The Three New Criminal Laws Betray a Narrow Spirit of Nationalism

The vaulting ambition of Prime Minister Narendra Modi to overturn the existing structures is the hallmark of his being at the helm in the last nine years and more.

Three new laws have replaced the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure Act, 1973 and the Indian Evidence Act, 1872 in the form of the Hindi-titled Bhartiya Nyaya (Second) Sanhita (BNS), Bhartiya Nagarik Suraksha (Second) Sanhita (BNSS), Bhartiya Sakshya (Second) Bill (BSB) respectively.

Union home minister Amit Shah, replying to the debate in Lok Sabha on Wednesday on the three Bills, argued like a right-wing nationalist politician that the colonial-era laws were meant only to defend British interests and that these new laws have been drafted to deliver justice and not just punish as was the intent of the earlier laws.

Shah indulged in partisan rhetoric. He said, “Under the leadership of Modiji, I have brought Bills that lay emphasis on Indianness, the Indian Constitution and the well-being of the people. The laws are being changed in the spirit of the Constitution.”

It is common knowledge that the Indian Constitution is in spirit an Anglo-Saxon one, with its emphasis on freedom, the rights of the people and democratic governance, which Indians never had in their 5,000-year-old history, despite Modi’s excessive claim that India is the mother of democracy.

Having said that, changes in laws, if they are for the better, are always welcome. What is to be looked at is the intent and spirit of the laws. If it is mere rewording of the old ones, it is a forgivable sin on the part of Shah and Modi. It is an infirmity of politicians that they want to credit themselves with the little things they have done and the big things they have not.

The basic principle of the English common law— the spirit behind the colonial laws— was that justice means not punishing the innocent, accepting that a person is innocent until proven otherwise and letting a hundred criminals go free rather than punish a single innocent person.

For many in India who have lived under the colonial laws before and after Independence, the Anglo-Saxon philosophy of law had no attraction.

Not that this idealistic principle of justice is alien to Indian culture. It is only that the deracinated right-wing nationalists of the Bharatiya Janata Party (BJP) kind and their admirers are not aware of it.

There is the shining example of Kannagi, the protagonist of the Tamil epic, Silappadikaram, who curses Madurai to be burnt down because an innocent man was put to death by the king, and that innocent man was her husband.

Many nationalist Indians, in their zeal to decolonise their minds, do not have the moral imagination that Ilango, the author of Silappadikaram had.

Similarly, for many Indians, especially the educated majority, the fundamental principles enshrined in the Preamble and the fundamental rights of Chapter III of the Constitution are contemptible things because they want a safe society even if it means living without basic freedoms.

This is not peculiar to educated Indians. It is a desire of many middle-class people everywhere in the world. That is why many Indians and others praise Singapore as the paradise of safety, and the absence of basic freedoms in the city-state does not matter to them.

Shah indulged in sophistry when he claimed that sedition as a crime had been removed from the new law because it was used by the British to imprison freedom fighters such as Balgangadhar Tilak, M.K. Gandhi and Vallabhbhai Patel— of course, he would not mention Jawaharlal Nehru who spent the longest time in British-era prisons because of the visceral hatred that his party and its mentor, the Rashtriya Swayamsevak Sangh, have for Nehru— but in the new law, those who speak against the country would be punished, though criticism of the government’s policies will not be because it is part of the freedom of speech.

Shah brought back sedition under a new rubric. Sedition in any democratic country is only when violent means are used to overthrow a democratically elected government, and it does not imply that you cannot speak against the country.

If a citizen says that India is a dirty country, that Indians are casteist and communal, that India’s past was in many ways unfair and unjust and undemocratic, they are not committing sedition. These are arguments that can and should be made in a free country.

The new law comes down heavily against it. It is not surprising that a right-wing BJP government, with its claustrophobic philosophy of blinkered nationalism, should be bringing in these laws.

A country that refuses to be self-critical is doomed. India became a backward country because it did not have a self-critical spirit.

The test of the pudding lies in the eating. So, whatever the merits or demerits of these new laws, it will depend on how the law and order machinery uses them and how the courts interpret them.

A colonial police structure whose main intention is to wield the baton to intimidate people can undermine the best of laws. A good law in itself is no guarantee that it will be administered justly.

A police force with casteist and communal prejudices can only inflict cruelty on helpless people. Judges who look over their shoulders at their political masters will never stand up for the wronged man or woman on the street.

Modi’s narrow-minded vision of a powerful India is at best a naïve one, and it is this naivety that lies behind the claims made for the laws by Shah.

These new laws are suspect because they emerge from a government with an authoritarian attitude, which believes in the fascist ideology of Mussolini: “Everything in the State, nothing outside the State, nothing against the State.”

Parsa Venkateshwar Rao Jr is a senior journalist and political commentator. He is the author of several books on Indian politics.