A Vacation Bench of the Supreme Court allowed the petitioner to withdraw his plea, saying the petitioner narrowly escaped imposition of costs for filing “cavalier, casual” petition.
| Photo Credit: Sushil Kumar Verma

The Supreme court on Monday dismissed a petition challenging the three criminal laws — the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Act.

A Vacation Bench of Justices Bela M. Trivedi and Justice Pankaj Mithal allowed petitioner-advocate Vishal Tiwari to withdraw, saying he narrowly escaped imposition of costs for filing the petition.

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“Your petition was filed in a casual, cavalier manner,” Justice Mithal told Mr. Tiwari.

“You have decided to withdraw. If you had argued more, we would have imposed costs on you… The petition is dismissed as withdrawn,” Justice Trivedi said.

Justice Trivedi noted the new Acts have not come into force so far.

The petition claimed the new laws, meant to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Evidence Act, suffered from “defects and discrepancies”.

The Lok Sabha had passed the Bharatiya Nyaya (Second) Sanhita, the Bharatiya Nagarik Suraksha (Second) Sanhita and the Bharatiya Sakshya (Second) Bills on December 21 last year.

President Droupadi Murmu gave her assent to the Bills on December 25.

The petition said the Bills were passed without parliamentary debate as most of the Opposition members were under suspension.

The plea had sought directions from the court for the immediate constitution of an expert committee to assess the viability of the three new criminal laws.

The three criminal laws to be effective from July 1.

“The new criminal laws are far more draconian and establish a police state in reality and violate every provision of fundamental rights of the people of India. If the British laws were considered colonial and draconian, then the Indian laws stand now far more draconian as, in the British period, you could keep a person in police custody for a maximum of 15 days. Extending 15 days to 90 days and more is a shocking provision enabling police torture,” the plea has said.

The Bharatiya Nyaya Sanhita encompasses offences, such as acts of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity of the country, in a new avatar of the sedition law.

According to the new laws, anyone purposely or knowingly, by words, either spoken or written, or by signs, by visible representation, by electronic communication, by use of financial means, or otherwise, excites or attempts to excite secession or an armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers the sovereignty or unity and integrity of India or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment that may extend to seven years and shall also be liable to fine.

According to Section 124A of the IPC, which deals with sedition, anyone involved in the crime may be punished with life imprisonment or with a three-year jail term. Under the new laws, “Rajdroh” has got a new term, “Deshdroh”, doing away with the reference to the British crown.

“Rajdroh” refers to a rebellion or an act against the ruler, while “Deshdroh” represents such acts against the nation.

Also, for the first time, the word “terrorism” has been defined in the Bharatiya Nyaya Sanhita. It was absent in the IPC. Under the new laws, a magistrate’s power to impose fines was increased as well as the scope for declaration of proclaimed offender.

New Delhi:

A parliamentary committee is likely to recommend re-criminalisation of the adultery law and criminalisation of non-consensual sex between men, women and/or trans members, as part of an overhaul of colonial-era criminal laws, sources said. The panel is studying three bills to replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act – the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, respectively.

The bills – tabled by Union Home Minister Amit Shah – were sent to the Standing Committee on Home Affairs, which is headed by BJP MP Brij Lal, for further scrutiny in August with a three-month deadline.

On Friday the committee met but did not adopt a draft report on the bills as opposition members sought a three-month extension. The next meeting will be on November 6.

On Adultery

The draft report is expected to recommend that adultery be made a criminal offence again – either by restoring the law struck down by the Supreme Court in 2018 or passing a new law.

In 2018 a five-member bench ruled “adultery cannot and should not be a crime”. “It can be a ground for a civil offense… for divorce…” then Chief Justice, Dipak Misra, had said, reasoning also that a 163-year-old, colonial-era law followed the invalidated concept of “husband is master of the wife”.

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The law then said that a man who had sex with a married woman – and without her husband’s consent – could face a five-year sentence if convicted. The woman would not be punished.

The report is likely to recommend that the struck-down provision on adultery, when brought back, be made gender-neutral, meaning the man and the woman could face punishment.

The unpublished draft report states: “For the sake of protecting the institution of marriage, this Section (497 of the IPC) should be retained in the Sanhita by making it gender-neutral.”

On Section 377

Meanwhile, the committee reportedly also discussed Section 377 – a British-era provision that criminalised homosexuality, and which was also struck down by the Supreme Court five years ago.

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The committee is expected to recommend to the government, which opposed decriminalisation of both 377 and 497, that “it is mandatory to re-introduce and retain Section 377 of the IPC”. 

The committee argued that although the court had found this section in violation of Articles 14, 15, 19 and 21 of the Constitution, provisions of Section 377 “remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality”. 

“However, now, in the Bharatiya Nyaya Sanhita, no provision for non-consensual sexual offences against male, female, transgender and for bestiality has been made.”

Other recommendations

Other likely recommendations are to increase punishment for deaths due to negligence from six months to five years, and reduce those for unauthorised protests from two years to 12 months.

The committee is also likely to say that the name Indian Penal Code be retained.