New criminal laws increase police powers, reduce accountability

Draco was a 7th-century Greek lawmaker in Athens who created a legal code that gave very harsh punishment — hence the word Draconian. We in modern India have just made a terrifying caricature of constitutional democracy. The rights of our Opposition MPs have been trampled on in the manner in which 146 have been suspended from Parliament for reasons that do not merit silencing lawmakers who represent a quarter of the Indian people. But even more sinister is how the Narendra Modi regime passed laws that replaced the existing criminal laws while much of the Opposition was kicked out of Parliament.

The ancient Babylonians are said to have created the first legal code in the world. Contemporary laws must be critiqued by domain experts, but citizens need to understand what could happen if (and when) circumstance compels them to enter the labyrinth of the criminal justice system. We have laws today, presumably, for our safety and to prevent abuse of citizens by other citizens. But if we examine the new laws, we have just increased the powers of the police, and reduced their accountability.

We are moving further away from the liberal humane democracy we had set out to be at the time of the founding of independent India.

First, data according to the National Crime Records Bureau (2020) shows that the Dalits, the Muslims and the Tribals constitute more than 50 per cent of the prison population in Indian jails. This reveals that marginalised communities continue to be jailed (and tortured) in numbers larger than their share of the population. The reasons for this are societal prejudice and their lack of capacity to be heard by those who run the criminal justice system plus limited access to legal aid.

We have in India made some amazing films on the fate of ordinary citizens from marginalised social groups when they get trapped in the crosshairs of the law. There is the award-winning Court made in 2014 about the fate of a teacher, activist, and singer named Narayan Kamble who is arrested due to a certain prejudice against his protest songs that highlight the condition of manual scavengers who work without any protection. In 2021, we saw Jai Bhim, a gut-wrenchingly powerful film about a lawyer who helps a Tribal woman search for her husband who goes missing from police custody after he is arrested for robbery.

Now just imagine what can happen to people from precisely these sections of society when they head to a police station to seek justice. One of the most common complaints is the police do not register first information reports (FIRs) against powerful people, individuals, and sections of society. A five-judge bench in the Lalitha Kumari judgement of 2014 reinforced the obligatory nature of registering an FIR when a citizen comes with a complaint. However, human rights activists and lawyers have claimed that the new law gives the police the alibi of registering an FIR only after doing a preliminary enquiry.

So, let’s imagine that hypothetically, an individual from a minority community wishes to file a complaint against a powerful individual who threatens them with acts that amount to hate crime and speech. It is possible that the police will investigate and do a preliminary inquiry and then decide it may not add up to a criminal complaint.

As it is, some people rarely expect to be heard by the police, and now this will get worse. Imagine a Tribal or Dalit man or woman facing injustice/atrocity at the hands of their upper caste employers and/or residents of the village and going to file a complaint in a police station. Would they be heard?

Should they be picked up by the police for questioning, then custody, which was limited to 15 days in the old laws, can now go up to 90 days. Whatever safeguards there were against custodial torture have been thrown out. The identity of the police officer carrying out the interrogation reportedly no longer needs to be entered; the place and time of arrest need no longer be entered; and an injury report, where the prisoner is taken to a hospital, is not required. Moreover, legal aid from the point of arrest is not deemed necessary and becomes so only when the matter comes to court.

This article looks at a small aspect of the new laws: what can happen to a citizen when they go to lodge a complaint and what will be their fate if they get picked up on suspicion by the police trying to make a case. It’s just about the basic interface of citizens with police and greater power is now with the force even as they have less accountability. In terms of the overall legal changes being brought about in the Republic, this is just the tip of the iceberg.

Saba Naqvi is a journalist and author.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.