India’s justice system is now operating under two separate sets of laws, categorizing cases registered before and after July 2024 differently. This change has raised significant concerns among constitutional experts and lawyers, who predict major confusion and delays in the judicial process.
Home Minister Amit Shah stated that the primary aim of the new laws is to “free people from colonial mindsets.” However, according to The Wire, out of the 511 provisions in the original Indian Penal Code (IPC), only 24 have been removed and 23 new sections introduced. Furthermore, about 95% of the Code of Criminal Procedure (CrPC) has been retained in the new Bharatiya Nagarik Suraksha Sanhita (BNSS). Experts are questioning the need for a complete overhaul given that most provisions remain unchanged, raising concerns about the efficacy and necessity of the reform.
The new legislation, passed in December 2023, was approved swiftly amid the suspension of 144 opposition members. The legislation was enacted within minutes without comprehensive debate, leaving dissenting voices unheard and raising questions about the legitimacy of the law’s foundation.
Additionally, several issues were highlighted by experts, among which the key issues were:
Sedition replaced with more stringent law: Despite claims of abolishing the age-old sedition law, the government has introduced a more stringent provision under Section 152 of the new Bharat Nyaya Sanhita (BNS), dealing with “acts endangering the sovereignty, unity, and integrity of India.” Senior Advocate at the Supreme Court, Indira Jaising warned that this could elevate ordinary riots to the level of attacks on national integrity.
“While the earlier law made no reference to the sovereignty and integrity of India, the new law introduces this as an offense for the first time in the revised IPC,” Jaising said in an interview with Karan Thapar. “By using the term ‘sovereignty and integrity of India,’ they have effectively introduced the offense of being anti-national into the law. Now, anything that goes against official liking could be seen as against the sovereignty of India. This is a serious matter with a direct impact on freedom of speech and expression, and it significantly affects the right to dissent.”
Registering FIR no longer mandatory for the police: Section 173 (3) of the BNSS makes the registration of an FIR discretionary for offenses with punishments ranging from 3 to 7 years, raising concerns among experts that this will disproportionately impact marginalized sections of society.
Before 2014, police officers were not legally obligated to register an FIR, leading to widespread corruption. The landmark Supreme Court case Lalita Kumari vs. State of UP mandated that police must file an FIR for serious crimes, except in rare cases of bad faith or business competition. However, the new law, effective July 1, reinstates police discretion for certain offenses, allowing station house officers to decide whether to file an FIR.
Indira Jaising explained the importance of FIRs in the legal system. “The word ‘first’ is crucial because the law recognizes spontaneous statements as the truth,” she said, adding, delays can lead to manipulation by police, friends, or relatives. She believes that without mandatory FIR registration, police could take bribes and act as mediators, repeating past issues.
Delays in justice: Indira Jaising has raised concerns about potential delays in the criminal justice system starting July 1, citing the dual system created by new procedural laws alongside existing substantive laws. This change could complicate legal proceedings and create uncertainty over individual rights.
Jaising explained that while substantive laws generally cannot apply to past events, procedural laws can, unless they harm the accused. This distinction might lead to numerous cases arguing harm, increasing delays as the Supreme Court decides on applicable law, thus burdening the already overwhelmed judiciary.
“No assessment has been conducted on the impact of the three new criminal laws on delays or improvements to the justice system,” Jaising noted. She clarified that FIRs filed before July 1, 2024, will follow the old substantive law, while those filed after will be subject to the new substantive law. Disputes over procedural law are expected, with defendants potentially arguing that the new law is prejudicial.
Jaising highlighted that current substantive laws, despite being over a century old, have extensive judicial interpretation, providing legal certainty. Achieving similar certainty with the new laws could take another 50 years.
Arbitrary detention and abuse of power: Legal experts are alarmed by Section 187 (3) of the BNSS, which allows police to request custody of an accused for up to 15 days at any time during a 60 to 90 day period, even if the accused qualifies for bail. They argue this could lead to longer detentions and potential abuse of power.
Previously, if police failed to complete their investigation within 60 or 90 days, the accused had the right to default bail, with police custody limited to 15 days. Supreme Court rulings have been unclear about whether this 15-day custody must be consecutive within the first 15 days or spread out over the 60 or 90 days.
Despite these changes, Section 167 (2) of the CrPC still limits police custody to 15 days. However, the new rule in Section 187 (3) of the BNSS might undermine this safeguard, potentially burdening the judiciary and complicating the justice process.
Critics fear the new provision could be misused, leading to arbitrary detention and increased abuse of power by the police.
Digitization and technology myth: Despite the law’s ambitious goal of achieving 100% digitalization, experts assert that this remains a distant objective. The Home Minister has emphasized a focus on forensic science, mandating that only forensic teams visit crime scenes. However, experts cautioned that promoting forensic science as a panacea for crime-solving may be misleading. Many forensic practices, such as handwriting analysis and fingerprinting, have been questioned globally for their scientific validity, often leaving room for subjective interpretation and potential manipulation.
Furthermore, the BNSS introduces stricter conditions for obtaining bail, which could undermine the benefits of forensic evidence by increasing reliance on confessions obtained under pressure during detention.
(With inputs from The Wire)