2023: India’s Bad Laws, what a weaponised state means for individual freedoms and indigenous rights Will the 30 bills passed without due process in four parliamentary sessions further curtail India's future rights and freedoms
04, Jan 2024 | CJP Legal Research Team
A total of four sessions were held by the Parliament in the year 2023 spanning a sum of 84 days. With the regular Budget session (January 31 to April 6), Monsoon session (July 20 to August 11) and the Winter Session (from December 4 to December 22), a “special session” in the month of September was also held, which lasted 4 days.
2023, the year saw a total of 47 bills being introduced, out of which 30 bills were passed by both the houses of Parliament. Since the Narendra Modi led government enjoys what has been termed as a “brute” majority in both the houses, most of the bills were passed without following due process, allowing for public participation or referring them for opposition views (and amendments) to select committees of Parliament. In essence, this means they were passed summarily without inculcating any of the changes. Many of these bills that have been thus inappropriately seen a passage through the union legislature have also promptly received assent of the President of India. They will therefore soon take the shape of laws.
So, last minute tabling of the law (curtailing public and media discussion), hasty passage without either critical discussions in the Houses of Parliament and thereafter the brazen bypassing of established parliamentary procedure became the established norm of this union government, a practice it has perfected since it first came to power in 2014. Parliament, meant to witness elected lawmakers –of all ideological hues– engage in debate over issues concerning the country, saw a dismal record of large numbers of opposition leaders being suspended from both Houses.
During the budget session, the opposition political parties had staged a protest against the disqualification of Congress leader Rahul Gandhi and demanded a JPC probe into Adani stocks. The Monsoon session saw the opposition parties’ outrage over the ethnic violence taking place in the state of Manipur. Throughout the monsoon session, the opposition parties demanded that the Prime Minister Narendra Modi at least make a statement on the targeted festering violence in Manipur since the May 3, 2023. Matters came to a head when a shocking video (first recorded in mid-May) of a ghastly gang rape and stripping of women became public on July 19. A total of 5 Members of Parliament (MP) were suspended from this session for various reasons.
The latest Winter Session marked a new low in India’s parliamentary democracy as a total of 146 MPs from the Opposition bloc were summarily suspended — 46 of the Rajya Sabha, and 100 of the Lok Sabha, as they clamoured for a statement by Union Home Minister Amit Shah on a breach of security that involved protesters gaining entry into the chamber of the Lok Sabha on December 13. Notably, 246 questions raised by them were deleted from the records. As opposition social media handles stated, the voices of 240 million Indians (who voted for these members) had been undemocratically silenced.
These protests and suspensions resulted in key bills being passed hurriedly, with little to no discussion. In many cases, the opposition even complained about the drafts of the bills being passed were not even available for scrutiny beforehand, underlying the riding rough shod over democracy by the majoritarian Bharatiya Janata Party (BJP) union government.
As we do each year, Citizens for Justice and Peace (CJP) takes a look back at the bills that were passed by the union government in 2023. The analysis is approached through the prism of basic human rights, fundamental rights and the Indian Constitution.
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Curtailing civil liberties, transforming India to a police state
Three bills were introduced in the Lok Sabha in 2023 that sought to repeal and replace the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872. In the Winter session of the Parliament, three bills, namely the Bharatiya Nyaya (Second) Sanhita, 2023 (“BNS”), Bharatiya Sakshya (Second) Bill, 2023 (“BSB”), and Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (“BNSS”) which were passed in the Lok Sabha on December 12, 2023, and the Rajya Sabha on December 20, 2023. On December 25, the three bills had received the assent of President Draupadi Murmu. These bills had been brought in with the stated objective of “reforming and de-colonising Indian criminal law”, having been presented as an exercise to indigenise the legal landscape of the country from one that was created during colonial rule. The details are as follows:
The Bhartiya Nyaya (Second) Sanhita Act, 2023- While the said act has majorly re-packaged the provisions available in the erstwhile Indian Penal Code, 1860, some significant changes have been brought in through the second version of the BNS bill.
The BNS Act contains several offences that overlap with special laws, which in many cases carry different penalties or provide for different procedures. This may lead to multiple regulatory regimes, additional costs of compliance and possibility of levelling multiple charges.
Furthermore, the said Act has also retained the offence of sedition (Section 150) with a new nomenclature and a more expansive definition of what will constitute “Acts endangering sovereignty unity and integrity of India”. Former union minister, present Rajya Sabha member and senior counsel, Kapil Sibal has analysed these new criminal laws, stating that they may allow for the use of “draconian police powers for political ends”. Under newly inserted provisions, he has pointed out, “action against Supreme Court and high court judges, magistrates, public servants, CAG (Comptroller and Auditor General), and other government officials”, could be initiated by the ruling government to exert pressure.
Another important change in the second version of the BNS Act is that is has totally excluded Section 377 of the IPC, which dealt with rape of men and bestiality as offences. Since the said new act does not making the offence of rape as gender neutral, there are now no safeguards against rape available for any other gender. It is critical to highlight that the said new Act had retained the marital rape exception, providing blanket immunity to husbands accused of raping their wives.
It is critical to highlight here that even at the time of writing this piece, protests are being held across the length and breadth of India over some of the provisions introduced by this Act. Through this Act, which was supposedly citizen-centric, stricter penalties and enhanced fines have been brought in without any discussions with experts.
One such example is of the offence ‘causing death by rash and negligent driving of a vehicle, not amounting to culpable homicide’, which has an aggravated punishment of ten years if the driver fails to report it to a police officer or a Magistrate soon after the incident. Against this particular new hit and run law, truck drivers have held countrywide protests, even state bandhs, compelling the union government to concede to their demand that the said new provision will only be implemented after consultation. While the Act (penal provisions) still anchor out-dated and feudal philosophy of harsh punishment, it has also introduced a new community service punishment without any public participation or discussion.
The Bhartiya Nagarik Suraksha (Second) Sanhita Act, 2023- BNSS Act seeks to replace the Criminal Procedure Code, 1973. Passed by the Parliament in the month of December 2023, the act has expanded the possible duration of police custody beyond the initial 15 days to up to 90 days of the arrest, heightening the risk of police excess and custodial torture.
Notably, this extended detention period applies to severe offences punishable with death penalty, life imprisonment, or imprisonment for at least 10 years while for “any other offence” with lesser imprisonment terms, custody extension beyond 15 days up to 60 days is permitted.
In addition to this, the new BNSS also suffers from a glaring gap is the absence of stringent and comprehensive data privacy regulations in this era of technology.
The Bhartiya Sakshya (Second) Act, 2023- The Sakshya Act retains the structure of the Evidence Act with most provisions unchanged.
More importantly, the scheme of legal relevance and conceptual definitions of the categories like “fact” and “evidence” have been left unaltered but for incorporating electronic evidence. The few changes that have been introduced through this Act is regarding streamlining the rules on electronic evidence, and expanding the scope of secondary evidence. Furthermore, the Act had added a new schedule to the legislation which prescribes a detailed disclosure format of the certificate earlier governed by a mere affidavit and self-declaration as to the genuineness of the contents of electronic records. Since this is merely a repackaged version of the “colonial legislations”, the question that it raises is whether these changes could have been brought to the former IEA through basic amendments.
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Right to privacy and digital rights
A total of three bills were introduced in the Parliament in 2023, namely the Telecommunications Act 2023, the Digital Personal Data Protection Act 2023 (DPDP Act) and the Broadcasting Services (Regulation) Bill 2023, which will have an impact on the digital sector in India. These bills and legislations directly impinge on the digital rights of an individual as well as the constitutionally protected right of privacy. These three, out of which two have already become an Act, will give the union government vast power to regulate (read: restrict) the content online, imperil encrypted communication, employ the tool of internet shutdown and intercept communications with minimal accountability.
All these bills and legislations have been greeted with serious criticism by experts and stakeholders for containing vague provisions and attempts to cause irreparable damage to user rights and democratic freedoms.
Since the Broadcasting bill, which seeks to regulate OTT platforms, is yet to be passed by the Parliament and is available for public consultation (until January 2024), we will not be referring to that in this piece.
Another blow to the digital rights and right to privacy was through the Registration of Births and Deaths (Amendment) Bill, 2023 which gave sweeping powers (and control) of birth, death registration data to the union government. This highlights the need to examine the serious implications of the said amendment as it acts as a precursor to the right to vote and is being brought in before the 2024 general elections.
The Telecommunications Act 2023: The Telecom bill was passed by the Lok Sabha on December 20 and the Rajya Sabha on December 21. It is critical to highlight here that the said bill had been passed by the two houses in the absence of the opposition members, as they had been suspended, and without any critical debate. This Bill was given the assent by the President on December 25 that is within four days despite this glaring lapse in parliamentary procedure.
The said act, which seeks to govern our telecommunication services, empowers the government to pause, suspend, intercept and detain transmissions and messages “during public emergencies to prevent incitement for committing offenses.” This particular measure provides officials with significant authority to monitor and manage messages across the entire telecom network on the broad grounds of public safety. In furtherance to this, the act has not legal established the power of the union government to impose internet blackouts without any statutory safeguards.
Additionally, this act has created uncertainty regarding its applicability to online communication services like WhatsApp, Zoom, Signal, Skype, etc. Ironically, even as the act was brought in under the guise of reforming the colonial legislation of its predecessor Telegraph Act of 1885, the Telecom Act 2023 hangs on to a majority of the colonial provisions while also expanding the surveillance power of the union government. One can surely say that with this act, the union government missed a huge opportunity to reform the telecommunication sector and create a rights-centric law that protects user rights instead of infringing on it and tightening the noose around an individual.
The Digital Personal Data Protection Act 2023: The DPDP Bill was passed by the Parliament in early August and soon got the assent of the President, becoming a law governing this country by August 11, 2023.
The drafting of this bill was shrouded in secrecy and drew the ire from activists and experts. To put it mildly, the said act provides governments unlimited powers to use citizens’ data, contains vague provisions and repeatedly uses the phrase “as may be prescribed” and transgresses against the Right to Information Act, resulting in having the potential to redefine the contours of data governance in the contemporary digital landscape. Through this legislation, the government has broad powers to exempt itself, demand information from companies, and retain data for an unlimited period of time, raising the risks of mass surveillance. In furtherance to this, under Section 37 of the Act, the government can block access to websites or content on advice from the Data Protection Board in case of repeated offences by the entity or in the “interests of the general public.” Thus, instead of having provisions that safeguards an individual’s right to privacy, the said act has legitimised discretion of various administrative agencies to indulge in rampant abuse or the exercise of excessive power.
The Registration of Births and Deaths (Amendment) Bill, 2023: The said bill seeks to make changes to The Registration of Births and Deaths Act, 1969 and allows the union government to build a central level data base of all deaths and births. The said bill was passed by the Lok Sabha without any debate or referral to the Parliamentary Select Committee and was then passed by the Rajya Sabha in the month of August. Through the amendments made by this bill, the state Registrars have been mandated to share their database with the Registrar General of India. In furtherance to this, upon approval of the central government, this database can be made available to authorities dealing with preparation or maintenance of databases relating to the population register.
As can be deduced from the provisions highlighted above, direct impact of these amendments will be on an individual’s right to data privacy as sharing of databases with any national authority just with the consent of central government or state government in cases of central and state databases respectively takes away any control the person has on their birth data.
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Environmental Rights and Forest Rights
The year 2023 saw the seamless passing of Biological Diversity (Amendment) Bill, 2021, the Forest Conservation (Amendment) Bill, 2023 and The Mines and Minerals (Development and Regulation) Amendment Bill, 2023. These bills, passed under the guise of “benefitting the environment and helping the country achieve its climate goals”, have weakened the safeguards that were existing against the exploitation of our precious forest resources to the exploitation by private companies.
The changes made also undermined the judicial decisions of the Supreme Court which furthered the principles and ethics of Indian environmental laws, depicting a ‘dereliction of duty’ on behalf of the State who is required to protect and conserve the environment. All the three bills had been passed as the opposition was protesting the Manipur violence, and this no debate had taken place. All the three bills got assent of the President of India in August itself, again within days of their being tabled and passed.
The Biological Diversity (Amendment) Bill, 2021: Through the said act, several controversial changes have been made to the Biological Diversity Act (BDA) 2002. The said amendments have watered down the provisions of fair and equitable sharing of the benefits of the parent Act under the guise of promoting “ease of doing business”. These changes have facilitated the commercial use of traditional resources to promote AYUSH industries, and fast-tracked the patent application process. In addition to this, the amendments have also decriminalised biodiversity offences and replaced them with penalties.
The Forest (Conservation) Amendment Bill, 2023: In the face of the criticisms and protests, the Parliament had passed the said contentious bill in both the houses of the Parliament. The said bill amended the parent Forest Conservation Act of 1980 and exempted land within 100km of border that is needed for national security projects, small roadside amenities, and public roads leading to a habitation from the purview of the forest conservation laws.
While passing the bill, concerns raised by forest dwellers, Adivasis, ecologists, biologists, and naturalists regarding the terrible effects of environmental degradation and climate change were totally ignored by the union government. Another change that was brought in by the bill was that no prior clearance was going to be needed for the construction of any strategic linear project of national importance.
The Mines and Minerals (Development and Regulation) Amendment Bill, 2023: The Bill empowered the union government to exclusively auction mining lease and composite exploration licence for certain critical high value minerals such as gold, silver, platinum, copper. The Bill also dispensed with the cumbersome forest clearances required for mine reconnaissance and prospecting operations, rendering it easier for the private firms to participate in exploration of the country’s mineral resources. It is critical to point out that the said bill allows pitting, trenching, drilling, and sub-surface excavation as part of reconnaissance, which had been prohibited under the parent Act, namely the Mines and Minerals (Development and Regulation) Act, 1957.
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Rights of media and censorship
A noticeable decline in media freedom has been observed in India in the year 2023, along with the country’s denigrating democratic credentials. Through two new legislations, details of which have been provided below, a threat to further increasing government surveillance looms over the media, which will undermine freedom of information and impact press freedom. With a dramatic rise in digital surveillance measures and increasing arrests of media workers on spurious terrorism charges, as became the norm in the year of 2023, the fear of underhanded state retaliation for investigative or critical journalism will promote censorship.
The Press and Registration of Periodicals Bill, 2023: The said bill sought to repeal the Press and Registration of Books Act, 1867 and provide provisions for press, registration of periodicals and for matters connected therewith or incidental thereto. This bill was passed by the Rajya Sabha on August 3, while the opposition was protesting and demanding discussion on Manipur ethnic violence, and by the Lok Sabha on December 21, as the majority of the opposition party members remained suspended.
While the new bill was brought under the spirit of upholding media freedom and ease of doing business, it carried forward the draconian provisions of the previous act as well as widened the powers of the State to have more intrusive and arbitrary checks into the functioning of newspapers and magazines. In the definitions section of the Bill, the term “specified authority” empowered government agencies beyond the Press Registrar to conduct the functions of the registrar, which could even include police and other law enforcement agencies. In addition to this, this bill contained such clauses that allowed the Registrar to deny the right to bring out a periodical, and to cancel the certificate of registration of a periodical, to persons convicted of “terrorist act or unlawful activity”, or “for having done anything against the security of the State”.
The Cinematograph Amendment Bill 2023: The said bill sought to make significant changes to The Cinematograph Act, 1952, tackle the issue of piracy by making it an offence that may be punishable with a fine or imprisonment and empower the central government to order recertification of an already certified film following receipt of complaints.
This Bill was passed by both the houses in July even as questions were being raised against the proposed certification process resulting in excessive censorship, potentially hindering artistic freedom and creative expression. Filmmakers had voiced their opposition to the said amendments by stating the proposed amendments will make them powerless at the hands of the state and more vulnerable to threats, vandalism and intimidation of mob censors. In addition to this, the Bill’s provisions regarding content regulation also sparked debates about potential infringement of the constitutional right to freedom of speech and expression.
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Right to health:
A total of 42 legislations were amended by the Jan Vishwas Amendments passed by the Parliament. These amendments, with the intention of decriminalising offences under them, have the potential of being hijacked by powerful lobbies for their own interests as manufacturers can now escape imprisonment by paying a paltry fine for sub-standard drugs. It is crucial to highlight here that before the bill was introduced in Parliament, neither a draft bill nor the accompanying policy document was published for consultation.
An example of this is how offences of a serious nature have been diluted by this amendment. Section 27(d) of the Drugs and Cosmetics Act, earlier punished several offences with imprisonment for a minimum of one year and maximum of two years and/or a fine of Rs. 20,000. The range of offences included the manufacture of “Not of Standard Quality” (NSQ) drugs in India as well as criminalised breach of licence conditions by proprietors of pharmacies. While both of these offences are of a serious nature, in the new Jan Vishwas Act, they have been converted into compoundable offences. The new amendment provides that on paying a fine of Rs. 20,000, first-time offenders can avoid the minimum prison term prescribed in the provision.
The Jan Vishwas (Amendment of Provisions) Bill, 2023: The said bill, passed by the Lok Sabha on June 27 and the Rajya Sabha on August 2, amid Opposition protests over Manipur violence had sparked a debate among health policy experts and activists due to its “lenient approach” to the crime of manufacturing “not of standard quality” (NSQ) drugs, having an adverse impact on public health.
The said bill had garnered criticism as experts and activists had pointed out to the unfair leniency that this bill was showing to “minor offences” and that less attention had been paid to the adverse impact that the legislation would have on the issue of regulation of pharmacies in India’s drug supply.
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Undermining verdicts of the Supreme Court:
This year saw the Parliament undermining and disregarding the verdicts of the Supreme Court that did not sit well with them by pushing through legislations. These bills, which had severe impact on the smooth and independent working of our Constitution, were then passed by the majority ruling government in the face of criticisms and protests. In one case, the bill brought in and passed by the union government raised questions on the independence and autonomy of the Election Commission of India ahead of general elections. On the other hand, the other legislation, namely the Government of National Capital Territory of Delhi (Amendment) Bill, 2023, undermined the federal structure established by the Indian Constitution.
The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023: On December 29, the president gave her assent to the CEC bill which seeks to regulate the appointment, conditions of service and term of office of the Chief Election Commissioner and other Election Commissioners, the procedure for transaction of business by the Election Commission and for matters connected therewith. The said bill, which will replace the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, was criticised for dropping the Chief Justice of India from its selection committee.
To provide a brief overview, in March of 2023 itself, a constitution bench of the Supreme Court had ruled that the election commissioners shall be selected by a committee comprising the prime minister, the leader of the opposition, and the chief justice, till the parliament frames a law prescribing the selection process.
However, within months of this judgment, the composition of the selection committee was modified by the union government by passing the said bill. This ensured that the selection committee is predominantly composed of members from the ruling government, potentially jeopardising the independence of the Election Commission of India.
The Government of National Capital Territory of Delhi (Amendment) Bill, 2023: On August 3, amid loud protests from opposition MPs who called it “unconstitutional”, the Government of National Capital Territory of Delhi (Amendment) Bill was passed in the Lok Sabha.
The said bill seeks to replace the Delhi Ordinance brought in by the Union government on May 19, 2023, overriding an order by the apex court which ruled that only Delhi’s elected government has authority over civil servants.
Through the Ordinance and the now passed Bill, the union government conferred powers over the transfer and posting of officers to the National Capital Civil Services Authority, breaking the triple chain of accountability established by the court that links the civil services, ministers, the legislature and citizens. One of the biggest criticisms of this bill is that it takes away the Delhi government’s power over services which in turn violates the Indian Constitution’s basic structure.
A read through the details of the legislations and bills mentioned above, along with the ignored criticisms, the suggestions that were not inculcated and fear of the misuse that was ignored, shows that the same will have a long lasting impact on the freedoms and rights guaranteed to an individual by India’s Constitution.
It is also pertinent to highlight the readers here that another legislations that another bill had been passed by the Parliament in 2023 during the special session of the Parliament in India’s new Sansad Bhavan.
The bill, known as the ‘The Nari Shakti Vandan Adhiniyam Bill’ or ‘The Women’s Reservation Bill 2023’, had also been passed by the Parliament in the month of September. The bill is the One Hundred and Twenty Eighth Amendment bill, 2023 to the Indian Constitution.
This bill seeks to reserve one-third of all the seats in the Lok Sabha for women, the state legislative assemblies and the legislative assembly of National Capital Territory of Delhi. The new bill will also apply to the seats that have been already reserved for the Scheduled Caste and Scheduled Tribe communities.
However, since the said bill can only be implemented after 2026, post conducting the delimitation exercise, it will not have any impact on our rights and freedom (or our lives) at present. Hence, the same did not make it to the list of legislations and bills above.
The question that this analysis should leave the reader with, in order to help one determine if the legislation is a good law or a bad law, is the kind of hope it gives one regarding the future of India and its citizens.
An overwhelming majority of the “laws” passed under the pretence of ending India’s colonial history paint an even more dismal picture of the country’s future.
In 2023, almost all the controversial laws that have been passed have a direct impact on the fundamental as well as the constitutional rights that have been guaranteed to the people of India by the Indian Constitution. These weaponised laws, far from ensuring an emancipated citizenry enjoying participatory rights in governance, in fact ensure dangerous tools in the hands of the state (government in power), tools that can be used to seriously erode and impact hard fought for social, economic, cultural and civil rights of all Indians. Instead of passage of laws that are in the people’s interest what we see in 2023 India is the re-emergence of a weaponised police state, albeit an authoritarian majoritarian one.
Detailing these serious drawbacks with regards to the individual’s rights and freedoms that these laws impact, we use the categories of ‘bad laws’ and ‘good laws.’
With the consolidation of such weaponised power in the hand of the state and its enforcement agencies, the future in 2024, for us, “We the People of India” looks constricted, even bleak. As Mohandas Karamchand Gandhi succinctly said,
“An unjust law is itself a species of violence,
Arrest for its breach, is even more so.”
And here we have a detailing of several such, adding to a black list that spans close to a decade.
Related:
Untouchability in 2023 garb: Dalits Speak Out
Hate slurs ensure a discriminated citizen: India’s Muslim voices speak up, 2023
Bail not Jail, India’s constitutional courts’ bumpy ride towards personal liberty
