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New Criminal Code Laws

What implications do they have on the minorities of India, especially Muslims?



– Arshad Shaikh

The current Winter Session of Parliament saw three criminal code bills passed in the Rajya Sabha unanimously in the absence of Opposition MPs. A few days back, 146 Opposition MPs were suspended for the rest of the session for stalling the proceedings of the house demanding the Home Minister’s statement over breach of security that took place in Parliament on 13 December 2023. Earlier, on 20 December, the Lok Sabha passed the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Bill.

The Prime Minister described their passage as “a watershed moment in our history”. He signaled, “These Bills mark the end of colonial-era laws. A new era begins with laws centered on public service and welfare. At the same time, these Bills come down heavily on organized crime, terrorism, and such offenses which strike at the root of our peaceful journey to progress. Through them, we have also bid goodbye to the outdated sections on sedition. In our Amrit Kaal, these legal reforms redefine our legal framework to be more relevant and empathy-driven.”

Home Minister, Amit Shah flaunted the “Indian-ness” of the new laws, saying, “The soul, mind and body of the new laws are all “Bharatiya” and that “if you keep your hearts open, and if your heart is Indian, then you will understand. But if your mind is of Italy, you will never understand.”

Nevertheless, what are these new laws that claim to overhaul India’s criminal justice system? They have sparked opposition from human rights activists on their perceived misuse and having the potential to crush freedom and personal liberties.

Moreover, what implications do they have on the minorities of India, especially the Muslim community?

Muslim apprehensions about the new laws are legitimate as expounded by AIMIM MP Asaduddin Owaisi who pointed out in Parliament, “Muslims, Adivasis and Dalits constitute the maximum number of undertrials in India. According to NCRB data from 2017-21, 20% of undertrials are Muslims and their conviction rate is 16%. Muslims are 14.2% of the population of our country. Under prevention detention laws (to subvert a fair judicial process), today in the jails of India, 30% of detainees are Muslims. In 2017, the number of detainees in Uttar Pradesh was 33.9%.

“A famous think tank in India, CSDS has found substantial prejudice against Muslims in the police force. In Bihar, Maharashtra, Uttarakhand, and Jharkhand, two-thirds of the police thought that Muslims were more inclined to violence than members of other communities. Project 39A reports on those facing the death sentence, 76% are from Backward Classes, Dalits, and religious minorities.”

Let’s examine the new laws and the possible negative implications for the Muslim community:

Bharatiya Nyaya Sanhita Bill (BNS) or Indian Justice Code:

This bill aims to replace the existing Indian Penal Code (IPC) of 1860. Other provisions legitimize encounters and violence during arrests.

There are sweeping and ambiguous definitions introduced in the new bills for crimes such as sedition, subversive activities, and acts of terror. These vague definitions will jumble legal interpretations infringe on personal liberties and abuse of human rights. The bill has a provision for ‘love jihad’, which has been defined as ‘concealing your identity before marriage’. It has been made into a separate offence and the sentence is 10 years. The word ‘love jihad’ is a misnomer, is deeply offensive to Muslims, and carries a derogatory reference to an important tenet of Islam. It has been coined by anti-social elements and it should never have been incorporated as a legal proviso in our statute. This provision may affect Muslims disproportionately and it could be exploited to harass them.

Bharatiya Nagarik Suraksha Sanhita Bill (BNSS):

This bill will repeal the current Code of Criminal Procedure (CrPC) of 1973. The bill extends the period of detention without charges from the current 15 days to 90 days and gives the police new discretionary powers such as the ‘right to handcuff’. This extension under BNSS chances of exposure to police excesses. Given the track record of our police, and fears about the safety of detainees in police custody, the risk of forced and fabricated evidence being produced under prolonged detention, seems very genuine and will be a blow to civil liberties.

Bharatiya Sakshya Bill:

This bill aims to replace the Indian Evidence Act of 1872. It seeks to modernize and adapt these rules to the contemporary legal landscape. The bill accepts the premise of admissibility of electronic or digital records as evidence having the same legal effect as paper records. It enlarges the definition of electronic records to comprise information like locational evidence and voice mails kept in semiconductor devices and gadgets such as smartphones and laptops.

This specific expansion of legitimate evidence can be exploited easily by law enforcement agencies to trap innocent people and accuse them of crimes they never did. This has happened several times in the past and false evidence has been implanted to be used as evidence against innocent citizens. The bill allows joint trials in which more than one person can be tried for the same offense. The bill states that in a joint trial, if a confession made by one of the accused, which also affects the other accused, is proven, it will be treated as a confession against both. It states that a trial of multiple persons, where an accused has absconded or has not responded to an arrest warrant, will be treated as a joint trial. Once again, there is a grave threat of its misuse.

Speaking to a prominent TV Channel, renowned human rights activist and Supreme Court lawyer, Colin Gonsalves said, “The laws enacted by this government are ten times more draconian than the British period.”

The Muslim community needs to constitute a team of legal and constitutional experts who will scan the laws for potential abuse and then approach the apex court to get relief from its negative externalities. This will require advocacy, political lobbying, and community education. We must heed what American writer Elie Wiesel said about civil liberties. He said, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”



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