Student's Pen: THE SONNET OF LEGISLATURE ON THE STAGE OF SWARAJ

On July 1, 2024, India implemented a comprehensive overhaul of its criminal justice system by enacting three pivotal laws: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA), replacing the Indian Penal Code (IPC) of 1860, the Criminal Procedure Code (CrPC) of 1973, and the Indian Evidence Act of 1872, respectively.

This legislative transformation aims to modernize legal frameworks, incorporating provisions that address contemporary issues such as cybercrime, domestic violence, and drug-related offenses.

The BNS introduces a new chapter titled 'Crimes against Women and Children' to address sexual offenses more effectively, aligning certain provisions with the Protection of Children from Sexual Offences Act (POCSO). Notably, it stipulates life imprisonment or the death penalty for gang rape of girls under 18 years of age, reflecting a stringent stance on such heinous crimes. Additionally, the BNS defines terrorism as a punishable offense, encompassing acts that threaten the sovereignty, unity, and integrity of India, thereby criminalizing activities like armed rebellion and separatist movements.

The BNSS, comprising 531 sections, introduces timelines to expedite justice delivery, prescribing specific time limits for various stages of criminal proceedings, from investigation to judgment. The BSA, with 170 provisions, incorporates changes to adapt to contemporary technological advancements, ensuring evidence laws remain relevant in the digital age.

At the core of these legislative reforms lies the jurisprudential principle of deterrence, which posits that stringent penalties and efficient legal processes will dissuade individuals from engaging in criminal activities. This principle operates on the assumption that the fear of punishment serves as an effective mechanism to maintain social order and prevent offenses.

The new laws are framed as a step towards decolonization and southernization, replacing colonial-era criminal laws with provisions that reflect India’s indigenous legal philosophy and socio-political realities. By removing outdated British terminologies, incorporating traditional justice mechanisms, and aligning legal principles with Indian constitutional values, these laws seek to reclaim legal sovereignty from colonial vestiges. The emphasis on national security, digitization, and time-bound trials aligns with the Global South’s push for efficient and localized governance, distinct from Western legal frameworks. However, while these changes symbolize formal decolonization, their effectiveness in fostering true Swaraj—intellectual and moral self-rule—remains debatable, as they largely retain centralized state control rather than empowering communities.

Critiquing this deterrence-centric approach through the lens of Swaraj, as articulated by philosopher K.C. Bhattacharya, invites a deeper examination of the individual's autonomy and the collective moral consciousness of society. Bhattacharya's concept of Swaraj transcends mere political independence, emphasizing self-rule and the freedom of the mind from external domination. He advocates for an inner sovereignty, where individuals and communities are guided by their intrinsic moral values rather than imposed regulations.

From this perspective, a legal system heavily reliant on deterrence may be seen as undermining the individual's capacity for moral self-regulation, as it emphasizes external compulsion over internal ethical development. Such an approach could potentially lead to a society where compliance is driven by fear rather than a genuine commitment to justice and ethical conduct, thereby impeding the realization of true Swaraj.

From the standpoint of Swaraj, a just legal system should not merely coerce obedience through punishment but should cultivate an internalized sense of justice within individuals and communities. The new criminal laws, while modernizing procedures, largely reinforce top-down, punitive governance, contradicting the spirit of self-rule, moral autonomy, and community participation central to Bhattacharya’s vision of Swaraj.

The new criminal laws are heavily punitive and deterrence-based, reinforcing the idea that governance is maintained through fear of punishment rather than an individual’s intrinsic moral consciousness. Bhattacharya’s Swaraj demands that justice should be self-realized rather than externally imposed.

For example the new provisions prescribing the death penalty for gang rape of minors may create a perception of harsh justice, but it fails to address the root causes of such crimes, such as social conditioning, lack of education, or gender disparities. Swaraj-based justice would focus on societal transformation through education, dialogue, and moral evolution rather than punitive control.

If individuals obey laws purely out of fear rather than a sense of justice, society remains externally controlled rather than internally self-regulated. This perpetuates an illusion of order rather than fostering true Swaraj.

Swaraj emphasizes self-rule at the community level, where individuals and local bodies should have agency in resolving conflicts. However, the new criminal laws centralize legal authority, relying on state-imposed justice rather than community-driven solutions.

For instance the BNSS mandates strict time-bound investigations and centralized digital surveillance in criminal procedures, limiting the flexibility for local and culturally sensitive conflict resolution mechanisms such as Panchayats or restorative justice practices.

The over-centralization of criminal justice sidelines the ability of communities to self-regulate and resolve disputes based on shared moral values. This reinforces dependency on the state rather than encouraging self-governance, a fundamental requirement of Swaraj.

Bhattacharya’s idea of Swaraj extends to intellectual freedom—the ability to think, express, and critique freely without coercion. However, the new laws introduce ambiguous definitions of offenses related to national security and public order, which may criminalize dissent.

The BNS introduces "terrorism" as a criminal offense but uses broad definitions, criminalizing speech, writings, or actions that "threaten the unity and integrity of India." This vagueness risks being weaponized against political dissent or intellectual critique, thereby curtailing freedom of thought.

Swaraj is not just about being free from foreign rule but also about being free from mental and intellectual subjugation. If laws penalize individuals for expressing alternative political or social views, it leads to "intellectual servitude", where people follow laws without critically engaging with them. This is antithetical to Bhattacharya’s vision of an awakened, self-governing society.

The new laws focus on crime and punishment in a mechanistic manner, emphasizing longer prison terms and harsher penalties, rather than restorative justice principles, which align more closely with Swaraj.

Swaraj-based justice would prioritize rehabilitation, dialogue, and moral reformation over punishment alone. Legal systems should create conditions for individuals to reform themselves rather than be forcibly corrected. The new laws, by excluding restorative mechanisms, ignore the community-driven justice envisioned in Swaraj.

Concluding remarks: Inner Swaraj is India’s Foundation for a Just Criminal System

1. A legal framework truly aligned with Swaraj would prioritize:

2. Moral education and ethical self-regulation over external deterrence.

3. Localized, community-driven justice over excessive state control.

4. Intellectual freedom and legal empowerment over fear-based compliance.

5. Restorative justice over mechanistic punishment.