From naming the three new laws in Hindi; not making rape gender neutral; introducing community service as a punishment without defining it; allowing a police officer 14 days to make a preliminary investigation before registering an FIR — the Karnataka government has flagged key issues on the new criminal code to the Centre.

“While appreciating the need for de-colonisation, the content in the revised Bill merely reflects tokenism and ad-hocism,” an expert committee headed by Karnataka Law Minister HK Patil recommended to the Centre.

The 88-page report lists various provisions which it deems incongruous. The report was submitted to Chief Minister Siddaramaiah on October 17, 2023 after which it was forwarded to the Home Ministry. While criminal law, including all matters included in the Indian Penal Codeis part of the Concurrent List under the Constitution, since law and order is a state subject, states will play a key role in the implementation of the new Sanhitas.

Separately, Tamil Nadu Chief Minister MK Stalin and West Bengal Chief Minister Mamata Banerjee have written to Union Home Minister Amit Shah, seeking deferral of the implementation of the three new laws. As per a notification in the official gazette, the three laws are set to come into force on July 1.

“The replacement of the… three Acts has been done in haste without adequate deliberations and consultations. These enactments are falling within List III – Concurrent List of the Constitution of India and hence extensive consultation ought to have been done with the State Government. The States were not given adequate time to express their views and the new laws were passed by the Parliament without the participation of the Opposition parties,” Stalin had written to Shah.

Festive offer

On the title of the laws, the Karnataka government cited Article 348 of the Constitution which states that legislations introduced in Parliament must be in English. In his letter, Stalin had also flagged the Constitution, objecting to the use of Sanskrit words in the title of the laws.

Patil, speaking to The Indian Expresssaid that the Bharatiya Nyaya Sanhita aims to suppress anti-government voices since its provision could potentially render a hunger strike a crime.

“The rigorous form of Satyagraha or hunger strike is of great significance in India’s freedom history. It played a major role in our Independence movement and after attaining freedom, hunger strike has been a tool to caution the wrongdoings of the governments. It is unfortunate that this category of attempt to commit suicide is not decriminalised. This design of prohibiting the voice of the public amounts to violation of fundamental rights and denigrating the philosophy of Satyagraha,” he said.

Section 226 of the BNS states that “whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service.” In the IPC, Section 309, which criminalized attempt to commit suicide, was made virtually redundant through the introduction of the Mental Health Act, 2008.

The report also said that the revamped Codes should have adhered to the principles of “strict construction and maximum certainty” in defining the provisions.

While the BNS prescribes “community service” as a new form of punishment for certain offenses including criminal defamation, the law does not define what qualifies as community service. Legal experts have raised concerns that this move leaves vast discretion with judges.

“India is a secular country with people from various religions, castes, creed, culture etc. If the term community service is not defined and a blanket power is conferred on the law implementing agency, such a power may cause damage to the inner feelings, personal reputation and social status of a person against whom the punishment of community service would be imposed. In the absence of any such definition, the possibility of controversies arising over sentencing cannot be overlooked. For effective implementation of alternative modes of punishment such as Community Service, defining the same and giving some illustrations for community service as sentences are needed,” the report stated.

In the Bharatiya Nagarik Suraksha Sanhita (BNSS), the law that seeks to replace the Code of Criminal Procedure, Section 173(3) of the BNSS gives a police officer 14 days to conduct a preliminary inquiry to determine whether a prima facie case exists before registering an FIR. This is in contradiction with Section 154 of the CrPC and the Supreme Court’s mandate in the landmark 2013 ruling in Lalita Kumari vs State of Uttar Pradesh that the police must mandatorily register an FIR if the information received discloses any cognizable offence.

The report also questioned the exclusion of Section 377 of the IPC as declared by the Supreme Court after decriminalizing homosexuality. The BNS does not contain the provision, which is invoked in case of sexual assault where the victim is male. The report underlined that the rape provision must be gender-neutral to ensure legal remedy for male-rape.

“Sexual assault on male adult in India is not uncommon. Even the male adults are vulnerable to sexual crimes especially while they were detained in prisons or while they were temporarily staying with co male adults in institutions like boys hostels, working men hostels etc,” the report stated.

It also recommended introducing a new provision to criminalize insult to the national flag, national anthem and also Mahatma Gandhi.

“P makes a statement that ‘It is good that Gandhiji was killed, if I were to be his contemporary, I would have taken a chance to kill him.’ P has committed the offense under 150A,” the report stated as an illustration of the offense.