New criminal law bills will bid adieu to the colonial mindset: Sr Adv Sanjay Jain

Sanjay Jain- Senior Advocate

Speaking of the proposed new criminal laws, senior advocate and two-time additional solicitor general (ASG) Sanjay Jain noted that the move represents the government’s intent to say ‘good bye’ to the colonial mind-set.

“The criminal law bills represent an intent to say goodbye to the colonial mindset and improve our justice dispensation system, taking full benefit of advancements in technology and forensic sciences to keep up with new trends in crime,” he said.

On August 11, home minister Amit Shah introduced in parliament the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya bills as proposed replacements for the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. Shah noted that these laws are aimed at drastically reducing delays and pendency in the criminal justice system. The bills are expected to be debated in the winter session of parliament.

Jain spoke to Moneycontrol on the key legislations brought in by the government over the last nine years. He was the ASG for the union government at Delhi High Court (HC) between 2014 to 2018, and at the Supreme Court (SC) from 2019 to 2023.

Jain said: “The current criminal laws were introduced in the 19th century, immediately after the Britishers had survived the mutiny of 1857. The objective of bringing in these laws 1860 onwards was to develop a system for controlling law and order in the British colony.” He added that the current criminal laws were designed by Britishers to take advantage of grey areas (in the laws) and somehow subjugate Indians. According to Jain, the reforms to the criminal laws reflect current social norms, including issues of gender equality, LGBTQ+ rights, and other societal changes.

Laws that ushered in Ease of Doing Business (EoDB)

Jain noted that laws such as the Goods and Service Tax (GST), the Insolvency and Bankruptcy Code (IBC), the Real Estate Regulation and Development Act (RERA), among others have helped enhance EoDB in the country.

Elaborating further, he said, “GST has been crucial in creating a unified market, eliminating cascading taxes, and making tax compliance more straightforward. IBC provides a consolidated framework for the timely resolution of insolvency cases, boosting investor confidence, and RERA has brought transparency and accountability to the real estate sector.”

The senior advocate explained that these measures had a significant impact on improving the EoDB in India, though their effectiveness varies across sectors and regions.

Path-breaking Jan Vishwas bill

Jain said the Jan Vishwas bill, which was passed in the monsoon session of parliament, is a path-breaking legislative initiative aimed at reducing the compliance burden, decriminalising minor offences, and promoting ease of doing business.

The law aims to decriminalise 183 minor offenses under 42 central laws relating to 19 central ministries. The law got presidential assent in August 2023, shortly after the monsoon session of parliament. “It reflects the intent of the political establishment to simplify regulations and foster a more business-friendly environment,” he added.

The senior advocate suggested further simplification of the tax regime, further digitisation of government services, and creating channels for regular feedback from the business community to reduce the compliance burden.

Success of mediation law depends on litigants

About the Mediation Act, which was passed by parliament in the 2023 monsoon session, Jain said “the law represents a significant step in promoting alternative dispute resolution mechanisms.”

Jain added that the law widens the scope of mediation and includes both domestic and international mediation. “The commercial world is likely to experiment with it with greater enthusiasm, particularly before initiating litigation.”

The senior advocate said, “the success of mediation law in reducing the burden of the court will be tested on the willingness of litigants to make genuine attempts to settle disputes before filing litigation, rather than going through the ritual only to complete the formality, as has been the trend till now.”