Legal experts have noted that the old criminal laws will continue to apply for now as the government has not issued a gazette notification bringing them into force.
“While the president has granted assent to the three new criminal laws, they haven't officially come into effect yet by a notification. Therefore, the existing colonial-era laws still apply, and any new cases registered will be governed by them,” said Supreme Court lawyer Sandeep Bajaj.
President Droupadi Murmu gave assent on December 25 to the three new criminal justice bills, which were cleared by Parliament on December 21. 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.
However, the government has not published a gazette notification as mandated by these three laws, as a result of which these laws have not been operationalised. “Section 1 of all the new laws mentions that the provisions of the new laws will come into force once the central government notifies the date in the official Gazette. There can be different enforcement dates for different provisions. So, till the time the enforcement date is notified by the central government in the official gazette, the old laws will continue to be applied,” said Tushar Agarwal, a lawyer at the Supreme Court.
According to Section 1(2) of the Bharatiya Nyaya Sanahita, “It (the law) shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Sanhita.”
Thus, the sections of the new law have to be notified in the official gazette for them to become operational. As per Section 1(2), the government can choose to notify the entire law or specific sections of its choice. Thus, the government can either notify the entire law or do it in steps, depending on the circumstances.
Current criminal laws to be repealed when new laws are notified
The current criminal laws will automatically stand repealed when the new criminal laws are notified by the government, experts noted.
Criminal law expert and lawyer Sharath Chandran noted that the new criminal laws will kick in only upon being notified as required under Section 1. Until then, the repeal of the existing laws does not take effect. He said, “Section 358 of the Bharatiya Nyaya (Second) Sanhita says, ‘The Indian Penal Code is hereby repealed. This provision takes effect only upon the Sanhita being notified under Section 1.”
Pratik Bakshi, counsel at BTG Advaya, noted that the government will still have to take a number of steps before it can notify the new laws. These include releasing a new format of First Information Reports (FIRs) and training police personnel as per the laws. He said, “A parallel can be drawn to the new labour codes, which received the President's assent back in September 2020 but are yet to come into effect.”
Can government be forced to notify laws?
While parliament can question the government for not notifying the laws despite receiving presidential assent, the government cannot be forced by an order of the court to notify the laws. It is assumed that the central government will notify the laws at an appropriate time, as they are also responsible for operationalising them.
The Supreme Court, in 1980, had to decide on an issue whereby an act of the government was not notified for two and a half years despite receiving presidential assent. A five-judge bench of the court noted that it cannot issue a mandamus to the central government asking it to bring provisions of the law into force as parliament has trusted the central government to give effect to them at an appropriate stage. According to the judgment, “The Parliament having left this question to the unfettered judgment of the Central Government, it is not for the court to compel the government to do that which, according to the mandate of Parliament, lies in its discretion to do when it considers it opportune to do it.” Furthermore, the court noted that the executive is responsible to the Parliament, and it is answerable to the parliament for delays in giving effect to laws.
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