The Editors Guild of India has written to Union home minister Amit Shah expressing concern about the effect of the new criminal laws on press freedom.

The letter includes a note on specific points of concern about the effect of the new criminal laws on journalism.

The letter points out that “between 2019 and 2023, a slew of legislation has been passed by Parliament dramatically expanding the reach of criminal laws… accompanied by procedures designed to expand police powers and truncate civil liberties.”

It adds: “Now, with the notification of the Bhartiya Nyaya Sanhita 2023 (BNS) and Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) to replace the Indian Penal Code 1860 and Criminal Procedure Code 1973, respectively, we feel there is even greater cause of concern.”

The letter makes a case for journalistic exception in filing of FIRs, pointing out that: “Far too often we have seen that process is the punishment and that there is a case for protecting members of the press/media from frivolous criminal complaints and indiscriminate state/police action in relation to acts done in the course of their duty. And we re-iterate, this has been the case under governments across party lines.”

The Guild’s letter points out specific points of concern for journalists in the new criminal laws. Here they are, verbatim:

On treason and the reintroduction of sedition

“Bharatiya Nyaya Sanhita 2023 [BNS] A. Treason (Section 152), and the re-introduction of Sedition a. The purported removal of the offence punishable under Section 124-A of the IPC, traditionally known as Sedition, was widely advertised at the time of passing the BNS. The section was put under abeyance by the Supreme Court in 2022, in response to a petition filed by the EGI, challenging the law, and after recording the Government's submission that it will reconsider the law. It is clear, however, that the removal of Section 124-A is only in letter but not in spirit, as it has been rechristened in the form of Section 152 BNS punishing "acts endangering sovereignty, unity, and integrity of India.

“b. Section 152 punishes conduct that "excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India". The kind of conduct is "words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise" or a person who "indulges in or commits any such act".

“c. Section 124-A IPC punished someone who "brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India" by way of "words, either spoken or written, or by signs, or by visible representation, or otherwise", where 'disaffection' included "disloyalty and all feelings of enmity".

“d. The scope of physical conduct under Section 152 BNS is clearly broader than 124-A IPC, as it now goes beyond speech acts (written or oral) to also cover use of financial means to achieve certain alleged objectives.”

On imputations prejudicial to national integration

“a. Section 197 of the BNS corresponds to Section 153B of the IPC, but it contains an important addition — it criminalises any person who "makes or publishes false or misleading information, jeopardising the sovereignty, unity and integrity or security of India." This is an extremely broad category of conduct. While there may be some means to determine 'false' information, there is no arbiter of what may be `misleading', and absolutely no objective means to determine when any purportedly false or misleading information 'jeopardises' the unity and integrity or security of India. What makes the provision even more problematic is that it is classified as a cognizable and non-bailaible offence.”

On organised crime and terrorism

“a. The BNS has introduced offences of Organised Crime (Section 111), Petty Organised Crime (Section 112) and Terrorism (Section 113) into the general criminal law. Prior to this, such crimes were prosecuted by way of specific statutes. In matters of organised crime, such statutes were passed by every state, largely modelled on provisions of the Maharashtra Control of Organised Crime Act 1999. Terrorism related offences had been dealt with under a federal statute, the UAPA.

“b. The potential for these offences to be misused for targeting journalists has become clear over the past decade. Organised Crime can include any person within its ambit who has two charge sheets or complaints against them pertaining to a host of allegations which can include mundane offences such as criminal breach of trust.

“c. The Terrorism offence is modelled on existing UAPA offences, which have been used with alarming alacrity against journalists. The introduction of Sections 111 to 113 in the BNS has not been accompanied by a repeal of these existing statutes at the state or federal level. What we have, then, is the possibility of the same alleged act being prosecuted under two separate statutes, which carry different procedural regimes for prosecution.

“d. Having the same offence prosecutable under two separate regimes, where one regime is clearly more severe in its curbing of personal liberty than the other, throws up critical issues of how police discretion shall be exercised when dealing with such cases.

Bharatiya Nagarik Suraksha Sanhita 2023 IBNSSI The BNSS contains a handful of critical changes that have significantly expanded the police power to prevent and investigate crime, at the expense of truncating protections for individual liberty. Besides being generally of concern for all citizens, the provisions are especially important for journalists.”

The BNSS, the Guild’s letter says, “contains a handful of critical changes that have significantly expanded the police power to prevent and investigate crime, at the expense of truncating protections for individual liberty. Besides being generally of concern for all citizens, the provisions are especially important for journalists.”

On arrest and bail

“a. There is a marked change in the length of possible pre-trial incarceration during an investigation. The existing rule restricting detention in police custody to only fifteen days and that too within the first fifteen days of arrest, has been changed. Under Section 187 BNSS, it appears that now detention in police custody can be granted within the first forty days of arrest for cases where alleged offences are punishable up to 10 years, and within the first sixty days of arrest for cases where alleged offences are punishable beyond 10 years. The language is also unclear as to whether the maximum permissible period for detention in police custody is limited to fifteen days.

“b. There is an important change to provisions regarding default bail where persons have spent more than half the maximum possible jail sentence as an undertrial. Section 479(2) drastically alters this rule, specifying that in any case where the "investigation, inquiry or trial" is pending in "more than one offence or in multiple cases", it would nullify the mandate to release a person on bail. Since police invoke more than one offence routinely while registering cases, such a qualification has practically rendered the beneficial rule practically redundant.

On powers of search and seizure

“a. There is no change to the antiquated regime governing the search and seizure powers of police, barring insertion of 'electronic communication' and 'communication device' in Section 94 [which corresponds to Section 91 of the Cr.P.C.j. The problems with that regime of search and seizure are well known and the subject of litigation that is pending before the Supreme Court. In essence, the regime (i) confers wide and arbitrary powers upon police enabling erosion of privacy disrespecting the proportionality principle and (ii) permits violations of the right against compelled self-incrimination.”

On attachment & confiscation of proceeds of crime

“a. A significant new feature of concern is contained in Section 107 of the BNSS, which has inserted provisions for 'attachment, forfeiture or restoration of property'. In one fell swoop, BNSS now carries provisions akin to PMLA allowing for forfeiture of property of persons. The provisions are comparably broader and more draconian than the PMLA

i. PMLA applicability is restricted to allegations arising in certain kinds of cases identified as 'Scheduled Offences' and enables attachment of property that may have been derived out of commission of these offences. However, Section 107 applies to property that may be derived or obtained, indirectly or directly, as a result of a "criminal activity or the commission of any offence". ii. PMLA only allows for attachment of property during the pendency of a case, permitting the actual confiscation of property after a conviction is delivered by the criminal court. Section 107 BNSS allows for confiscations even without any conviction, and does not envisage any redressal mechanism in case a person is eventually acquitted at trial.

“b. The breadth of Section 107 makes it a highly charged tool in the hands of the police, allowing for targeting movable and immovable assets of any potential accused (read journalist / news organisation) and even securing orders for confiscation all during the pendency of a trial.”