Why Changes to India’s Colonial Criminal Code Concern Christians

On June 23, authorities arrested Sarju Prasad, a pastor in Uttar Pradesh, for conducting Sunday worship in his house. Earlier that day, two Hindu men, one claiming to be a journalist, had entered his house during the morning service and taken photographs.

That evening, two policemen detained Prasad on charges of plans to commit cognizable offenses. However, their explanations only came out later; at the time, they did not notify him of the grounds of arrest, a violation of India’s Code of Criminal Procedure. They also ignored the procedure’s requirement that the offender be brought before a judge within 24 hours of being taken into custody.

Instead, Prasad was only presented before a magistrate two days later and was released on bail on June 25. Shortly after, on July 2, while collecting his cell phone at the police station, authorities re-arrested him, saying that he had violated the state’s anti-conversion law. This time, he was denied bail and is now in prison.

Prasad’s case is just one of many where the local police have allegedly colluded with Hindu extremists and arrested Christians conducting peaceful prayers, tyrannizing their rights. Indian Christians are apprehensive about what might happen under the new criminal laws that have replaced their three British-era counterparts. Described as “draconian” by some legal experts, the legislation has elicited criticism and protests, and Christian, Muslim, and other vulnerable communities fear possible abuses of the new laws.

The Parliament of India approved the three new laws last December without following due process, according to the opposition. They replaced the Indian Penal Code with the Bharatiya Nyaya Sanhita (BNS), the Code of Criminal Procedure with the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Indian Evidence Act with the Bharatiya Sakshya Adhiniyam (BSA), all of which came into effect on July 1.

Proponents argue that these long-overdue reforms aim to modernize the justice system, leveraging technology to improve efficiency and accessibility, such as allowing police complaints to be registered remotely or permitting the use of videos as court evidence.

Further, India needs legislation “not based on colonial prejudices and practices but on the principles of access of justice to all,” said Rajiv Mani, secretary of the Legislative Department. “The three laws have hence been enacted to overhaul the criminal justice system in the country to make it citizen-centric.”

However, critics contend that the new laws grant the government excessive authority through the police to restrict free speech and to crack down on those who express dissent or criticism of the government, potentially infringing on civil liberties and disproportionately affecting minority communities.

For instance, Father Stan Swamy, an advocate for the tribals and the Dalits, was arrested under the terrorist act. Father Swamy believed this was a deliberate effort “to put me out of the way, and one easy way was to implicate me in some serious cases.” Despite his deteriorating health conditions and being 84, Swamy was ultimately denied bail and died while incarcerated in 2021.

Christians in India, who in recent years have been subject to violence and other persecution at the hands of Hindu nationalists and the police, now worry that speaking out about their plight could lead to prosecution. They have witnessed several cases where the police have been mere spectators while Hindu extremists barged into churches, disrupting services, vandalizing church property, and assaulting the pastor.

Christians have also been falsely implicated in the past for desecrating Hindu idols, such as when Hindu extremists planted broken idols near the property of a Christian man. Ironically, the same law is not applicable to Hindu extremists who desecrate Christian religious symbols.

In a more recent instance, on July 27, Hindu extremists entered a Catholic school in Madhya Pradesh and objected to the Christian religious symbols on the school premises and in the classrooms. In the presence of the police, they removed Christian images and symbols from the classrooms and installed pictures of Hindu idols. Yet no action has been taken against the mob—instead, against the school. These stories of police officers acting sympathetically to Hindu extremists means that minority groups fear nearly any legislation giving law enforcement officers more power.

Many already believe that the criminal justice system has been stacked against minorities: 76 percent of prisoners sentenced to death in India between 2000 and 2015 were from “backward classes and religious minorities,” according to a 2016 study.

As India grapples with these significant changes to its legal landscape, CT spoke with Robin Ratnakar David, a Christian and a lawyer practicing at the Supreme Court of India, to understand the implications of these new laws, particularly for India’s minority communities.

Were these new criminal laws necessary?

The new criminal laws largely repurpose and consolidate existing ones. While there are some new provisions, the essence remains unchanged, raising questions about the necessity of such an extensive overhaul when amendments could have sufficed.

For laws to be effective and just, they must be shaped by inclusive dialogue with various stakeholders, including legal experts, civil society organizations, and the affected communities. On the contrary, when these bills were passed in Parliament, no proper debate was conducted, as many ministers had been suspended.

If the goal was to modernize and improve the legal framework, overhauling the Police Act of 1861 would have been more impactful. Viewed widely as unprofessional, insensitive, brutal, and corrupt, this measure was designed for colonial control rather than public service. The British instated it after the 1857 Sepoy Mutiny, a rebellion against the British East India Company’s rule led primarily by Indian soldiers (sepoys).

The Indian government has previously recommended police reforms, and, in 2006, a Model Police Act was suggested, which was not fully implemented.

What aspects of the new criminal laws could pose problems for Christians and other vulnerable groups?

Previously, the laws concerning terrorism were only found in the Unlawful Activities (Prevention) Act, 1967 (UAPA), which is not related to the recently enacted three laws and is still in effect. Under this legislation, the police require prior written permission from the designated authority before seizing the property of the accused. Terrorism now also falls under the new BNS law and gives the police a free hand in seizing any property associated with the crime. The BNS’s definition of terrorism is also broader. The UAPA requires an intention to strike terror, while the BNS includes acts intended “to intimidate the general public or disturb public order.”

This overlap creates legal ambiguity, allowing the police free rein to decide whether to book a case under the UAPA or BNS. If the goal was to expand terrorism laws, amending the UAPA might have been more appropriate than introducing parallel but contradictory definitions in the BNS. There is speculation that including these provisions under the BNS could lead to its use disproportionately against minorities, as has been the case with the UAPA.

What other sections would you call out?

The BNS has another section that states that anyone who “excites or attempts to excite secession or armed rebellion or subversive activities” has broken the law. The broad and potentially vague definitions raise concerns about potential misuses against dissenters, activists, and minority groups.

This section (305d of the BNS) punishes the theft of vehicles, government property, religious idols, and icons with up to seven years’ imprisonment. There’s already concerns that this may be subjectively applied and used to target the Christian community.

What should Christians know about the BSA’s new provisions regarding admission of electronic evidence in court?

In 2014, India’s Supreme Court warned that electronic evidence can be easily altered, potentially leading to unfair trials if not properly protected. The new BSA allows electronic records as evidence in court, such as website content, text messages, server logs, computer/laptop/smartphone data, emails, location data, etc. However, it fails to include measures to ensure the authenticity and integrity of digital evidence. This lack of safeguards raises concerns about the potential misuse or manipulation of electronic proof in legal proceedings.

Christians who are in the habit of streaming their Sunday church services live and uploading their sermons and messages, prayers and prayer meetings, should keep all of this in mind. Christians should monitor and moderate content responsibly, as failure to manage content can lead to liability.

Christians should take extra care while posting content, ensuring it is respectful and appropriate. They must share only accurate and verified information. They must obtain permission before they share someone else’s content. And they must not post any defamatory or illegal material.

How do you respond to claims that these laws give police broader powers that could be misused against vulnerable communities?

Since this act has been recently enacted, it may be too early to comment definitively on the potential abuse of police powers.

An area of concern is that BNSS Section 187 allows the police to detain and question an accused person for a total of 15 days. That was the case earlier as well, but that was 15 days in a row, unlike in this new law, where the 15 days can be spread over 40 to 60 days of the total detention period of 60 to 90 days. This means that instead of being questioned for a continuous 15-day period, the police can repeatedly detain, release, and re-arrest the accused.

This approach could prolong the accused’s anxiety and uncertainty for up to three months, potentially being used as a means of harassment. It could also lead to the denial of bail for the entire period until the police exhaust the 15-day custody allowance.

There is a legitimate concern that this provision could be misused by the police as a means of undue harassment without corresponding provisions to address police misconduct. Petitions challenging the implementation of these laws have been filed in high courts and the Supreme Court.

Are some critics exaggerating the dangers while overlooking the real issue of legal awareness among minorities?

While some critics may emphasize the dangers, it is also crucial to address the real issue of legal awareness among minorities. Ensuring that all citizens are informed about their rights and the laws can help mitigate potential misuse and promote fair enforcement. Increasing legal literacy and awareness can empower minorities and reduce the risk of discriminatory practices at the enforcement level.

Thus, while vigilance against potential misuse is essential, fostering legal awareness and education within vulnerable communities is equally critical to ensuring justice and equality for all.