Three new criminal laws will take effect on July 1. Legal experts say lawyers and litigants will likely face challenges as they navigate new rules and regulations, predicting an extended period of adjustment as the legal community adapts to the new framework.
“New laws mean new procedures, interpretations, and potential loopholes; lawyers will need to get familiar with the new statutes, whereas litigants might struggle to understand their rights and obligations,” said Sandeep Bajaj, a Supreme Court advocate.
Implementing the new laws will require additional training for law enforcement and administrative personnel, exacerbating the strain on an already overburdened system, according to Bajaj.
However, the new laws have been criticised for expanding police powers and reducing civil liberties. For example, under the Bharatiya Nagarik Suraksha (Second) Sanhita, police can seek custody of the accused in 15-day increments for as long as 90 days. In contrast, under Criminal Procedure Code (CrPC), a person's custody can only be extended beyond 15 days by a magistrate only if it is judicial custody, not police custody. As a result of this, the police maybe able to seek custody of someone who is in judicial custody.
Similarly, the new laws have also been criticised of being brought on par with harsh criminal legislation such as the Unlawful Activities Prevention Act (UAPA)1967. A section of civil society has also criticised the law for re-introducing sedition under a different name.
New criminal laws:
The three new criminal laws were approved by Parliament during the winter session and received the president’s assent on December 25. The Bharatiya Nyaya (Second) Sanhita, 2023; Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and Bharatiya Sakshya (Second) Bill, 2023, will replace the Indian Penal Code (1860), the Criminal Procedure Code, and the Indian Evidence Act.
“It will take many years to effectively implement the three laws as replacing decades-old laws with new ones is a revolutionary step. It requires collective efforts of all the stakeholders of the criminal justice system of India,” Lawyer Tushar Agarwal said.
The new penal code retains most of the offences but introduces stricter punishment for crimes against women and children. For instance, deceiving a woman under a false promise of marriage is now an offence, while it was a grey area in the old penal code. The new penal code also has provisions aimed at reformation over punishment as it contemplates punishments like community service. The procedural law has also undergone some changes, such as the necessity to conduct a preliminary enquiry before registering a first information report. The procedural laws also allow the digitisation of criminal trials, reducing reliance on papers. Bharatiya Sakshya Adhiniyam (BSA), which will replace the Evidence Act, encourages the modernisation of the procedures for giving evidence in courts.
The government claims the new criminal laws will rid the criminal justice system in India of colonial influence. Speaking at an event in 2023, Home Minister Amit Shah noted that these laws aim to reduce delays in the criminal justice system.
“The old criminal laws were made to protect the colonialists; the new laws have been made to protect the rights of the citizens of India,” Shah said.
In February, the central government announced three new laws will come into force on July 1. However, many bar associations have threatened to go on strike if the laws are implemented on July 1. Earlier this week, the Bar Council of India (BCI) urged the bar associations not to strike and promised to engage with the government to address their concerns.
Is this the right time to implement the laws?
Aslam Ahmed, a partner at law firm Singhania and Co, noted that the timing of the implementation of the new criminal laws is a topic that is hotly debated in the legal fraternity.
“Some lawyers argue that current societal demands and pressing issues make it imperative to address gaps and deficiencies in the existing legal framework. They believe timely reforms can enhance justice, improve public safety, and reflect contemporary values. However, others caution that the legal system is already burdened with backlogs and ongoing reforms, suggesting that introducing new laws could further complicate and strain resources,” Ahmed said.
There is also a line of thought centred around whether or not the laws were sufficiently debated in Parliament before being passed, according to Ahmed. He noted that the timing and readiness of the legal system also remain a cause for concern among legal professionals.
Niharika Karanjawala-Misra, Principal Associate at law firm Karanjawala and Co., noted that the new laws still have significant lacunae. “One of the primary difficulties to my mind is the few lacunae that the new laws appear to leave in the criminal justice system- for example, the complete removal of section 377 removes the protection from sexual assault for men above the age of 18, as well as for transgender or intersex people. As the provisions dealing with rape are gender specific, stating that only a male can commit sexual assault and only a female can be sexually assaulted, the complete removal of section 377 leaves a section of people unprotected,” she said.
Karanjawala-Misra noted that such lacuna must have been addressed by training and workshops before being implemented, however no such thing has been done as yet.
However, Abhishek Swaroop, a partner at law firm Saraf and Partners, noted that the new criminal laws result from recommendations from many committees over the years. “These new criminal legislation have been brought about at an opportune time, reflecting a deliberate legislative process that includes extensive review, societal consensus, and legal scrutiny, leading to more effective and lasting reforms. These laws prioritise rehabilitation over punishment, establish clear timelines for legal proceedings, and integrate technology and forensic science, making them pertinent for contemporary society,” he said.
Adequate training and awareness camps required:
Indian laws often face initial challenges, as seen with the Insolvency and Bankruptcy Code (IBC) introduced in 2016, which is still considered an evolving law. Any new law must face judicial scrutiny and constitutional challenges before becoming fully effective.
However, since criminal laws involve many stakeholders, lawyers urged the government to organise adequate training and awareness camps.
“While any legal reform brings some inevitable teething problems, however, the collaborative effort to educate the public at large, law enforcement, judges, lawyers, etc., through seminars and webinars, is commendable. This proactive approach will minimise disruption and ensure successful implementation of the new laws in a faster manner,” said Rishi Seghal, Advocate on Record, Supreme Court of India.
Swaroop said that enacting and introducing new laws is a gradual process that involves the Judiciary and legal professionals working at the grassroots to inform and educate the public. “A comprehensive strategy, including legal awareness camps, is essential to engage community support,” he said
Karanjawala said “Due to the workload they face, as well as the expense, police officers can often not be spared for additional training; in light of this, steps will have to be taken to ensure that there is no confusion in the application of the new laws.”
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