The government’s decision to implement the three new criminal laws from July 1 onwards has been met with skepticism as experts believe they not only violate the fundamental rights to one’s liberty and free speech but will incite “utter chaos”.
The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) – which were passed during the Parliament’s Winter Session in December 2023, replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence (IE) Act respectively.
Speaking at a February 26 event held in the national capital, Mohan Gopal, the former Director of the National Judicial Academy, said the new laws have nothing to do with “crime and punishment” but rather “stifle free speech” and “dissent of any kind”.
However, even as public prosecutors welcomed the new laws, other experts believe the introduction of the new laws was a wasted exercise considering the old laws have simply been “re-jigged” and “rehashed”. The IPC, CrPC, and the IE Act have been the cornerstone of Indian criminal jurisprudence. The complete overhaul of the laws by shedding colonial baggage has been a key poll agenda for the ruling Bharatiya Janata Party (BJP).
The ruling government has been slammed for how the entire process has been undertaken. Home Minister Amit Shah introduced the three bills on August 11, 2023 – the last day of the Parliament’s Monsoon Session and barely three years after constituting the committee tasked with the overhaul. Even the passage of the three bills sans parliamentary debate was criticised as 143 opposition leaders stood suspended during the winter session in December 2023.
Why is the introduction of the three criminal reform laws different from any other new law? And what impact will it have on the people, the judicial system? BOOM spoke to experts who shed light on the issues above.
Unlearning of century-old laws, relearning of a new criminal jurisprudence
Advocate Soutik Banerjee has highlighted an immediate issue that needs to be considered in light of the countdown to July 1.
“For the moment, the implementation of the three criminal reform laws is not a legal issue, it is more of a logistical issue,” Banerjee told BOOM.
“It is not just us lawyers, but all stakeholders of the criminal justice system that will need to be trained. The police, the lawyers the judges. There is a whole unlearning and re-learning that needs to be done, he added.
Allahabad High Court former Chief Justice Govind Mathur said the new laws will have to be looked at afresh. “Courts are open to interpret them, but it is the police, the investigating agency, and the prosecution that will have the immediate responsibility to see how to invoke the new laws,” Justice Mathur said.
“The police will need to be trained before the new laws are put in motion. The police and the investigating agencies will have to understand the intention of the lawmakers and lodge cases accordingly,” he added.
“Courts can always hear the case by hearing the two sides and take their time to interpret. But (probe) agencies ko tayyari karni padegi (probe agencies will have to prepare themselves),” the ex-judge said.
Take the IPC for example, Banerjee said. The IPC sections are “ingrained” in the vocabulary of the criminal justice system, he added. “When one says 420, or 302 we instantly know that one is talking about cheating or murder,” the advocate said. “Implementation of this law is different from say other new criminal laws because here you are changing the entire foundation of criminal jurisprudence,” Banerjee explained.
“A complete reallocation of sections will only create more confusion for the bar and bench. Even a thana (station) police knows these provisions by heart and they work on it. Now it will make them go for another refresher section on the comparative analysis of the new enactments,” ex-Madras High Court judge K Chandru said told BOOM.
Senior advocate Vrinda Grover said it takes a minimum of five to six years for the police to understand new legislation. Grover's point was similar to Banerjee and Chandru's when she said that the IPC and popular sections like 420 (cheating) and 302 (murder) had become part of a culture and one's vocabulary.
Senior advocate Aman Lekhi said the symbolism that was associated with the IPC, CrPC, and Indian Evidence Act has been disrupted. There will have to be a re-culturisation and re-familiarisation of the new laws. Till then the new reform laws will be alien to the people and meanwhile, the citizenry will be cast adrift, he added.
Laws aimed to scuttle democracy, cause utter chaos
Advocate Sarim Naved said he suspected that the implementation of the BNS, BNSS, and BSA post-elections was aimed at “scuttling the system as it is”. If the government's intention was pure, then why not bring in the new laws before the elections? Naved asked.
There is going to be such chaos when the laws are going to be notified, Naved said while speaking at a February 26 event held in the national capital.
Putting things in context, Naved said, “On July 1, if these laws come into operation, we will all be standing in court and the judge will be looking at me, I will be looking at the judge and he will ask what has changed. Let’s all look at the law, everyone will be confused and the judge will just put it up for September or October saying then we will discuss”.
“And this is just one court where this will be happening. The other courts will have their interpretation, and the high courts will have its interpretation. Then it will come to the Supreme Court. We could be looking at the next three to four years of utter chaos,” Naved added.
“The concern is that these laws are the bedrock of the criminal justice system. All criminal matters are governed mainly by these three statutes. So that would entail changing everything – from court systems, and databases and learning new laws etc,” Advocate Rajat Kumar said.
“The concern is also in the form of apprehensions and confusion around new laws. It might entail delays in cases as judges, police, lawyers and parties navigate the new landscape. More than that there are new offenses, some changes in procedure which also bring apprehensions about excesses that police might exercise,” Kumar added.
Ex-Supreme Court judge Madan Lokur said apart from chaos, the new criminal laws will result in increased litigation and there may be different courts that may have their interpretation of the law which will bog the top court in appeals.
“The CrPC was enacted as recently as 1973. What was the need for its sudden change?” Justice Chandru asked. “Millions of copies of the various forms made under it will have to be discarded now by courts and law enforcement agencies,” he said.
New laws a rehash of the old laws
Many experts believe the new Bharatiya Nyaya Sanhita is nothing but a “rehash” of the Indian Penal Code. 80-85% of the IPC has been retained. In the new law, the sections have simply been re-jigged.
“Besides the Hindi names given to the three legislations, the contents of the three acts are only a rehash of the old laws and the new sections that have been added are more draconian than the old ones,” Justice Chandru said. “The claim made by the Central government that they are shedding the colonial legislations are a farce,” he added.
The ex-judge said the renumbering of the old sections that have been retained is akin to “shuffling them as a pack of cards”. “Even if you call it any other section number for cheating (section 420 in the IPC) it will still be called ‘char sow bees’ only,” he added.
“Why are the new laws termed as an ‘overhaul’ when it is anything but?” Professor Anup Surendranath asked. “80-85% of the laws are the same, they have just been re-arranged and the 15% that's changed is problematic, he added while speaking at a talk where the three new laws were being decoded.
Advocate Soutik Banerjee referred to the Juvenile Justice (JJ) Act, 2000 to explain a point. “In 2015, though the entire JJ Act had been replaced, despite significant additions, the core sections had remained untouched. It didn’t undergo a complete re-jig like the IPC where even the traditional sections have been renumbered,” Banerjee said. “And this was just a 15-year-old-law, unlike the criminal code. Here, the decoding of the IPC will be complete chaos,” he added.
“There is no doubt that the IPC needed an overhaul, but the government could do it by bringing in amendments and addendums,” Banerjee said.
However, senior public prosecutor Atul Shrivastava “welcomed the new criminal reform laws because of its focus on justice”.
“In its current avatar, the criminal law is called the Indian Penal Code – the name itself focuses on penal provisions. There was a negative mindset that the person who may have committed a crime has to be punished. Now, in the new law is called Bharatiya Nyaya Sanhita – Nyaya means justice. The new law has provisions where the chances of a person getting falsely implicated are close to zero,” Shrivastava told BOOM.
“85% of the text is the same, so the new law in that sense is not obsolete,” he added.
The new law is the new of the hour, he said adding, that when Thomas McCauley (he drafted the IPC) came out with the IPC, it was with the intent to run our country and subjugate its people.
“Now the need has changed, so the laws must change,” Shrivastava said.