The three criminal laws have been implemented in India on July 1, 2024. Indian Penal Code, 1860 has been replaced by Bharatiya Nyaya Sanhita (BNS); Code of Criminal Procedure, 1973, is replaced by Bharatiya Nagrik Suraksha Sanhita (BNSS); and Indian Evidence Act, 1872, is replaced by Bharatiya Sakshya Adhiniyam (BSA).
As a matter of fact, the implementation of new criminal laws is an exercise of cosmetic makeover, as the new laws have retained almost 90% provisions of the old laws, adding politically motivated harsh provisions which will impact civil liberties of the people. It is an old wine in the new bottle.
Defending the new laws, BJP national spokesperson Gaurav Bhatia said that the new laws are a symbol of India’s progress and resilience, positioning the country for a more just and secure future.
Minister of State for Law and Justice Arjun Ram Meghwal justifying the new laws said, “With changing times and new technologies, there must be improvement. Citizens were not receiving timely justice, so we have included Zero FIR, mercy petitions and gender neutrality. The system had issues, which is why changes are being made. New laws are people centric and timely aligning with India’s rapid development.”
The goal of the new laws is to take the conviction rate to 90%, which gives an indication that concept of ‘fair trial’ shall be sacrificed at the altar of ‘speedy trial’. One can imagine and examine the two extremes, where on one side, the inordinate delay of trials took up to 50-60 years, which is now reduced to time bound three years, without increasing the strength of judges/ courts. What will be the magic wand? The phenomenon of ‘insaf- fata- fat’ is most likely to do ‘raw justice’.
There are several human rights violations, such as re- introduction of handcuffing, which had been restrained by Supreme Court in Prem Shankar Shukla Vs. Delhi Administration (AIR 1980 SC 1535). Similarly, the new law provides for trial in the absence of the accused. If an accused in a case is at large and not traceable, courts may continue the trial without the presence of the accused. Where is the right to defence?
Senior Congress leader
P. Chidambaram said, “90-99% of the so-called new laws are a cut-copy- paste job. A task that could have been completed with a few amendments to the existing three laws has been turned into a wasteful exercise. Some changes prima facie are unconstitutional.
AIMIM’s Asaduddin Owaisi cited data showing a disproportionate number of undertrials in Indian prisons are Muslims. He argued that despite the repeal of ‘Sedition’, Section 152 of BNS, is dealing with ‘Secession’ or armed rebellion, which is a sort of revival of the repealed provision.
In June, 2024, a vacation Bench of the Supreme Court refused to entertain a petition filed by a lawyer challenging the three laws stating that it was premature as the laws were yet to come into operation. The lawyer Vishal Tiwari withdraw his plea, saving his arguments for a future date.
CPI (ML) MPs Sudama Prasad and Raja Ram Singh, on June 28, 2024, sought President Drupadi Murmu’s “urgent intervention ” to postpone the new criminal laws. They said several compelling concerns are being raised from various sections of society and the legal fraternity on this critical issue.
Earlier, West Bengal Chief Minister Mamata Banerjee had written a letter to PM Modi, requesting him to postpone the implementation of the new laws. In a strongly worded letter she wrote, “If you kindly recall, on the 29th of December, 2023, almost one hundred members of the Lok Sabha had been suspended and a total 146 MPs of both Houses were thrown out of the Parliament. The Bills were passed in an authoritarian manner in that dark hour of democracy. Matter deserves review now.”
Congress MP Manish Tiwari said, “These three new laws are pernicious in nature and dracinian in their implementation. They will throw a scanner in the works of Indian Criminal Justice System. From June 30,2024, midnight two parallel systems willl be in place. All those cases registered before June 30, 2024, midnight will be prosecuted under the old system and those cases registered after June 30, 24, midnight will be prosecuted under the new system. There are 3.4 crore pending cases and a bulk of them are criminal cases. So, there is going to be a big confusion.”
Erudite Senior Advocate Mahalakshmi Pavani, President-Supreme Court Women Lawyers Association, said,It is indubitable how the recently introduced criminal laws have not only been passed in complete haste without adequate deliberations, and consultations with all stakeholders before even introducing such a Bill in the House of Parliament. The fabled ‘House of People’ was indeed misled wherein the call to war was a complete upheaval of India’s colonial heritage vis-à-vis the previous criminal enactments. Whilst these crucial Bills have been passed in an autocratic and authoritarian manner, the irony is that a sizeable portion of the provisions have been copy pasted from the erstwhile criminal legislations, defeating the very agenda behind their call to war. Though their agenda was to castigate Lord Macaulay’s brainchild, yet the new legislations are infested with Lord Macaulay’s progeny so much so that the very scheme of chapterization, placement of provisions and overall scheme of legislation is identical. The BNSS, BNS and BSA, 2023 would govern every aspect of a citizen’s life.
If this kind of perception of authoritarianism and arbitrariness of any government with respect to the legislative process persists in the eyes of the public, then in the coming future, it can definitely lead to disillusionment and discontentment of the masses against this manipulative interplay happening between the parliamentary and political systems in the long run. Ensuring that laws are passed in a transparent and inclusive manner is crucial for maintaining public confidence in democratic institutions upholding the guiding principles and ideals of the Constitution of our country. There is a need to take into account the whole situation and mindfully assess the concerns of our fellow voters who believe in parliamentary system to protect, uphold and nurture democratic values in the best way possible.
Mahalakshmi further said, “Under Article 348 (1) (b) of the Constitution – “It is mandatory that all Acts passed by the Parliament shall be in English.” – Although the names of the three new laws are in Sanskrit, which violates Article 348 of the Constitution. Also, the new laws are almost same as the old laws and amendments here and there could have sufficed the purpose. However, the autocratic Government has imposed a legislative mayhem with the legislative scheme of sections by interchanging their places but keeping their contents intact which is just like serving old wine in a new bottle. It only makes one wonder- ‘What was the Government thinking? Why was there a need to fix a problem which never existed in the first place?’
The whole agenda of the said legislations being a colonial reminiscent is fundamentally obtuse, more so with regards to the Criminal Procedure Code, 1973 which was passed much afterwards, and in fact it was the criminal procedure code of 1894, which was colonial. In fact, history could not have been clearer in this regard, wherein the Law Commissions from 1961 to 1973 which sieved all laws which were a dire reminder of India’s sordid colonial past. So, if the law-makers couldn’t fact-check this issue in the first instance, I daresay I have little hope that the new enactments would reap any positive outcomes.
Mahalakshmi added, “The employment of ambiguous language seems intentional, autocratic and overall unnerving owing to the chilling effect the said ambiguity is said to ensue. Broad terms being used in the three criminal laws. For example, the replacement of “sedition” with “subversive activities”. Section 103 of Bharatiya Nyaya Sanhita (BNS) has two sub-sections for two distinct classes of murder but having the same punishment. Also, with respect to the increased detention periodin the new law has also been an issue of debate and discussion. For example, the Bharatiya Nagarik Suraksha Sanhita proposed extending the period of detention without charges from the current 60 days to 90 days, which raises questions of safeguarding individual rights and potential misuse of law.
1. Ambiguity and Broadness:
The term “sedition” is replaced with “subversive activities” in the new law. Sedition was actually challenged by way of a Writ Petition in S.G.Vomatkere in 2021 wherein a 3 judge bench referred this matter to a Constitution Bench of 7 Judges and when this is sub-judice, how could the new laws enact sedition by changing it to “Subversive Activities”. The question here is who are they trying to fool? Why are the public being misled into believing the government is doing them good by bringing in such laws.
-The term “subversive activities” is broad and could encompass a wider range of actions than “sedition,” potentially leading to misuse or overreach by authorities.
-Broad and vague terms can be used to suppress dissent and target individuals or groups perceived as threatening by those in power. Clear, narrow definitions are crucial for protecting freedom of speech and expression.
2. Issue with Sub-Sections:
– Section 103 of the BNS has two sub-sections for distinct classes of murder but imposes the same punishment for both.This lack of distinction in sentencing fails to account for the varying degrees of severity and circumstances surrounding different types of murder.
– Justice and Proportionality: Effective justice systems recognize the varying degrees of culpability and circumstances in criminal acts. Sentencing should reflect these differences to ensure proportionality and fairness.
-Legal Precision: Ambiguities in the classification and sentencing can lead to challenges in court, with defendants arguing against the fairness and appropriateness of their punishment.
3. Increased Detention Period Extension of Detention Without Charges:
The Bharatiya Nagarik Suraksha Sanhita extends the period of detention without charges from 60 to 90 days.
-Concern: This raises significant concerns about safeguarding individual rights and the potential for misuse of the law.
– Extended detention without charges can violate fundamental human rights, particularly the right to a fair trial and protection from arbitrary detention. Increasing the detention period can lead to potential misuse by authorities to hold individuals without sufficient evidence, undermining the principles of justice and due process.
– The extension necessitates robust judicial oversight to prevent abuse and ensure that detentions are justified, transparent, and subject to regular review.
4. Loopholes in the New Laws in a nutshell
(i) Police Authority and Detention: The bills grant extensive power to police officers and extend detention periods without charges from 15 to 60 or 90 days, endangering civil liberties and increasing the risk of abuse.
(ii) Ambiguity in Anti-Terror Laws: Confusion arises from overlapping anti-terror regulations, leaving significant discretion to officers without clear guidelines.
(iii) Proportionality in Sentencing: The laws fail to distinguish between different degrees of offenses, such as treating lynching and murder identically, which could lead to disproportionate sentencing.
(iv) Redundant and Overlapping Provisions: Some offenses, like corruption, are covered under multiple laws, causing redundancy and potential legal conflicts.
(v) Reintroduction of Unconstitutional Sections: Sections previously struck down by the Supreme Court, such as those related to sedition, are reintroduced, creating legal ambiguity.
(vi) Forensic Support:While the bills increase the use of forensics, there are concerns about the accessibility and capacity of forensic facilities.
5. Discretionary Power on the Executive
A critical provision grants Station House Officers (SHOs) the discretion to decide between conducting a preliminary inquiry or registering a First Information Report (FIR) for certain offenses. This transfer of decision-making power from the judiciary to the police could lead to corruption and political influence, undermining the fairness of the justice system. Prima-facie satisfaction was the sole domain of the judiciary, and now the same has been relegated to the SHO for offences between 3-7 years whether an FIR is to be registered or not. In a way this institutionalized corruption, increases political clout and it would make the bureaucracy the be-all and end-all even in situations wherein the crimes are of grave nature. I ask myself this question, what is the need for a parallel justice system? The answer is simple, it’s because the Indian Judiciary System is Independent, Impartial and is not at the beck and call of the Executive.
Pondering over this deplorable situation, I do realize that the new criminal laws have bestowed upon the police unfettered powers without any justification, and all of that appears to be completely unrestricted and unaccountable. Previously, the Judiciary, being an independent organ of the government was able to intervene and ensure that police is not able to act in an arbitrary and authoritative manner.
The overhaul of the laws has resulted in the police taking the law in its own hands and blurring the distinction between the three organs of government and depriving the judiciary of its inherent power. The police have been given discretion on whether to register an FIR or not just based upon a preliminary inquiry which can prove to be a catastrophic law for the powerless majority of country where their helpless voices against injustice can be easily crushed at the hands of the police administration at a very early stage itself.
6. Impact on Lower Courts and Magistrates.
This mindset of discretionary power and its potential misuse can filter down to lower courts and magistrates, leading to lengthy detentions without trial. Magistrates might become more inclined to detain individuals based on preliminary inquiries, resulting in prolonged periods of incarceration without proper judicial oversight.
The new criminal laws, with their discretionary powers and impact on judicial processes, pose significant risks to the integrity and efficiency of the Indian Criminal Justice System. Addressing these issues requires the appointment of special judges, establishment of fast-track courts and reforms in judicial appointments and tenure. Ensuring fairness and efficiency in law enforcement and judicial processes is crucial for maintaining the cherished freedoms of the country.
In my personal opinion, the whole idea of the revamp of the existing criminal laws and the framing of the new criminal laws, without any substantial changes was completely futile and superfluous and it has only contributed to confusions and created ‘an unnecessary additional mess for the Bar and the Bench alike’. Incorporating several amendments here and there, would have served the purpose and led to the required positive changes in our democratic society. However, instead of allocating public funds of the country towards the formulation of these new criminal laws, I strongly recommend that it would have been much better, if the same would have been directed towards the improvement of the legal infrastructure of our country in order to increase the efficiency of our judicial systems which includes better internet facility and connectivity in all the courts of the country, initiation of fast-track courts, organizing evening courts in order to adjudicate upon different categories of cases (pertaining to different Acts) exclusively and in the most effective manner to reduce the count of pending cases in court all over the country.
Rajan Bhagat, IPS (Retd.), former DCP (Crime), Delhi Police, said, “There is no break from the colonial legacy as the BNS presented as a method to distance itself from colonial inheritance. The law makes minimal progress in this objective. Macaulay’s IPC rested on the principle that punishments instil fear, deterring criminal activity, the new laws reinforce this principle. It does so by continuing to rely on long-term imprisonments and the death penalty, by adding and increasing mandatory minimum sentences for certain offences, and by retaining vague definitions for offences against the State as well as for defamation.
The BNS has incorporated a specific provision for mob lynching and stipulated punishment ranging from seven years in jail to the death penalty for those convicted of the crime. Terrorism is listed as a separate offence. Terrorist acts have been defined as acts that disturb public order; intimidate the public; or threaten the unity, integrity, and security of India. The commission of such acts, either by use of explosives or by destroying property or critical infrastructure etc. can attract a minimum imprisonment of five years, life imprisonment and even death in some cases.
The BNSS 2023 and BS 2023 introduce changes in the areas of arrest, bail, trial, forensic investigation, and mercy petitions. The law mandates forensic investigation for offences punishable with at least seven years of imprisonment. It also provides to produce electronic communication devices, likely to contain digital evidence, for investigation, inquiry, or trial. The law allows any police officer to request for a medical examination of the accused in certain cases, such as rape. Under the Code, such examination can only be done by a registered medical practitioner at the request of at least a sub-inspector-level police officer. The law provides that all trials, inquiries, and proceedings may be held in electronic mode. The law provides that first-time offenders be released on bail if they have completed detention for one-third of the maximum imprisonment that can be imposed for the offence. The law omits the provision under the Code that empowers the District Magistrate to prohibit the carrying of arms in any procession, mass drills, or mass training with arms in public places. The law provides that the decision of the President on mercy petitions of death row convicts is final and cannot be appealed against in any court.
The main criticism of these laws includes Lack of Consultation and Debate: The laws were passed hastily without sufficient deliberation or consultation with opposition parties and stakeholders. The absence of thorough parliamentary discussions raises concerns about transparency and democratic processes. Authoritarian Passage: The laws were passed in an authoritarian manner, with nearly 100 Members of Parliament suspended and 146 MPs thrown out during the process to put legislative norms bypassed. Scope and Definitions: The broad scope of offenses covered by the laws, such as acts of secession, armed rebellion, and separatist activities. The explicit definition of terrorism in the new code needs to be debated. Increased Magisterial Powers: The Indian Citizen Security Code grants magistrate’s greater authority to impose fines and declare someone a proclaimed offender. This provision has great potential for misuse of powers. Technology and Evidence: The changes in the Indian Evidence Act emphasize technology-driven evidence collection. Besides, privacy, reliability, and the impact on due process I personally feel a great burden on my colleagues and doubt their capabilities for adopting complicated process involving use of technology.
The implications of these newly enacted criminal laws on civil liberties are multifaceted and some key points include Freedom of Expression and Dissent: The broad scope of offenses, including acts related to secession and separatism, raises concerns about freedom of expression. Citizens expressing dissent or advocating for self-determination could potentially be targeted under these laws. Privacy and Surveillance: The emphasis on technology-driven evidence collection may impact privacy rights. Increased surveillance and data collection could infringe upon individuals’ right to privacy. Due Process and Fair Trials: The Indian Citizen Security Code grants magistrates greater powers, but this must be balanced with ensuring due process. Fair trials, access to legal representation, and protection against arbitrary detention are essential for safeguarding civil liberties. Freedom of Assembly and Protest: The laws’ provisions related to rebellion and subversive activities could affect the right to peaceful assembly and protest. I doubt how authorities will strike balance between maintaining public order and respecting citizens’ rights. Transparency and Accountability: The rushed passage of these laws without adequate debate undermines transparency and accountability. Civil liberties thrive in an environment where legislation needs to be thoroughly scrutinized and debated.
Oversight and review mechanisms are crucial for ensuring the proper implementation of any legislation. Effective oversight involves a collaborative effort among lawmakers, the judiciary, civil society, and citizens. While the specific provisions for these newly enacted criminal laws in India may vary and some general principles that apply are Parliamentary Oversight: The Indian Parliament plays a critical role in overseeing the implementation of laws. Parliamentary committees, such as the Standing Committee on Home Affairs, can review the functioning of these laws, assess their impact, and recommend changes if necessary. Judicial Review: Citizens and organizations can challenge the constitutionality and legality of these laws in courts. The judiciary can examine whether they adhere to fundamental rights and principles enshrined in the Indian Constitution. Civil Society and Advocacy Groups: Independent organizations, human rights groups, and legal experts monitor the implementation of laws. They can raise awareness, document cases, and advocate for necessary reforms. Transparency Reports: Regular reports from law enforcement agencies can provide insights into the application of these laws. Transparency ensures accountability and helps identify any misuse. Public Awareness and Education: Educating citizens about their rights and responsibilities under these laws is essential. Public awareness campaigns can empower individuals to seek redressal and report any violations.
Wajahat Habibullah, IAS (Retd.), former Central Information Commissioner, is one of the members of Constitutional Conduct Group, shared information with
Lawyers Update, saying that over 100 retired bureaucrats, who served in the top positions in Union and state governments, highlighting public concerns had appealed to Government of India and other concerned as per the following averments:-
Dear Madam/Sir,
Our group, the Constitutional Conduct Group, comprises former civil servants who have served in the All India and Central Services in various capacities. We have no affiliation with any political party but are strongly committed to the ideals enshrined in the Constitution of India.
On 25 December 2023, the President of India gave assent to the Bharatiya Nyaya Sanhita 2023 (BNS), the Bharatiya Nagarik SurakshaSanhita 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam, 2023(BSA). As notified by the Government of India, these new criminal laws are to take effect in a few days,
on 1, July 2024.
These three criminal laws are second only to the Constitution of India in their importance in the daily lives of common people in the country, especially the most vulnerable and marginalised sections. Yet these three new complex criminal laws, which replace the entire legal edifice of criminal justice, were rushed through parliamentary approval without having to face critical questioning by the Opposition in a public debate. As a result, a number of valid and important questions about the laws remain unanswered.
Wide concern has been expressed in great detail in public discourse over the last ten months since the drafts of these new laws were first introduced in August, 2023. However, the core issues raised have not been addressed by the Union Government. These fall into three broad areas. First, the concern is that the new laws enable governments of the day (whether at the Union or State levels) to immobilize the practice of democracy by over-broad criminalization of legitimate, non-violent dissent and opposition against the Governments, the ruling parties and the forces that back them. The second concern is that the new laws will terrorize innocent civilians and honest public servants because they put in the hands of the Government of the day unguided, arbitrary and virtually unlimited power to selectively arrest, detain, prosecute and convict practically anyone they choose, including by branding them as terrorists and as anti-national. Third, the concern is that the new laws in effect regularise extraordinary powers which should normally be available only in legitimate states of emergency as already provided in the Constitution. The effect of these laws, as currently approved, is that, once they come into effect, India will no longer be a functioning democracy.
Suffice it to say that the new laws are vulnerable to rampant political abuse, especially in today’s vitiated political atmosphere and the intolerance of Governments, both at the Centre and in the States, to dissent in any form and from any source. To ensure that the democratic ethos of our Republic is protected in letter and in spirit, we are of the view that it is incumbent on the Government of India to (i) defer the date (1July 2024) on which the three laws are to come into force and (ii) urgently call an all-party meeting to develop a national consensus on how to take these three new laws forward so as to completely remove all public concerns about the possible negative impact of these three new laws on constitutional rights and civil liberties.
We urge the highest political executive of the Government of India, the members of both Houses of Parliament and leaders of political parties to ensure that these new laws do not hollow out our constitutional rights and jeopardise our democracy.
Advocate Surajita Patnaik, a talented South Indian practitioner in Supreme Court expressed her serious concern about the nomenclature of the laws in Sanskrit language, while the entire text of the laws is in English. It’s an irony. This practice is violative of Article 348 of the Constitution. She feels that the new laws are harsher than the British colonial laws. The extraordinary powers given to police lead the society towards the police State, which is deadly against the democratic norms. The new criminal laws are like sugar-coated bitter pills.
