The British-imposed Code of Criminal Procedure (CrPC), based on Anglo-Saxon jurisprudence, disrupted this system, introducing an adversarial framework that clashed with India’s legal ethos. This mismatch led to systemic delays, denial of justice, and a vested interest class thriving on prolonged litigation. The post-independent CrPC of 1973 – molded on the colonial CrPC – exacerbated these issues through politicised prosecutions and plummeting conviction rates. The BNSS was expected to restore indigenous principles and expedite justice. Instead, it is a near-identical clone of the CrPC with a misleading Sanskrit title.

The sophistication of Hindu jurisprudence, as evidenced in the Dharmashastras and Arthashastra, was centered on dharma—the obligation to act rightly in context. The Manu Smriti emphasised flexibility, warning that uniform rules could lead to injustice by ignoring individual circumstances. The Yajnavalkya Smriti advocated mediation and community-based dispute resolution, while Arthashastra prescribed time-bound investigations to maintain social stability. This system promoted harmony in India’s diverse society, reducing the state’s role as a prescriptive lawmaker and empowering communities to resolve disputes equitably.

The Dharmashastras’ contextual approach contrasted with rigid legal codes, recognising the infinite socio-cultural complexities of human life. For example, the Yajnavalkya Smriti’s mediation practices resolved disputes without protracted litigation, while Arthashastra’s emphasis on swift justice prevented societal unrest. These principles ensured that justice was accessible and aligned with India’s cultural ethos, fostering public trust in the legal system.

British colonisation introduced an alien legal framework. The CrPC, rooted in Anglo-Saxon jurisprudence, imposed a rigid, adversarial system that prioritised legalism over justice. Unlike Hindu jurisprudence’s flexibility, the Anglo-Saxon model fostered confrontation, creating systemic tensions. This mismatch resulted in chronic delays, transforming litigation into a trans-generational ordeal. According to the National Judicial Data Grid (2023), over five crore cases are pending in Indian courts, with criminal cases constituting 30 per cent of the backlog. The average disposal time for a criminal case exceeds 10 years, rendering justice inaccessible.

The CrPC also created a class of vested interests, including lawyers, court officials and intermediaries—whose livelihoods depend on prolonging litigation. This perverse incentive structure, alien to the Dharmashastras’ focus on swift resolution, entrenched inefficiencies, eroding public trust. The CrPC of 1973 aimed to address colonial legacies but worsened flaws by separating prosecution from police, leading to coordination failures. Politicised appointments of public prosecutors, often lacking expertise, undermined the system, as noted by the Law Commission of India (Report No. 239, 2012).

Conviction rates for serious crimes like murder and rape dropped below 10 per cent in many states (NCRB, 2022).

In the 1990s, states like Tamil Nadu and Uttar Pradesh established Directorates of Prosecution led by Indian Police Service (IPS) officers, improving coordination and conviction rates (Tamil Nadu’s rate rose from 12 per cent to 25 per cent by 2000). However, the Supreme Court’s ruling in State of Punjab v. Surinder Kumar (2005) mandated that only lawyers or judges serve as directors, reversing gains. Pendency soared with estimates suggesting that clearing existing cases, without new filings, would take over 300 years (India Justice Report, 2023). The CrPC’s failure, compounded by detrimental judicial intervention, has dismantled the rule of law, a cornerstone of democracy and governance.

The Bharatiya Nagarik Suraksha Sanhita, 2023, promised to decolonise criminal procedure and expedite justice. Yet, it mirrors the CrPC of 1973. Core provisions, including arrest procedures (Sections 41–60, CrPC vs. Sections 35–50, BNSS), bail (Sections 436–450, CrPC vs. Sections 479–496, BNSS), and trial processes (Sections 225–265, CrPC vs. Sections 250–290, BNSS), remain unchanged. Aspirational timelines for investigations (Section 193) and trials (Section 346) lack enforcement mechanisms, given India’s overburdened judiciary and police.

The BNSS’s legislative process lacked stakeholder consultation, as noted in parliamentary debates, contrasting with the Dharmashastras’ community-driven approach. A dharma-based law would incorporate mediation or time-bound investigations, but the BNSS retains the CrPC’s adversarial framework, perpetuating inefficiencies. The Sanskrit title ‘Bharatiya Nagarik Suraksha Sanhita’ (Citizen Safety Code) misrepresents its purpose as a procedural law, since ‘Suraksha’ suggests security rather than criminal procedure law.

The Constitution of India: The foundational legislative fraud:

The critique of the BNS, BSA, and BNSS as legislative frauds parallels the Constitution of India, enacted in 1950. Often hailed as a beacon of sovereignty and democratic ideals, the Constitution is the first and most profound legislative fraud in independent India. It is no exaggeration to state that independent India began its journey with this significant deception. Primarily drafted by B.N. Rau, the Constitutional Advisor, is a derivative work, largely paraphrasing the Government of India Act, 1935, with superficial additions from foreign constitutions and embellished with anti-Hindu provisions (Articles 25–30).

The attribution of the Constitution’s authorship to B.R. Ambedkar has obscured its derivative nature. Ambedkar himself disavowed primary responsibility, stating in the Rajya Sabha on September 2, 1953: “People always keep on saying to me: ‘Oh, you are the maker of the Constitution.’ My answer is I was a hack. What I was asked to do, I did much against my will…. I shall be the first person to burn it out.”

By framing the Constitution as Ambedkar’s creation, its critics are silenced, as any critique risks being labeled anti-Dalit. Yet, the Constitution’s reliance on a colonial template undermines its claim to indigeneity, perpetuating a governance model disconnected from India’s civilisational ethos.

The colonised mindset and true decolonization:

At the heart of these legislative frauds lies a deeper malaise: the colonisation of the modern Hindu mind, which, despite its cultural assertions, remains more colonial than the colonisers. This colonised mindset manifests in two ideological subsets: the pseudo-secular left-liberal ideology, which prioritises western thought and models of governance, and the pseudo-Hindutva ideology of the Sangh Parivar (a collective term for Rashtriya Swayamsevak Sangh, its political arm Bharatiya Janata Party, and their affiliates), which cloaks colonial frameworks in Hindu rhetoric.

Both are complicit in perpetuating legislative frauds by failing to engage with India’s indigenous knowledge systems. The BNS, BSA, and BNSS, like the Constitution, are products of this mindset, prioritising form over substance and rhetoric over reform. To deliver swift justice, India must abandon the Anglo-Saxon legal framework and embrace its indigenous legal traditions. The Dharmashastras provide a procedural model emphasising flexibility, community involvement, and rapid resolution. For example, the Yajnavalkya Smriti’s mediation practices could alleviate judicial backlog, and Arthashastra’s time-bound investigations could expedite case disposal.

A new criminal procedure code should blend these principles with modern needs to enhance efficiency. True decolonisation requires more than superficial changes to colonial laws; it demands a cultural and intellectual renaissance, reviving Sanskrit scholarship and promoting civilisational discourse. Educational institutions should teach ancient indigenous law codes and systems alongside modern law to bridge ancient wisdom with contemporary challenges.

The BNSS, rather than decolonising, mirrors the CrPC with cosmetic changes and a misleading Sanskrit title, perpetuating legislative fraud. India’s demand for justice necessitates a return to Dharmashastra-based traditions to create a swift, equitable, and citizen-centric procedural system, reclaiming juridical sovereignty and restoring faith in the rule of law.

Genuine decolonisation demands more than cosmetic legal changes; it requires a cultural and intellectual renaissance to liberate the Indian mind from colonial paradigms. Reviving Sanskrit scholarship, integrating Dharmashastras into legal education, and fostering dharma-based public discourse can bridge ancient wisdom with contemporary challenges. These texts provide principles of proportionality, contextual justice, and truth-discovery, enabling penal, evidentiary, and procedural laws that prioritise mediation and community-based dispute resolution over adversarial trials. By returning to these indigenous traditions, India can craft a citizen-centric legal system, reclaim juridical sovereignty, and restore faith in the rule of law, transcending the legislative frauds of the past and present.

Conclusion

The Bharatiya Nyaya Sanhita, Bharatiya Sakshya Adhiniyam, and Bharatiya Nagarik Suraksha Sanhita, replicating the IPC, IEA, and CrPC with superficial changes and misleading Sanskrit titles, expose the falsity of the pseudo-Hindutva Sangh Parivar government’s decolonisation narrative. While the IPC and IEA synthesised indigenous elements, their colonial framing, alongside the CrPC’s Anglo-Saxon structure, perpetuates a legal disconnect, unaddressed by these laws.

Similarly, the Constitution, derived from the Government of India Act, 1935, and incorporating an anti-Hindu stance as in Articles 25 to 30, represents a foundational legislative fraud, disguising colonial continuity as postcolonial triumph.

Both reflect a colonised mindset prioritising rhetoric over substance. True decolonisation demands a return to India’s indigenous legal traditions and a rejection of the pseudo-secular and pseudo-Hindutva ideologies sustaining colonial legacies, enabling India to reclaim juridical sovereignty and deliver justice rooted in its civilisational ethos.

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