Criminal law expert and Senior Advocate Amit Desai told Moneycontrol that while the new criminal laws have introduced significant procedural changes to the criminal justice system, the offences are largely the same as in the old law.
“The penal code may not be as radical as one thought as the provisions themselves are largely the same. Having said that, the (Bhartiya) Nagrik Suraksha Sanahita (BNSS), which will replace the Criminal Procedure Code (CrPC), has undergone significant changes,” he said.
The government, on February 24, notified that the three new criminal laws will come into effect from July 1.These laws, the Bharatiya Nyaya (Second) Sanhita, 2023, the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, and the Bharatiya Sakshya (Second) Bill, 2023, will replace the century-and-a-half-old Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act.
Desai noted that these changes are being brought at both the justice delivery level and the institutional level, i.e., in the courts and in investigations. “The law has recognised the need for technology in the courts and in investigation. Technology is now a part of the statute, therefore, it's a good thing,” Desai explained. The senior counsel noted that things like virtual hearings, which are prevalent since the pandemic, have been woven into the law, so the courts will have to necessarily provide them.
Noting that the law mandates digitisation of documents, charge sheets, etc., Desai said, “It is a positive and necessary move as it recognises that technology is part of the process, and will probably help speed up some of the processes, besides having other benefits. For instance, virtual hearings will reduce crowding in courtrooms,” he added.
Why penal offences remain the same
“Across the world, most laws are based on some fundamental principles of jurisprudence. Most criminal laws, like the IPC, are based on some fundamental principles on how society should be governed,” Desai said.
The Senior Advocate noted that offences such as murder and rape are punishable in most parts of the world, and such offences comprise a chunk of the IPC.
“It's not as if murder is not an offence in other parts of the world. It's an offence virtually everywhere. I don’t think the IPC was a colonial legislation, except to the extent that it was legislated during British rule,” he said.
However, Desai noted that there are a few provisions in the current penal code which may have been relevant to the government in power when the law was brought in. “But those are only a handful of provisions here and there,” he added.
July 1 is an ambitious target
Desai thinks it will be an uphill task for the government to provide uniform infrastructure to the lakhs of courts across India by July 1 in order to implement the law. “The question is, how quickly can you ramp up the infrastructure and ensure that everybody has the same quality of infrastructure across the length and breadth of India,” he asked.
According to Desai, upgradation of infrastructure in the criminal courts is important for the justice delivery system, in order ensure that everybody in the country gets the same level of justice. “At present, the trial courts in Delhi have some excellent infrastructure, but most of the other courts of the country don't have that kind of equipment,'' he explained.
According to Desai, the effects of the new laws on the criminal justice system and in investigations may take five to seven years to fully pan out. The Senior Counsel noted that both the state and the central governments would have to work together to provide the infrastructure in the trial courts for the new laws to be effectively implemented.
Desai is among the country’s leading criminal lawyers, and has appeared in many high profile cases across many courts. He represented Bollywood actor Salman Khan in the hit-and-run case and obtained bail for him in 2015 from the Bombay High Court. Desai represented Shahrukh Khan’s son Aryan Khan in 2021, and also obtained bail for Chanda Kochhar earlier this year in a case linked to alleged irregularities in loans granted to Videocon during her tenure as CEO of ICICI Bank.
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