The debate on draconian laws has picked up steam with human rights lawyers and activists claiming that the new penal code provisions under the Bharatiya Nyaya Sanhita, 2023 on terror charges, bail provisions, police custody and powers of search and seizure need to have wider consultations before they become a law.
Colin Gonsalves, senior advocate in Supreme Court and cofounder of Human Rights Law Network said that the CrPC, which had its roots in the British era, was modified in Independent India to protect the rights of citizens but the arrests of activists, journalists and those protesting against the government policies under stringent laws like the Unlawful Activities Prevention Act (UAPA) or sedition and other charges under the Indian Penal Code (IPC) demonstrated the misuse of the laws over the years.
The need to bring in checks and balances before rolling out the revised laws is being stressed by a cross section of civil society activists who feel that measures like defining terrorism under the BNS (IPC) or plea bargain provisions can be misused or wrongfully invoked if it is made available under the regular penal provisions.
Gonsalves said that if the powers of search and seizures are transferred from the judicial magistrate to the executive magistrate, then the law has the potential of becoming more draconian as it gives the representative of the executive more power to interfere with crackdowns on publications and writers or activists leading to arrests and longer jail terms.
The complex investigations and trials of UAPA accused like Stan Swamy for his alleged role in the Bhima Koregaon case raised many questions on discretion behind arrests, slapping of terror charges, rights of arrested accused, bail provisions and remission of sentences.
The spotlight is now on the new laws proposed by the government to bring justice to citizens without infringing on their right to life and liberty.
Vipul Mudgal , director of Common Cause, said there has to be enough public consultation and detailed deliberations with all stakeholders, civil society, legal experts, and political parties across the board. “Parliament should also spend enough time deliberating these through the parliamentary committee system outside of the drafting committee. The drafts need to be placed in the public domain and relevant websites proactively inviting comments.”
