Laws framed by Indians, for Indians and through the Indian Parliament: this is how the Union home minister, Amit Shah, described the new criminal law bills that were passed by Parliament recently. These laws are supposed to rid India’s legal system of the colonial imprint. India’s criminal justice system was in need of a rehaul and the laws bring in some welcome changes. Adultery has not been recriminalised; gender has been redefined to include transgenders; and the death penalty has been added to mob lynching, a transgression that rose sharply with the coming to power of the Narendra Modi government in 2014. Strangely, the National Crime Records Bureau has stopped publishing data on mob lynchings since 2017. Will the new legislation be effective in the absence of data? The claim of ‘decolonising’ India’s criminal jurisprudence has been further undermined by the retention of the language and, in some cases, the spirit of colonial laws. Mr Shah claimed that the section on sedition has been repealed. In truth, the law has changed in name only and is now even more draconian; Section 150 punishes acts deemed dangerous to sovereignty, unity and integrity with life imprisonment. The new laws have also brought terrorism, corruption and organised crime under the ambit of ordinary criminal law. Earlier, these crimes came under the purview of stringent special legislation since they upend the general protections by reversing the burden of proof on the accused. The new laws extend the duration of police custody of the accused: this can have serious implications for civil liberties. According to some estimates, the actual changes amount to only 20% of the new laws, most of which seek to strengthen the powers of the government and the police and reduce their accountability. These provisions, ironically, are consistent with the colonial legal edifice that the new laws are supposed to replace.

The function of laws is deterrence; but their impact is contingent upon the prevalent social milieu as well as their non-prejudicial application. For instance, the criminalisation of hate crime may not lead to their eradication as long as the communal fires that are being lit in New India with tacit or overt endorsement of the ruling regime and its patrons continue to burn bright. The pursuit of justice of countless Indians is made difficult by the State’s refusal to uphold laws, old or new. The reform of criminal laws must be concomitant with a broader push for emancipatory transformation to make laws effective.