29 June 2024 : Indian Express Editorial Analysis

1. Why the hurry?

(Source: Indian Express; Section: The Editorial Page; Page: 12)

Topic: GS2 – Governance – Government policies: Interventions for development in various sectors

Context:

As we stand at the brink of new criminal laws coming into effect on July 1, confusion looms over the administration of justice. While there are some beneficial changes, significant concerns arise from regressive provisions expanding police powers and eroding civil liberties. Moreover, the readiness of our institutions to implement these changes is questionable.

Overview of New Laws:

• The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) will replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA), respectively.
• Although presented as decolonization efforts, 75% of existing provisions remain unchanged, highlighting a superficial legislative shift without addressing colonial institutional legacies.

What are the Various Crucial Changes Introduced in BSA, 2023?

• Precise Definition of “Document”: An illustration to the definition of “document” (which includes electronic and digital records) says that an electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence, and voice mail messages stored on digital devices are documents.

• Clarity With Respect to Primary (Electronic) Evidence: It says that where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings shall be primary evidence. This may help the investigating agencies in fixing culpability of a cyber-criminal even if he destroys his original electronic record to deny the allegations as it may be collected from other sources without its value getting diminished.

• Synchronisation with IT Act, 2000: Section 63, which deals with admissibility of electronic records, includes terms such as ‘semiconductor memory’ and ‘any communication device’ for better visibility. However, this does not change the impact of the provision because the definition of ‘electronic form’ given in the IT Act, 2000 includes information generated, sent, received or stored in ‘computer memory’.

What are the Main Features of the Bhartiya Nagrik Suraksha Sanhita Bill, 2023?

• It promotes the use of technology for trials, appeals, and recording depositions, allowing video-conferencing for proceedings.
• The bill makes video-recording of statement of survivors of sexual violence compulsory, which can help in preserving evidence and preventing coercion or manipulation.
• The bill mandates that police must inform about the status of a complaint in 90 days, which can enhance accountability and transparency.
• Section 41A of the CrPC will be renumbered as Section 35. This change includes an added safeguard, stipulating that no arrest can be made without prior approval from an officer at least at the rank of Deputy Superintendent of Police (DSP), especially for offenses punishable by less than 3 years or for individuals above 60 years.
• The bill requires that police consult the victim before withdrawing a case punishable by seven years or more, which can ensure that justice is not compromised or denied.
• It allows absconding criminals to be tried in-absentia by court and sentenced too, which can deter fugitives from escaping justice.
• It empowers magistrates to take cognizance of offenses based on electronic records such as emails, SMSs, WhatsApp messages etc., which can facilitate evidence collection and verification.
• Mercy petitions in death sentence cases to be filed within 30 days to the Governor and within 60 days to the President.
• No appeal shall lie against the President’s decision in any court.

Concerns with Police Powers:

• New provisions grant excessive powers to the police, such as extending custody durations significantly under Section 187 of the BNSS.
• Unlike the CrPC, which limits police custody to 15 days, the BNSS removes these restrictions, posing threats similar to those of past stringent laws like UAPA and POTA.

Civil Liberties at Risk:

• Vague definitions of offenses, such as “false and misleading information” and acts “endangering sovereignty,” pose significant risks to civil liberties.
• These provisions open the door to potential abuse, particularly against dissent.

Trials In-Absentia:

• The BNSS permits trials in-absentia, undermining the accused’s right to defense.
• This shift from the CrPC, which allowed only for evidence recording in the absence of the accused, marks a concerning departure from fair trial standards.

Questions of Repeal and Implementation:

• The retention of many existing laws raises questions about the necessity of repealing the old codes.
• Ambiguities in transitional provisions could lead to confusion in ongoing cases, particularly regarding the applicability of old versus new laws.

Institutional Preparedness:

• The lack of thorough assessment of institutional readiness across police, courts, and prisons is alarming.
• Without comprehensive training and evaluation, implementing these laws poses significant risks to liberty and justice.
• A delay in enforcement until adequate preparation is essential.

Conclusion:

• While the intent to reform is clear, the execution raises serious concerns about civil liberties, police powers, and institutional capacity.
• An independent audit of preparedness is critical before moving forward with these legislative changes.

What are the Key Highlights of the Proposed Changes in BNS?

Adultery and Gender-Neutral Provision: The parliamentary committee has recommended including a gender-neutral provision that criminalizes Adultery. This move comes after the Supreme Court (SC) declared Section 497 of the Indian Penal Code (IPC), which criminalized adultery, as unconstitutional in 2018. The panel seeks to protect the institution of marriage but in a gender-neutral way. Non-Consensual Sex and Bestiality: The committee is considering a clause to criminalize non-consensual sex between men, women, or transpersons, as well as acts of bestiality. This indicates an effort to address various forms of sexual offenses comprehensively. Definition of Terms: The committee has suggested better definitions for terms like “community service” and “life imprisonment” in the bill. Positive Changes: The new draft code has included the removal of Section 124A (Sedition) and provisions for prosecuting offenses committed in foreign countries.

Practice Question:  Discuss the implications of the new Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) on civil liberties and police powers in India. Evaluate the readiness of the country’s criminal justice institutions to implement these laws and suggest measures to address potential challenges. (250 words/15 m)

 2. A partnership of democracies

(Source: Indian Express; Section: The Ideas Page; Page: 13)

Topic: GS2 – International Relations

Context:

India and the United States have been close allies for over two decades, with evolving relations under the leadership of Prime Minister Narendra Modi and various US presidents. As India recently re-elected Modi, the US is preparing for its presidential elections, which will continue the established diplomatic trajectory.

Historical Context

• The relationship between India and the US has faced challenges, particularly during the Cold War and due to India’s nuclear program.
  • Nehru’s non-alignment policy and subsequent nuclear tests by Indira Gandhi and Atal Bihari Vajpayee strained ties, but efforts by Vajpayee and Clinton in the late 1990s began to mend relations, emphasizing shared democratic values.

Strengthening Ties:

• Under Modi, India-US relations have deepened significantly. Modi has visited the US multiple times, and his interactions with Presidents Obama, Trump, and Biden have highlighted the partnership’s evolution from “natural allies” to a relationship characterized by “hope, ambition, and confidence.”

Challenges and Strategic Differences:

• Despite strong ties, challenges persist. India’s commitment to “strategic autonomy” and reluctance to fully embrace the Quad as a maritime alliance have caused tensions.
• The US appears more focused on the AUKUS partnership, raising concerns about the Quad’s future role and the broader Indo-Pacific strategy.

What is QUAD?

• It is the grouping of four democracies –India, Australia, the US, and Japan.
• All four nations find a common ground of being democratic nations and also support the common interest of unhindered maritime trade and security.
• It aims to ensure and support a “free, open and prosperous” Indo-Pacific region.
• The idea of Quad was first mooted by Japanese Prime Minister Shinzo Abe in 2007. However, the idea couldn’t move ahead with Australia pulling out of it, apparently due to Chinese pressure.
• Finally in 2017, India, Australia, the US and Japan, came together and formed this “quadrilateral” coalition.

What is AUKUS Grouping?

• It is a trilateral security partnership for the Indo-Pacific, between Australia, the UK and the US (AUKUS) which was signed in 2021.
• The major highlight of this arrangement is the sharing of US nuclear submarine technology to Australia.
• Its Indo-pacific orientation makes it an alliance against China’s assertive actions in the South China Sea.
• It involves a new architecture of meetings and engagements between the three countries, as well as cooperation across emerging technologies (applied AI, quantum technologies and undersea capabilities).

Global Strategic Dynamics:

• India’s Foreign Minister Jaishankar has voiced concerns over a perceived imbalance in global governance, emphasizing the need for equitable rule-making. India’s stance on issues like terrorism, extremism, and a “rules-based order” highlights its desire for a more balanced global approach, reflecting sentiments from the Global South.

Conclusion:

• As global challenges such as the rise of China and new Cold War dynamics emerge, the US and India must enhance their understanding and coordination.
• This partnership, rooted in shared democratic values and strategic interests, will be crucial in shaping the future trajectory of international relations.

What are the Major Challenges between India and the US?

US Criticism of India’s Foreign Policy: If the Indian elite has long seen the world through the lens of non-alignment, alliance relationships have been at the heart of US’ foreign policy since the Second World War. India’s policy of nonalignment especially during the Cold War has always been a point of concern for the West, especially the US. After the 9/11 attacks, the US asked India to dispatch troops to Afghanistan; the Indian military vetoed the request. When the US invaded Iraq in 2003, even then India’s erstwhile PM withheld military support. Even today, India refuses to toe the American line on the Russian-Ukraine war and its import of cheap Russian oil continues to break records. Pro-US voices have often been raised demanding India to get “on the right side of history”. India’s Engagement with US Adversaries: India has criticised the US decision to block Iranian and Venezuelan oil from the open market. India has actively worked to bring Iran into the SCO (Shanghai Cooperation Organization). US’ Criticism of India’s Democracy: Various US organisations and foundations, from time to time, with the tacit support of some Congressmen and Senators, come out with reports questioning the present state of democratic discourse, press and religious freedom and condition of the minorities in India. Some of them include the International Religious Freedom Report 2023 and the Human Rights Report on India 2021 by the US State Department. Economic Tensions: The Atmanirbhar Bharat Campaign has exacerbated the view in the US that India is increasingly becoming a protectionist closed market economy. Effective in June 2019, the USA decided to withdraw duty-free benefits to Indian exporters under the GSP (Generalized System of Preferences) programme affecting India’s export-oriented sectors such as pharma, textiles, agri products and automotive parts.

PYQ: “What introduces friction into the ties between India and the United States is that Washington is still unable to find for India a position in its global strategy, which would satisfy India’s National self- esteem and ambitions” Explain with suitable examples. (250 words/15m) (UPSC CSE (M) GS-2 2019)

Practice Question:  Analyze the evolving strategic partnership between India and the United States over the past two decades. Discuss the challenges and opportunities in this relationship, particularly in the context of India’s stance on strategic autonomy and the implications for global governance and regional security frameworks like the Quad and AUKUS. (250 words/15 m)