On 1 July 2024, the criminal justice system in India underwent a seismic shift with the coming into force of the three new criminal laws – the Bhartiya Nyaya Sanhita (replacing the Indian Penal Code 1860, ‘IPC’), the Bhartiya Nagrik Surakhsa Sanhita (replacing the Criminal Procedure Code 1973, ‘CrPC’) and the Bhartiya Sakshya Adhiniyam (replacing the Indian Evidence Act 1872, ‘Evidence Act’).
In the one month since, courts across the country have grappled with interesting, and at the same time, challenging questions surrounding the applicability and interplay between the old regime and the new laws, and the impact of the changes captured under the new laws. While law enforcement agencies and courts across India get to grips with the new realities of the criminal justice system, the prevailing sentiment surrounding the new laws is one of confusion and discontent.
Through this piece, we will highlight the most significant reasons why the new criminal laws have attracted public criticism, and to what extent such criticism is warranted.
More importantly, we will point out how the new criminal laws signal a worrying trend in recent legislative activity in India, and argue that the introduction of the new criminal laws is indicative of the government’s misplaced priorities.
Were the Changes Required to Be Introduced Through New Legislation?
The new criminal laws introduce a host of encouraging and positive changes, which – if implemented well – can bring long-term sustainable changes to the criminal justice system in India. The introduction of the zero FIR under section 173 of the BNSS, the mandatory videography of crime scenes and encouragement of forensic inspections, and the increased use of technology in search and seizure methods are all changes that have the potential to bring positive growth in the investigation and trial of criminal cases. But while the positive nature of these amendments and tweaks remains undisputed (broadly speaking), the question still remains – whether it would have been wiser to have introduced these changes as mere amendments.
While hearing a PIL filed by the Secretary of the Dravida Munnetra Kazhagam (‘DMK’) party, the Madras High Court observed that the Union Government’s decision to repeal the erstwhile criminal laws was indeed strange – since the changes brought under the new criminal laws could have been introduced through a scale of comprehensive amendments instead.
Similarly, senior leaders of the opposition have also questioned the government’s efforts to brand the new criminal laws as being a departure from their ‘colonial’ predecessors – by pointing out that the bulk of the erstwhile legislations have been retained in the texts of the new criminal laws.
The fact is that the changes envisaged under the new criminal laws could most certainly have been introduced in the form of amendments. The introduction of new criminal offences (such as mob lynching, or chain snatching), procedural shifts (such as time-bound directions for pronouncement of judgments, and limited adjournments), or the use of technology in criminal processes (such as the service of summons through electronic means) hardly required the government to alter the fundamental structure of the erstwhile laws.
In fact, such changes have been successfully introduced through delegated legislation (in the form of notifications, rules and circulars) or specific amendments (such as the amendments to the CPC, or the arbitration act, in introducing time-bound processes) on multiple occasions in the past.
The Government’s narrative of shedding the colonial past through the introduction of the new criminal laws is also contradicted by the changes proposed in the new laws. While the repeal of the IPC has brought an end to the draconian section 124A, criminalising the offence of sedition, it has been replaced by an equally problematic section 152 in the BNS, which penalises any act that ‘endangers sovereignty or unity and integrity of India’.
And while the new criminal laws recommend a whole host of ‘forward-thinking’ changes in the criminal justice system, the actual investigation and trial infrastructure in India continues to remain as underdeveloped and lacking in material resources as it did before. Without the means to effectively implement the changes proposed through the new criminal laws, the changes fail to make any real or substantive impact on the pendency in the investigation and adjudication of criminal offences in India – and only bring cosmetic changes, which do more harm than good.
Clarity on the Applicability of the New Laws to Pending and Fresh Criminal Cases
From the 1 July 2024, police authorities, investigation agencies and courts now have to face an additional hurdle in the investigation and adjudication of criminal offences. Depending on when a crime is committed, when it is registered, and when it comes before the court, a different combination of the old and new criminal laws will be applicable to decide such cases.
This analysis will also be relevant for pending cases, and is especially significant in terms of the procedural safeguards provided under the erstwhile CrPC, and the newly introduced BNSS. However, it would not be amiss to wonder how such an analysis is doing any favours to a criminal justice system that was already bursting at the seams with pendency and fresh cases. In fact, it only increases confusion and disarray in the adjudication of criminal offences, by providing an additional layer of complication.
This was recently illustrated by a decision of the Punjab and Haryana High Court, which dismissed a petition to quash criminal proceedings under the erstwhile section 482 of the CrPC, since it had been invoked after the coming into force of the BNSS – and the petition, therefore, ought to have been filed under 528 of the BNSS.
While the jury is still out to assess whether the new criminal laws will bring any tangible positive change in India’s criminal justice system, what they have provided for now is a fresh source of delays and inefficiency. Cases and petitions which are inadvertently filed under the erstwhile provisions will have to be dismissed on technical grounds, or re-filed as per the new laws – which only serve the purpose of expending more judicial time and resources, without any meaningful outcome.
Misplaced Priorities
A major reason for the opposition to the introduction of the new criminal laws has also been the rushed manner in which these laws were transformed from bills into formal enactments – a process that should usually involve spirited public debate and discussion. Crucially, no such public debate or discussion was conducted about the new criminal laws. No law commission report was sought by the parliament, nor was there any detailed deliberation on the wholesale changes being proposed to the criminal justice system. Such a largely non-participative legislative process makes for grim reading, particularly when one considers (a) India’s status as the world’s biggest democracy, and (b) the significance of changes to the criminal justice system on human rights and personal liberties.
The lack of participative dialogue on the new criminal laws also lends further credibility to the argument that their introduction signals the government’s misplaced priorities when it comes to legislative action. As an illustrative example, contrast the rushed introduction of the new criminal laws with the draft labour codes which were introduced by parliament in 2020. Four years on, the new labour codes have still not been implemented across the country, since a number of states have yet to frame the underlying rules to enforce the labour codes within their own jurisdictions.
And yet, the time taken to implement the draft labour codes is not a cause for alarm or panic. A comprehensive overhaul of India’s labour laws is bound to require cooperative efforts between the Union and State Governments, with a whole host of stakeholder interests to account for. What is concerning, and disappointing, is that such efforts were not replicated in the introduction of the new criminal laws – which, some may argue, affect the human rights and civil liberties of Indian citizens in a far more impactful manner than the draft labour codes will.
The new criminal laws might well be a case of misplaced priorities after all, and the real effects of the aftermath of their rushed introduction remain to be seen. But in the face of further uncertainty, and confusion, there is a humorous silver lining for us to momentarily cherish.
Under Section 5 of the Official Languages Act 1963, every central act passed by the parliament, which has received the assent of the President, is required to be translated into Hindi. However, with the government’s recent trend of adopting Hindi names for its new legislations (with the Bhartiya Vayuyan Vidheyak Bill being the latest iteration), perhaps the real priority is to save public expenditure on such translations once and for all.
[Tanvi Dubey is an Advocate at the Supreme Court of India, who handles a wide range of civil, criminal, service and commercial litigation matters before the Supreme Court. Sumit Chatterjee is a civil and commercial lawyer at the Karnataka High Court, who also appears frequently before a variety of courts and arbitral tribunals in Bangalore. Authors would like to acknowledge the efforts of Mr. Vansh Chouhan, Mr. Dhananjay Gautam, Ms. Saima Haq and Mr. Madhav Jaiswal who assisted us especially with the research. You can reach out to the authors at tanvidubeyadvocate@gmail.com and sumitc99@outlook.com respectively.]