 (Devgan.in 2024).

11. Rajini Vaidyanathan, T20 World Cup: When Indian fans are jailed for celebrating Pakistan's win, BBC News (Nov. 3, 2021), https://www.bbc.co.uk/news/world-asia-india-59130556.