The introduction of the three new criminal codes by the Central Government — Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) — has sparked significant controversy. Bar Associations across India have expressed strong opposition, with some states, such as Tamil Nadu, forming committees to propose amendments. Despite the Central Government’s staunch defense of these codes, eminent lawyer and President of the Supreme Court Bar Association (SCBA), Kapil Sibal, has raised serious concerns about how these new codes fail to represent a break from the colonial past and why they contradict the constitutional ethos of India.

Perpetuation of Colonial Practices

Kapil Sibal argues that the new criminal codes do not signify a departure from colonial-era practices. Instead, they reinforce outdated and oppressive systems. One of his primary criticisms is the continued power vested in police officers to arrest individuals on mere suspicion without concrete evidence. Sibal highlights that in no other country can a police officer arrest someone and keep them in police custody for 15 days without substantial evidence. This power, he contends, is ripe for misuse and is a holdover from colonial rule designed to suppress dissent and control the population through fear and intimidation.

 Police Custody vs. Judicial Custody

Sibal emphasizes the problematic nature of police custody, where an accused person can be threatened or tortured to extract confessions. This practice starkly contrasts with judicial custody, where such inhumane treatment is not permissible. According to Sibal, if the government genuinely intended to shed the colonial past, it would have abolished the concept of extended police custody. Instead, the new codes allow police custody to be extended up to 60 or 90 days, far exceeding the initial 15-day period. This extension means that police can detain an accused intermittently over these extended periods, effectively denying them bail and subjecting them to prolonged periods of potential mistreatment.

Contradiction to Constitutional Ethos

The new provisions, Sibal argues, are fundamentally inconsistent with India’s constitutional ethos. The prolonged police custody undermines the principles of justice and human rights enshrined in the Constitution. By allowing police custody to be extended, the new codes facilitate an environment where the accused can be repeatedly subjected to coercion and abuse, which contradicts the constitutional commitment to humane treatment and fair trial.

Sibal expresses concern that under these new provisions, an accused person is unlikely to obtain bail within the extended custody periods. The current system allows for bail under certain conditions after 15 days, but the new codes would prevent this, effectively ensuring that no accused can secure bail within 60 or 90 days. This situation perpetuates the colonial legacy of using legal provisions to oppress and control individuals rather than protecting their rights and freedoms.

Kapil Sibal’s critique of the new criminal codes underscores the need for a legal system that genuinely reflects the values of justice, fairness, and human rights. By perpetuating colonial-era practices and extending police powers, the new codes fall short of these ideals and undermine the constitutional ethos of India. Sibal’s insights call for a revaluation of these laws to ensure they align with the principles of democracy and human dignity that the Indian Constitution upholds. The new criminal codes, in their current form, represent a missed opportunity to break away from the oppressive legacies of the past and build a more just and equitable legal framework for the future.