Bharatiya Sanhitas Implemented: Myths and realities of decolonizing Indian laws

Many of the legal provisions of Sanhitas are the mirror reflections of the needs of Indian society.

By Prof (Dr.) Chanchal Kr Singh, Dr. Mritunjay Kumar, and Aastha Naresh Kohli

The passage of the three new criminal laws or Sanhitas has been declared as a “watershed moment” in Indian history by Prime Minister Narendra Modi. As per his opinion, the Sanhitas will enable the protection for the poor and vulnerable sections of the society, and will also help curb terrorism, organized crime, and other offences of such nature. Modi termed these criminal law reforms “relevant and empathy driven”.

Union Home Minister Amit Shah said, “British-era laws were made to strengthen and protect their rule and their purpose was to punish, not to give justice”. In his opinion, the purpose of new laws would not be “to punish anyone but to give justice and in this process, punishment will be given where it is required to create a sense of prevention of crime”. One of the chief objectives of bringing the Sanhitas, as outlined by the Home Minister, is to eliminate the words signifying the colonial nature of Indian laws. By reading the new Codes with critical insight, one may find out these objectives significant for realizing the idea of swaraj and suraj. But to implement these laws in its spirit would be a challenging task, keeping in mind the poor infrastructure of Indian courts in terms of digitalization and insufficient human resources to vitalize the legal system as relevant in this ‘information age’.

Codification in Historical Context

July 1, 2024 is a historic day for the Indian Legal System as these three new Sanhitas, (The Bharatiya Nyaya Sanhita, The Bharatiya Nagarik Suraksha Sanhita, and The Bharatiya Sakshya Adhiniyam) come into effect. The continuity of the old British-era laws was authorized by the Constitution of India under Article 372. This continuity for more than 75 years in independent India reveals many truths about the legal rationality as well as the nature of modern state and state's political powers. It is a historical fact that there has been no sincere attempt in post-colonial India to decolonize the imposed common law system.

The old criminal laws consisted of the codified “common law offences” developed by the British courts. Indian dominion was the most successful laboratory for these rules, which were replicated in other Asian and African colonies. The British common law system has had different experiences in the United States. Though devoid of its own legal and cultural history, the American administration and academics transformed the common law and polity to the extent that it is now known as the ‘American Common Law’. No serious attempt at change is noticeable in post-colonial India. The Indian Parliament ushered the judicial and law reforms through the codification of several laws, such as family laws and Social Security Code, etc. But the legal rationality has remained within the dynamics of a “positivized conception of law” transported in the Indian subcontinent.

There are huge neonatal debates on the colonial nature of Indian laws, which were conspicuously missing during the gestation period of the Indian republic. It is a well established fact that the art of codifying law was established by the British Raj. The First Law Commission under the chairmanship of Thomas B. Macaulay and James Stephens laboured for decades, so that the Raj could beget the first set of criminal laws for Indians.  The philosophy of Jeremy Bentham and John Stuart Mill provided the methods and epistemological contents of those codifications.

Compassion in Law

Are Indian Sanhitas, 2023 the written Codes of compassion? This question is inseparably connected to the legal reforms brought by the Government of India to achieve speedier and effective justice. As outlined by Shah, The Bharatiya Nagarik Suraksha Sanhita, 2023 is providing the various timelines within which the investigation, inquiry, framing of charges, and trials are required to be completed. These legal provisions are meant to eliminate the inordinate delay from which the Indian Legal System is suffering from since the inception of the republic. “Justice delayed is justice denied” or “process is a punishment” are some of the aphorisms used to express the structural challenges of the system. If these timelines are strictly adhered to and in case of failures, the accountability of the public authorities are fixed, only then the Indian Legal System can effectively respond to the existential call of the society. These changes are merely cosmetic in character, unless India does not learn from its spiritual history, the ethics of empathy and compassion in Indian laws would be an arduous task to achieve in the contemporary paradigm of law and legal system.

Institutional Challenges

In the current institutional configurations in India, it will be a difficult task for the Indian Legal System to cope up with many transformative normative changes brought by the Indian Parliament through these Sanhitas, especially in the context of “institutional fetishism” and “institutional conservatism”.

For example, first, the Indian Police System is a continuation of British colonial-era policing. In fact, contemporary England has completely left the colonial paradigm of policing and has made it more accountable and democratic as an institution. But the Indian Police System is still a vessel of arbitrary power, and its structural conjunction with the Government makes it prone to the gross abuse of powers. Many of the police personnel are dehumanized and mechanized and they are compelled to live a subordinate life to the political power. In spite of the guidelines passed by the Supreme Court of India in Prakash Singh v. Union of India (2006), the Indian Police System has remained a carrier of colonial legacy.

Second, the prosecutorial power is not accountable in the Indian Legal System. Many of the public prosecutors collude with other parties and do not play an active role in search of truth and the realization of justice. The Civil Law System is more responsive in terms of Prosecutorial powers. One of the biggest challenges for India is to establish and sustain the autonomous functions of the Police System and Prosecution from the political powers of the Government. This is the reason why the Indian Legal System is often unresponsive to the needs of the last person in the society.

Law and Technology

Law is not a universal reason of nature or an imperfect image of God. It is a function, a practice, or rather a technology. Its existence depends on the praxes to make it functional and equitable. Contemporary “information and technology” is the greatest enabler of access to law and access to justice. The Government of India has taken an appropriate step to integrate information and technology to enable access to law and efficacious judicial proceedings. The digital revolution in the Indian Legal System is yet to come, whose fragrance can be smelled in future history of India. Information and technology can also enable the accuracy and efficiency in the system, which will usher the higher conviction rates of the offenders of the crimes. Second revolutionary change is the mandate of using Forensic Science in investigation and appreciation of evidence, especially in the commission of heinous offences. These objectives can be fructified in a longer period of time, but many skeptics are raising the question if India is ready to face such challenges in the context of poor infrastructures of courts and inexperienced working staff. Digital revolution in the Indian Legal System is an aspiration which is still far away from contemporary reality.

Many of the legal provisions of Sanhitas are the mirror reflections of the needs of Indian society. But when it comes to compassion in law, these laws are not different from the “rationality of power”, which is the basic element of the modern law and legal system. To what extent is power compatible with compassion? This question requires a profound meditation to trace out their roots and their connection, if any may be discovered in future history of humankind.

Prof. (Dr.) Chanchal Kumar Singh is currently serving as Vice Chancellor (Officiating), Himachal Pradesh National Law University, Shimla.

Dr. Mritunjay Kumar, Assistant Professor of HPNLU.

Aastha Naresh Kohli, Advocate at High Court of Himachal Pradesh.

Views are personal and do not represent the stand of this publication.