Pranav Pai

Jul 2810 min read

India’s New Criminal Laws: Clearing the Cloud of Confusion and Controversy

By Pranav Pai

Keywords: New Criminal Laws, Swadeshi, Law Commission of India, Amendment, Privacy, Right to Information

I. Introduction

After 77 years of independence from British rule, India has done away with the three foundational colonial-era criminal laws, namely the Indian Penal Code (IPC) of 1860,[1] the Code of Criminal Procedure (CrPC) of 1973[2] and the Indian Evidence Act (IEA), 1872.[3] These laws have been replaced by the Bharatiya Nyaya Sanhita (BNS), 2023,[4] Bharatiya Nagarik Suraksha Sanhita (BNSS) of 2023[5] and Bharatiya Sakshya Adhiniyam (BSA) of 2023[6] respectively, which aim to utilise technology and modernise judicial proceedings amongst other changes. While this revolutionary transformation of the criminal justice system from one based on foreign colonial ideologies and “dand” to one founded completely on Swadeshi, Indian ethos like “nyay”[7] is a "watershed moment"[8] in the legal jurisprudence of our country, it is cloaked in a giant cloud of confusion and controversy that has put the very rationale and effectiveness of the laws into question. This article aims to provide a commentary on the three new criminal laws by elaborating on their background and significance without delving deep into the legal provisions of the statutes. A comprehensive critique of the laws by analysing the political, legal and logistical issues raised by various stakeholders will also be dealt with, and finally, the article will contain the author’s suggestions to possibly clear the cloud of confusion and controversy surrounding the laws.

II. Background and Significance

Passed by the Parliament in December 2023, the new criminal laws were implemented on July 1st 2024, as stipulated by the Ministry of Home Affairs.[9] As stated by the Union Home Minister, one of the major reasons behind repealing and replacing the old yet constantly-practised criminal laws with the new laws was to bring about a “completely indigenous” criminal justice system reflecting the “Indian spirit”.[10] By formulating the new laws to be victim-centric and justice-oriented as opposed to the previous policy of “punishment and control,” the colonial footprint left behind in our country’s judicial system after nearly more than half a century of independence might finally be erased. The move certainly recognises the status of India as a completely decolonised, free nation which does not need to rely on any archaic alien/foreign laws and is well capable of enacting its own laws to look after its internal affairs. It also follows the Law Commission of India’s Fifth Report,[11] which advocates that “the entire legal code of India should be purely Indian” and if any British statute is still necessary, it should be replaced by an Indian law incorporating the required provisions.

In addition to this, imbibing modern-day science and technology in the new laws, such as e-filing of FIRs, digital charge-sheets, computerising every single police station in the country, using forensic sciences in offences punishable by 7 years and more and admissibility of electronic evidence, will make the investigation process more credible and speedier.[12] This is also in line with the 185th Law Commission Report 2003[13] and the Malimath Committee Report 2003[14] which recommended the use of modern-day technology and forensic sciences in the investigation procedure to make it more efficient and just.

A frequent occurrence in our judicial system is the delay in court processes like deliverance of rulings and framing of charges, which leads to a contravention of the principles of speedy trial as recognised in Bal Krishna Vidur v. State of UP.[15] By setting a deadline for completion of such processes, the pendency of cases and endless wait of parties for justice can be significantly reduced and thus not clog the functioning of the already overburdened judicial system.

Finally, another key concept to consider is the presumption of constitutionality in favour of the legislature. As dealt with in Kedar Nath Singh v. State of Bihar[16] and the Electoral Bonds case,[17] it was held that the underlying presumption of constitutionality is based on the legislature’s ability to gauge the needs and problems of citizens and frame policies to resolve them. Hence, proponents of the new laws can argue that the Parliament has framed and passed the laws after careful deliberation to achieve the social welfare of the citizens and are thus legally valid.

III. The Cloud of Confusion and Controversy

A. Political Implications

In a consultative democracy such as India, the law-making process before making a bill into law involves gathering opinions and critiques from all the lawmakers in the Parliament and giving them adequate time for the same. The bills can be put in the public domain to garner opinions,[18] which has been enshrined in the Pre-Legislative Consultation Policy of 2014[19]. Further, a standing committee comprising experts in the relevant field can also be constituted for a “detailed examination” of the proposed law.[20] This helps to pass effective laws which not only suit the needs of the people but are also carefully examined and amended before being implemented.

In light of the above, while the Union Home Minister declared that a “comprehensive consultation” involving various stakeholders on the proposed laws had taken place,[21] the real state of affairs seems to suggest otherwise. Firstly, the three new criminal bills were passed by the Parliament in the winter session, during which 141 opposition members were suspended[22] and were thus not present when the bills were deliberated upon and passed. Further, many contend that the initial deadline set for passing the bills did not give them adequate time for deliberation.[23] Secondly, the subject matter of the proposed bills was never placed in the public domain for recommendations.[24] Finally, the composition and diversity of members in the Committee For Reforms In Criminal Laws (CRCL), the committee tasked with providing a detailed analysis and report on the proposed laws, was a serious issue of concern. Several eminent members of the legal fraternity addressed a letter to the Committee’s chairperson[25] citing concerns about the inclusivity of the Committee while requesting other clarifications. Further, Right to Information (RTI) petitions on the three laws have been consistently rejected by the Courts and public authorities like the Home Ministry who have cited obscure reasons, one such being “disproportional diversion of resources.”[26] As held in Govt. of NCT Delhi and Anr. v. Mr Prajyot Singh Dhillon,[27] the public authority must put in efforts to collate and provide relevant information when asked under the RTI to not defeat its objective of transparency and fairness.

Therefore, failing to ensure transparency in the formulation of the laws and not obtaining or considering the views of the various stakeholders on such an issue of crucial importance can prove detrimental in the long run, forcing us to ask whether the fundamental legal principle of "listening to the other side"[28] should be extended to law-making as well.

B. Legal Implications

The introduction of the new laws gives rise to some major legal implications as well. Since the new criminal laws do not have any retrospective effect, they will only apply to cases filed post-July 1st 2024, whereas the old criminal laws will continue to apply to the plethora of pending cases filed before July 1st. This will lead to a parallel regime of the criminal justice system with two different sets of laws governing cases based on their date of filing, which can lead to confusion and delays in the judiciary for judges and lawyers alike.[29] Further, the dichotomy of cases into two groups, i.e., one comprising of the bulk of pending cases before 1st July 2024 on which the old laws apply and the other of the ‘new’ cases filed post 1st July 2024 governed by the new laws raises another pressing issue to highlight. As judges have timelines in place to deliver rulings and frame charges under the new laws, the question remains as to which group of cases will judges prioritize and further, whether focussing on the new cases will lead to neglect of the old pending cases and thus prove to be counterproductive to the problem of case pendency. The second aspect to consider is why the old laws were not amended to bring in the changes brought by the new laws, considering how “nearly 90%” of the provisions of the former have been imbibed in the latter.[30] For example, the contents of the BNS, 2023 remain largely the same[31] as the IEA, 1872, with some trivial changes being made such as changing or replacing the names of places used in the “Illustrations” of some sections.[32] In Cheviti Venanna Yadav v. State of Telangana,[33] it was held that the legislature possesses the power to amend laws even retrospectively, which can also serve the purpose of “enacting a fresh law to alter the foundation and meaning of the legislation.” Thus, amending the old laws would have solved both of the legal issues raised above while also effectively ‘decolonising’ the foundation of the laws. Coming to the use of forensic data and the admissibility of technological evidence under the new laws, the fundamental right to privacy of citizens[34] must be protected and not misused in any instance. In particular, Section 105[35] of the BNSS, 2023 deals with the recording of evidence during the search and seizure process, which can thus make personal information of individuals available in the judicial or public sphere. However, the section does not mention the period or location of storing and recording the data and what action will be taken in the case of data leaks and cyber breaches. The lack of clarity on this aspect can lead to the violation of the fundamental right to be forgotten,[36] which is enshrined and protected under Article 21[37] and also upheld in the recent case of Jorawar Singh Mundy v. Union of India and Ors.[38] The new laws remain completely silent on this aspect of individual privacy and thus there is a need[39] to protect the rights of stakeholders, failing which numerous instances of privacy breaches may take place and the foundation of a surveillance state[40] may come into being.

C. Technical Implications

While the enactment of new laws is important for developing the realm of legal jurisprudence, their effective implementation is equally important. Though the new laws seek to revolutionise criminal laws via science and technology, the ultimate success will depend on the training provided to various law enforcers like policemen and implementing the novel reforms in every part of the country. Moreover, setting a time period for judges to issue rulings and frame charges might prove detrimental to legal proceedings as a burden will be placed on them and not allow them to focus fully on the cases at hand.[41] Even in the sphere of legal education, the Bar Council of India has already stipulated that students and professors of law will have to study and teach the new laws; however, implementation of the same requires an overhaul of the syllabus, sparking considerable anxiety and confusion in law colleges across the country.[42]

IV. Conclusion

The introduction of the three new criminal laws has made the aspiration of Atmanirbhar Bharat a concrete reality while bringing forth reforms useful not only in the present time but also for the next 50 years.[43] However, the short-term implications of the new laws do not seem so bright,[44] with several loose ends and lingering questions. Bringing about revolutionary reforms in the foundational criminal laws and in turn judicial system of our country should not leave any space for haste, secrecy, privacy breaches and uncertainty in the minds of stakeholders. Hence, even at the present stage, the floor for recommendations and suggestions must be kept open and if needed, the implementation of the laws must be deferred to a time when the cloud of chaos is finally cleared.

References

[1] The Indian Penal Code (1860).

[2] The Code of Criminal Procedure (1973).

[3] The Indian Evidence Act (1872).

[4] The Bharatiya Nyaya Sanhita (2023).

[5] The Bharatiya Nagarik Suraksha Sanhita (2023).

[6] The Bharatiya Sakshya Adhiniyam (2023).

[7] ET Online, ‘Focus on ‘Nyay’ instead of ‘dand’: Amit Shah welcomes ‘swadeshi’ criminal laws’ (Economic Times, 1 July 2024) <https://economictimes.indiatimes.com/news/india/criminal-justice-system-becoming-completely-swadeshi-amit-shah-on-new-criminal-laws/articleshow/111399264.cms> accessed 15 July 2024.

[8] HT News Desk, ‘CJI Chandrachud on enactment of three new criminal laws: ‘India is changing’ (Hindustan Times, 20 April 2024) < https://www.hindustantimes.com/india-news/cji-chandrachud-on-enactment-of-three-new-criminal-laws-india-is-changing-101713598913493.html> accessed 15 July 2024.

[9] The Hindu Bureau, ‘Three criminal laws to be effective from July 1’ (The Hindu, 24 February 2024) <https://www.thehindu.com/news/national/three-newly-enacted-criminal-laws-to-come-into-effect-from-july-1/article67881602.ece> accessed 15 July 2024.

[10] Ministry of Home Affairs, ‘Press Release’ (PIB Gov, 1 July 2024) <https://pib.gov.in/PressReleaseIframePage.aspx?PRID=2030088> accessed 15 July 2024

[11] The Law Commission of India, Fifth Report on ‘British Statutes Applicable to India’ (1957).

[12] ibid 10.

[13] The Law Commission of India, One Hundred and Eighty Fifth Report on ‘Review of the Indian Evidence Act, 1872’ (2003).

[14] Committee on Reforms of Criminal Justice System, ‘Dr. Justice V.S. Malimath Report’ (2003).

[15] Bal Krishna Pandey Alias Vidur v. State of U.P. (2003) 12 SCC 186.

[16] Kedar Nath Singh v. State of Bihar (1962) SC 955.

[17] Association for Democratic Reforms & Anr. v. Union of India & Ors (2024) INSC 113.

[18] Prianka Rao, ‘Parliament as a Law Making Body’ (PRS India, 2 December 2014) <https://prsindia.org/files/parliament/discussion_papers/1417684398--Parliament%20as%20a%20Law%20Making%20Body_0.pdf> accessed 15 July 2024

[19] Ministry of Law and Justice, ‘Pre-Legislative Consultative Policy’ (2014).

[20] ibid.

[21] Saurav Das, ‘How Consultative Was the Framing of the Three Criminal Law Bills, Really?’ (The Wire, 24 August 2023) <https://thewire.in/government/how-consultative-was-the-framing-of-the-three-criminal-law-bills-really> accessed 15 July 2024

[22] The Hindu Bureau, ‘Parliament Winter Session Day 12’ (The Hindu, 19 December 2023) <https://www.thehindu.com/news/national/parliament-winter-session-day-12-live-updates/article67652975.ece> accessed 15 July 2024

[23] The Hindu Bureau, ‘Parliamentary panel on Home Affairs withholds draft report on Bills replacing criminal laws’ (The Hindu, 28 October 2023) <https://www.thehindu.com/news/national/parliamentary-panel-on-home-affairs-withholds-draft-report-on-bills-replacing-criminal-laws/article67466923.ece> accessed 15 July 2024

[24] ibid 21.

[25] LiveLaw, ‘Letter addressed to The Chairperson and Members, Committee for Reforms in Criminal Laws’ (Live Law, 16 July 2024) <https://www.livelaw.in/pdf_upload/pdf_upload-378381.pdf> accessed 15 July 2024

[26] Saurav Das, 'Extensive Consultations' Before 3 New Criminal Laws’ (Article 14, 3 June 2024) <https://article-14.com/post/-extensive-consultations-before-3-new-criminal-laws-says-modi-govt-but-won-t-give-any-details--665d33016aac0> accessed 15 July 2024

[27] Govt. of NCT Delhi and Anr. v. Mr Prajyot Singh Dhillon (2024) 2024:DHC:3743.

[28] Maneka Gandhi v. Union of India (1978) 2 SCR 621.

[29] Srishti Ojha, ‘Criminal Justice Reboot-12: What senior lawyers have to say about the three new laws’ (India Today, 30 June 2024) <https://www.indiatoday.in/law/story/criminal-justice-reboot-12-what-senior-lawyers-have-to-say-about-the-three-new-laws-2560210-2024-06-30> accessed 15 July 2024

[30] Hindustan Times Team, ‘Bulldozing three existing laws: Chidambaram slams govt over new criminal laws’ (Hindustan Times, 1 July 2024) <https://www.hindustantimes.com/india-news/bulldozing-three-existing-laws-chidambaram-slams-govt-over-new-criminal-laws-101719805152157-amp.html?utm_campaign=fullarticle&utm_medium=referral&utm_source=inshorts> accessed 15 July 2024

[31] ‘E-evidence, new criminal law, its implementation’ (The Hindu, 1 March 2024) < https://www.thehindu.com/opinion/lead/e-evidence-new-criminal-law-its-implementation/article67900858.ece> accessed 26 July 2024

[32] Anil Kishore Yadav, ‘Comparison Summary BSA to IEA’ pg. 2 (BPR&D) <https://bprd.nic.in/uploads/pdf/Comparison%20Summary%20BSA%20to%20IEA.pdf> accessed 26 July 2024

[33] Cheviti Venanna Yadav v. State of Telangana (2017) 1 SCC 283.

[34] Justice K.S.Puttaswamy (Retd) v. Union of India (2017) 10 SCC 1.

[35] The Bharatiya Nagarik Suraksha Sanhita (2023), s 105

[36] ibid 34.

[37] The Constitution of India, art. 21.

[38] Jorawar Singh Mundy v. Union of India and Ors. (2021) SCC OnLine Del 2306.

[39] Ashish Tripathi, ‘Privacy of stakeholders needs to be protected under new criminal laws: CJI DY Chandrachud’ (Deccan Herald, 20 April 2024) <https://www.deccanherald.com/india/privacy-of-stakeholders-needs-to-be-protected-under-new-criminal-laws-cji-d-y-chandrachud-2-2987008> accessed 15 July 2024.

[40] AM Legals, ‘Digital Revolution in Indian Criminal Laws: Safeguarding Privacy Amidst Technological Progress’ (AM Legals, 3 July 2024) < https://amlegals.com/digital-revolution-in-indian-criminal-laws-safeguarding-privacy-amidst-technological-progress/> accessed 15 July 2024.

[41] Live Law News Network, ‘Transforming Justice: A National Conference On India's New Criminal Laws’ (Live Law, 4 July 2024) <https://www.livelaw.in/lawschool/news/transforming-justice-national-conference-new-criminal-laws-262220> accessed 15 July 2024.

[42] Nirbhay Thakur, ‘Questions, concerns galore as students tackle transition to new criminal laws’ (The Indian Express, 14 July 2024) <https://indianexpress.com/article/cities/delhi/questions-concerns-galore-as-students-tackle-transition-to-new-criminal-laws-9451949/> accessed 15 July 2024.

[43] ibid 10.

[44] Akriti Anand,’ New criminal laws may create ’confusion’ amid loopholes: What we need to know’ (Live Mint, 1 July 2024) <https://www.livemint.com/news/india/new-criminal-laws-may-create-confusion-amid-loopholes-explained-11719599808832.html> accessed 15 July 2024.

Pranav Pai is currently a third-year law student at Jindal Global Law School. His areas of interest include Criminal, Constitutional and Property Law and writing Legal/Legislative commentaries.