As Three New Criminal Laws Come Into Effect, Is India's Justice System Ready?

There are several potential obstacles that need to be overcome before the practical application of these laws.

Decolonisation cannot be reduced to a series of legal tweaks. Due to the ongoing effects of colonial legacies, our criminal justice systems need extensive structural reforms. 

(Photo: The Quint)

On 1 July, a street vendor was charged under Section 285 of Bhartiya Nyaya Sanhita (BNS) in a crowded neighbourhood of New Delhi Railway Station. A random case of alleged public encroachment is in the limelight because of the enactment of the new criminal laws.

In a massive overhaul of India's criminal justice system, three new laws – BNS, Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSAA) – which came into effect on Monday, 1 July, replaced the century-old Indian Penal Code (IPC), the Criminal Procedure Code (CrPc), and the Indian Evidence Act, respectively.

On 11 August 2023, Union Home Minister Amit Shah had tabled the three Bills, stating that the main aim was to promote speedy justice and vacate the criminal justice system of a colonial mindset. It is now clear, nevertheless, that this claim cannot be upheld.

In the new legislation, most of the provisions have been kept exactly as they were. Furthermore, decolonisation cannot be reduced to a series of legal tweaks. Due to the ongoing effects of colonial legacies, our criminal justice systems need extensive structural reforms.  

While the IPC has 511 provisions, BNS has 358. In addition, 20 new offences have been defined, and the severity of the penalty for 33 crimes have been increased.

A new chapter in the BNS also addresses Crimes against Women and Children, which includes acts of terrorism, organised crime, mob lynchings, kidnappings, and killings motivated by racial, caste, and communal grievances. 

The New Laws Are More Regressive

There are several sections in the new laws that are regressive in that they allow trials in absentia (conducting a criminal trial without the presence of the accused person in court), extend police imprisonment periods, and give the police enormous authority by employing ambiguous definitions of crimes. 

These laws rather than being reformative, as proclaimed, are made to give more power to the police.

Concerns about civil rights are also being raised by the advent of ambiguous crimes that grant substantial police authority. The increase of police custody from the 15-day maximum specified in the CrPC to a maximum of 90 days is one such significant modification to the BNSS.

As per Section 167(2) of the CrPc, a maximum of 15 days in police custody was required for an accused person before they may be taken to judicial custody, or jail. This was done to reduce the possibility of forced confessions and torture during detention, as well as to encourage the police to finish their investigations on schedule. 

The phrase "otherwise than in police custody" was removed from clause 187(3) of the BNSS, thereby enabling the police to hold an accused person for up to 90 days for any offences stated in the BNS.

As stated in Section 480(1) of the BNSS, an individual may be released on bail,

• If there are no reasonable grounds to believe that the person has committed an offence that carries a death sentence or life in prison.

• If the offence is cognisable and the person has been found guilty of a crime that carries a death sentence, life in prison, or a seven-year prison sentence.

• If the person has been found guilty twice or more of a crime that carries a three-year but less-than-seven-year prison sentence.

Other than the two circumstances listed in 480(1), there are no other guidelines for requesting bail. Moreover, the BNSS no longer has any laws pertaining to anticipatory bail.

Regarding the standards for granting anticipatory bail, the clause offers no guidance. So, the Bench considering such an application has total authority to hear a matter or not.

The provisions requiring the public prosecutor to be given a fair chance to be heard at the application hearing or guaranteeing the accused person's physical presence while seeking anticipatory bail were removed. 

Though the Supreme Court has put a hold on the use of sedition (Section 124A of now defunct IPC), the BNS has reinstated it as Section 153 with an even more broad meaning. The phrase "disaffection towards the Government established by law in India" has been removed in the new sedition law.

Although the new provision, inserted as Section 153, is more targeted than the previous one talking about secessionism, separatism, and calls for armed rebellion, it leaves plenty of room for interpretation because it does not include the test of incitement to violence or link the act to public order.

Although Section 153 of the BNS does not use the words "contempt" or "hatred" against the Government of India as it did in Section 124A, it is obvious that there is serious misuse potential as it replaces sedition.  

Reforms Should Not Only Be for Laws, but Also for Law Enforcement

There is good reason to be concerned about the institutional preparedness of these laws now that they have come into effect. Any law's content is put to the test when it comes to practical application.

There are potential obstacles to overcome when it comes to implementing the new laws, including those related to logistics, judicial capacity building, and guaranteeing fair access to justice.

An already overburdened criminal justice system could find it difficult to first assimilate the adjustments. It would take years for the new laws to develop.

This also applied to other laws, such as the IPC. When the stakeholders interact with the laws and the courts consider their interpretation, that is when the true test will start.

These difficulties highlight the necessity and significance of the thorough training that is being recommended. Law enforcement officers and court authorities must be prepared with an understanding of these rules for even the first registration of FIRs. 

There has not been a thorough evaluation of readiness conducted by various criminal justice system entities in various states.

They can preserve the equity and justice guaranteed by the Constitution, increase the effectiveness of case adjudication, and rebuild public confidence in the judicial system. It won't be sufficient to only list the number of training sessions and participants.

The stakes in terms of justice and liberty are simply too great for us to merely hope that our institutions have been sufficiently prepared.

These rules should be truly put into effect only after a comprehensive and impartial evaluation of the readiness of our criminal justice institutions across the country.

 (Kumar Kartikeya is a legal researcher. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)