Decoding the second biggest legislative and decolonising fraud

The Parliament enacted three major criminal laws in December 2023: the Bharatiya Nyaya Sanhita, 2023 (BNS), replacing the Indian Penal Code, 1860 (IPC); the Bharatiya Sakshya Adhiniyam, 2023 (BSA), superseding the Indian Evidence Act, 1872 (IEA); and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), succeeding the Code of Criminal Procedure, 1973 (CrPC).

Union Home Minister Amit Shah championed these laws as a decisive break from the country’s “colonial past,” promising a criminal justice system rooted in Indian values and traditions. However, a meticulous analysis reveals that these laws are largely copies, replicating their predecessors with minimal substantive changes, masked by Sanskrit nomenclature and nationalist rhetoric.

This article argues that these laws constitute a profound legislative fraud under the guise of decolonisation. Furthermore, it contends that the Constitution of India, enacted in 1950, is a derivative instrument based on the Government of India Act, 1935, marking it as the foundational legislative fraud of independent India.

By examining the historical, philosophical, legal, and socio-political dimensions of these legislative frameworks, this article exposes the continuity of colonial paradigms, critiques the failure to engage with India’s ancient juridical traditions, and proposes a path toward genuine decolonisation grounded in indigenous legal principles.

The country’s legal history is a tapestry of sophisticated indigenous systems, disrupted by external invasions and colonial impositions.

Ancient Hindu texts like the Manu Smriti, Yajnavalkya Smriti, Brihaspati Smriti, and Kautilya’s Arthashastra provided comprehensive frameworks for justice, balancing retribution, deterrence, and societal harmony. These systems were disrupted by Islamic invasions from the 8th century and later by the British colonial rule, which introduced codified laws like the IPC, IEA, and CrPC.

While the IPC and IEA synthesised indigenous jurisprudence with colonial administrative needs, the CrPC’s Anglo-Saxon framework created a profound misalignment with India’s cultural ethos. The BNS, BSA, and BNSS, despite their decolonising rhetoric, fail to address this disconnect, replicating colonial structures with superficial changes. Similarly, the Constitution mirrors the Government of India Act, 1935, perpetuating a colonial governance model.

This article examines each law’s historical origins, critiques their superficial indigenisation, and advocates blending the Dharmashastras’ principles with modern innovations to achieve juridical sovereignty.

I. The Bharatiya Nyaya Sanhita, 2023: It is a rebranded Indian Penal Code, 1860.

India’s criminal justice system has deep roots in the sophisticated legal traditions of ancient Hindu civilisation, articulated in the Dharmashastras. These texts provided a holistic framework for justice, addressing crimes against property, persons, reputation, society, and the state.

Manu Smriti categorises offences like theft, murder, defamation, public nuisance and treason, prescribing punishments—gentle admonition, severe reproof, fines, or corporal penalties (including imprisonment and capital punishment)—based on the proportionality and the offender’s context (age, sex, occupation, wealth).

Yajnavalkya Smriti emphasises intent, ensuring punishments reflect the crime’s circumstances, while Brihaspati Smriti refines procedural aspects like evidence collection.

Kautilya’s Arthashastra introduces a utilitarian perspective, advocating punishments that deter future crimes and promote state stability. Together, these texts offer a nuanced, adaptable system that balanced individual accountability with societal harmony, suitable for India’s diverse society.

The Dharmashastras’ intellectual rigour is evident in their detailed taxonomies and principles of justice. For instance, the Manu Smriti’s individualisation ensured a thief’s punishment varied by socio-economic status, preventing disproportionate penalties. The Arthashastra’s emphasis on swift investigations maintained public trust, unlike modern judicial delays.

These texts were dynamic frameworks, allowing flexibility within the universal principles of dharma (righteous duty) and nyaya (justice), fostering equitable outcomes without sacrificing fairness.

The imposition of Hanafite law under Muslim rule from the 8th century introduced practices like amputation for theft and stoning for adultery, which clashed with Hindu customary laws. Despite this, Hindu practices persisted among the majority, creating a dual legal framework that varied by region and community. This fragmentation posed challenges for governance, as punishments differed widely, undermining consistency.

When the British East India Company assumed control after the Battle of Plassey in 1757, it encountered a chaotic legal landscape. Hanafite law was deemed inconsistent, with punishments either excessively cruel (mutilation) or overly lenient (fines for serious crimes), conflicting with British Enlightenment ideals.

Recognising the predominance of Hindu customary laws, the Company consulted Sanskrit scholars, regional administrators, and local elite, studying texts like Manu Smriti and Arthashastra.

The Indian Penal Code, 1860, spearheaded by Sir Barnes Peacock and Lord Thomas Babington Macaulay, was the culmination of these efforts.

The First Law Commission (1834–1837) conducted extensive consultations, as documented in the British Library’s India Office Records. The IPC’s taxonomy of offences, graded punishments, and emphasis on proportionality resemble the Dharmashastras. For example, Section 304A (causing death by negligence) distinguishes culpable and non-culpable acts, mirroring the Yajnavalkya Smriti’s nuanced liability. The IPC’s similarities to Hindu jurisprudence are not coincidental. British scholars like William Jones and Henry Thomas Colebrooke translated Manu Smriti and Arthashastra, enabling pragmatic engagement with Hindu legal traditions to govern a diverse population with minimal resistance. The IPC’s precision and comprehensiveness reflect the Dharmashastras’ rigour, making it a synthesis of indigenous and colonial elements rather than a purely alien imposition. Its stability, with only 76 amendments in 163 years, underscores its alignment with India’s socio-legal ethos, rendering it the most enduring substantive law in modern India.

The Bharatiya Nyaya Sanhita, 2023, was introduced as a decolonising reform to replace the “colonial” IPC. Amit Shah claimed that it would eradicate the “shackles of our colonial past.”

However, a comparative analysis reveals the BNS as a near-verbatim reproduction of the IPC, with minor rearrangements and cosmetic changes. For instance, Section 103 (murder) retains Section 302’s wording with slight rephrasing, and Section 4 introduces community service for minor offences, but these do not alter the IPC’s foundational framework.

The redefined “organised crime” (Section 111) codifies existing practices without innovation. Section renumbering (e.g., murder from Section 302 to 103) creates confusion without substantive purpose. The BNS’s legislative process, as documented in Lok Sabha debates, lacked consultation with experts or civil society, unlike the Dharmashastras’ community-driven approach.

The Sanskrit title “Bharatiya Nyaya Sanhita” (Justice Code) misrepresents its penal focus (danda), as nyaya implies a broader philosophical framework. By mischaracterising the IPC’s indigenous roots as colonial, the BNS uses cultural symbolism to deceive, constituting a legislative fraud.

II. The Bharatiya Sakshya Adhiniyam, 2023- A repackaged Indian Evidence Act, 1872:

The law of evidence is pivotal to a judicial system’s ability to uncover truth and deliver justice. Ancient Hindu jurisprudence, articulated in the Dharmashastras and Darsanas (philosophical schools including Nyaya, Vaisheshika, Samkhya, Yoga, Mimamsa, and Vedanta), developed a sophisticated epistemology centered on satya (truth).

This framework, emphasising rational and empirical methods over supernatural practices like trial by ordeal, distinguished Hindu legal traditions from contemporaneous systems in Mesopotamia, Greece, or medieval Europe.

The Dharmashastras, informed by the Darsanas, outlined six pramanas (sources of knowledge) for evidence collection: pratyaksha (direct perception), shabda (reliable testimony), anumāna (inference), upamana (comparison), arthapatti (postulation), and anupalabdhi (non-apprehension). The Yajnavalkya Smriti required corroboration of testimony, akin to modern cross-examination, while the Brihaspati Smriti prioritised pratyaksha in criminal trials, ensuring logical rigour and equitable outcomes.

Islamic invasions from 712 CE introduced Hanafite law, creating a fragmented judicial landscape. Hindu practices persisted among the majority, but evidentiary inconsistencies hindered uniform justice. British rule post-1757 found Hanafite rules inequitable and manipulable, prompting the codification of evidence laws.

The Indian Evidence Act, 1872 (IEA), under Sir James Fitzjames Stephen, synthesised Hindu epistemological principles with colonial administrative needs. Drawing on translations of the Manu Smriti and Yajnavalkya Smriti by scholars like William Jones and Henry Thomas Colebrooke, and consultations with local elites as documented in the Second Law Commission’s reports (1853–1861), the IEA reflected India’s socio-legal realities.

The IEA’s framework aligns closely with the Darsanas’ pramanas, recognising admissible evidence types: direct (Section 60, akin to pratyaksha, e.g., eyewitness testimony), oral/documentary (Sections 59–66, shabda, e.g., contracts), primary/secondary (Sections 62–63, pratyaksha/upamana), and circumstantial (Sections 6–55, anumāna). Its burden of proof rules (Sections 101–114) echo Mimamsa’s textual interpretation. With only 23 amendments in 161 years, the IEA’s versatility for civil and criminal trials, adopted in Malaysia and Singapore, underscores its synthesis of Hindu and Western thought.

Labelling it purely colonial ignores its indigenous roots, as its pramāna-based structure transcends linguistic form.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), enacted to replace the IEA, claims to indigenise evidence law but replicates its predecessor. Core provisions, such as evidence definition (Section 2 vs. Section 3), relevancy rules (Sections 4–50 vs. 5–55), and burden of proof (Sections 76–90 vs. 101–114), remain substantively identical. Section 63 (electronic evidence) merely codifies practices under the Information Technology Act, 2000, and Supreme Court rulings (e.g., Anvar P.V. v. P.K. Basheer, 2014), lacking innovation. Section renumbering and rephrased terms create confusion without substantive gain. The BSA’s legislative process, criticised in Parliament for its haste and lack of expert consultation, contrasts with the Dharmashastras’ collaborative approach.

The Sanskrit title “Bharatiya Sakshya Adhiniyam” (Law of Evidence) adds no value, as the IEA’s framework is inherently indigenous. The BSA’s cosmetic changes and Sanskrit title misrepresent the IEA as colonial, perpetuating a legislative fraud. This reliance on cultural symbolism to deceive the public reflects a broader trend of feigned indigenisation.

III. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)-A missed opportunity:

Hindu jurisprudence, rooted in the principle of dharma, offered a flexible, contextual justice system designed to regulate human conduct equitably. Unlike rigid legal codes, it emphasised adaptability within the universal ideals of rita (cosmic order) and satya (truth).

(The writer is a retired IPS officer and a former Director of CBI. Views expressed are his personal)