Burying the Three Colonial-era Criminal Laws: Challenging Journey Begins on 1st July 2024

Criminal Laws Needed an Overhaul, But Let's Tread with Care: Article 20(1) as a Constitutional Check on Sweeping Changes in India's Legal Framework. Be Ready to Face Air-pockets and Speed-breakers.

The Three New Criminal Laws: The Journey Begins on 1st July 2024

As India treads cautiously into a new era of its legal history, the Modi 3.0 Government has decisively set 1st July 2024 as the commencement date for the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya (BS) Acts, 2023. Despite appeals from various quarters to delay the implementation, the government remains resolute, viewing these reforms not just as an update to an antiquated criminal justice system, but as a significant move to eliminate the final vestiges of colonial influence, particularly symbolised by the introduction of Hindi nomenclature.

Reflecting on this monumental change, I reshare an updated version the article from August 2023, which foresaw the substantial challenges that police officers, advocates, and judges—from lower courts to the Supreme Court of India—will face during this transition. This new legal framework will necessitate a paradigm shift, compelling established experts to adapt to an entirely new legal lexicon.

Anticipated Challenges for the Various Stakeholders

The implementation of the three new criminal laws with effect from 1st July 2024, is expected to bring about several major challenges for the various stakeholders.

Challenges for Police

• Training and Application: Over 5.65 lakh police officers have been trained on the new laws, but absorbing and applying these changes on the ground may prove difficult initially.

• Digital Competency: Police will need to be equipped with appropriate gadgets and trained to generate, secure, and store required digital outputs like crime scene videos in an admissible form, a capability currently lacking in most states.

• Extended Custody Periods: The increased period of police custody from 15 to 60-90 days could lead to a higher risk of custodial maltreatment, if not torture.

Challenges for Prosecution

• Adaptation: Prosecutors will need to quickly adapt to arguing cases under the new provisions and terminologies of the revised criminal laws.

• Lack of Precedents: The absence of judicial precedents and case laws under the new statutes will make the framing of charges and prosecution arguments challenging initially.

Challenges for Advocates

• Study and Interpretation: Defense advocates will need to study and interpret the new provisions carefully to build effective defense strategies for the accused.

• Bail Difficulties: With the expanded scope of police custody and ambiguous provisions, securing bail for clients may become more difficult.

Challenges for Judiciary

• Parallel Justice Systems: Two parallel justice systems may operate for old and new cases, causing confusion and inconsistencies in judgments.

• Varying Interpretations: Lack of judicial precedents will lead to varying interpretations by different judges until these are settled by higher courts.

• Increased Litigation: There will likely be increased litigation challenging the new provisions on constitutional grounds, adding to the already high backlog of cases.

Challenges for Citizens

• Civil Liberties: Expanded definitions of crimes like terrorism, mob lynching, etc., and stringent punishments may jeopardize civil liberties.

• Awareness: Ordinary citizens may unknowingly fall foul of the new provisions until awareness increases.

• Undertrial Detention: Undertrials may languish longer in jails with the increased police/judicial custody periods.

Summing Up

While the new criminal laws aim to modernize the justice system, their effective implementation will require massive capacity building in the short term and face significant legal challenges in the long term. Concerns remain that some provisions may negatively impact fundamental rights. A smooth rollout from 1st July 2024 will be difficult given the scale of changes involved.

A Bold Step into Legal Modernity

In the annals of India's legislative evolution, a groundbreaking transition is taking shape. Bharatiya Nyaya Sanhita (BNS) [भारतीय न्याय संहिता] Bill, 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) [भारतीय नागरिक सुरक्षा संहिता] Bill, 2023, and Bharatiya Sakshya (BS) [भारतीय साक्ष्य] Bill, 2023, emerge not merely as trailblazing legislative endeavours but also as powerful affirmations of India's linguistic heritage and cultural identity, marking a decisive break from colonial vestiges. Yet, when Home Minister Mr. Amit Shah presented these Bills in the Lok Sabha on the final day of the Monsoon Session, it was clear that reforms of this breadth would inevitably face a plethora of challenges. The specific objections highlighted by the Tamil Nadu Chief Minister, which predominantly focused on the Hindi-centric titles rather than the essence of the legislative content, accentuate the nuanced equilibrium India, in its vast tapestry of diversity, must navigate in its pursuit of forward-thinking governance and unified nation-building.

More Stringent Provisions?

The former Congress Party stalwart and Senior Advocate, now serving as a Rajya Sabha MP, Mr. Kapil Sibal, was swift in raising objections to certain provisions within the Bills. This indicates that the ensuing public discourse in the forthcoming weeks might be characterized more by fiery debates than enlightening deliberations. The crux of these debates is likely to revolve around the enhanced powers perceived to be granted to the police and investigative agencies, which may pave the way for unwarranted and indiscriminate arrests. Such powers run the risk of misuse or abuse based on political considerations and extraneous factors. Furthermore, the pressing issues of basic human rights, the imperative for speedy trials, and the need for clear and straightforward bail provisions, pending investigation and trial, will undoubtedly be central to the discourse.

Article 20(1): A Constitutional Check on Transformative Changes in India's Criminal Laws

The forthcoming replacement of time-worn legal pillars, such as the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 (which was not too different from the The Code of Criminal Procedure, 1898), and the Indian Evidence Act, 1872, underlines India's aim to update its legal infrastructure and statutory framework. However, in this fervour for modernity, there lie intrinsic complexities of transition. The cornerstone of this intricate puzzle is Article 20(1) of the Constitution of India, which unequivocally states:

"No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

The Dual Criminal Administration System: A Looming Challenge

This constitutional safeguard ensures that offences committed before the notification of the new laws are adjudicated under the pre-existing or the then extant legal codes. On the other hand, the new legal stipulations, replete with their updated definitions and nuances, will be pertinent solely to offences post their formal enactment. This scenario throws open the doors to a quandary: Which set of procedural laws will preside over offences, especially those that sit astride the cusp of old and new legislations?

The unfolding tapestry paints a picture of a potential "dual criminal administration system". A foreseeable situation where, for an extended period, the nation might operate under two parallel legal systems. One governed by the older statutes for crimes committed before the new codes and another, charting the course for offences under the new laws.

The Road Ahead: Treading with Caution and Precision

Although the repealing clause in the fresh legislation might aim to clearly demarcate the territories of old and new legal codes, and may even address the handling of ongoing cases, its hands are tied when it comes to contravening the inviolable tenets of Article 20(1). This backdrop necessitates drafting with meticulous attention, especially in relation to repealing clauses, transitional stipulations, and the modus operandi for pending litigations¹.

Navigating Nuance in Legal Reformation

While the adage "The King is dead. Long live the King!" elegantly signifies the continuity of monarchies, the realm of law, especially during pivotal transitions, necessitates more than mere succession—it demands meticulous deliberation and forward-thinking. The Joint Parliamentary Committees bear the weighty responsibility of prioritising extensive consultations over hasty decisions.

The ramifications of criminal law administration touch the lives of all citizens. Therefore, the deliberative process must involve an eclectic mix of stakeholders: bar councils and associations, NGOs and human rights organizations, both active and retired police officers and civil servants, the Law Commission, and notably, the State Governments. It's crucial to remember that "law and order" predominantly falls under the jurisdiction of individual states as per the Indian Constitution. The feasibility of either formal or informal consultations with the Supreme Court should also be thoughtfully assessed.

Beyond the Courtroom: Rethinking Corrections and Clemency

Additionally, a reform of such magnitude should holistically consider the entire criminal justice system, encompassing jail administration and related procedures. Matters like remissions, reprieves, premature releases, pardons, furloughs, and the like, which predominantly reside within the purview of the states, must be addressed comprehensively to ensure uniformity and justice in application.

Charting the Path Forward for India's Legal Landscape

In summation, India's pursuit of a rejuvenated legal system is a bold and necessary stride, meriting applause. Such transformative endeavours, however, demand more than just fervour or parliamentary majority; they necessitate an intricate tapestry woven from caution, comprehensive stakeholder engagement, and an unwavering commitment to the bedrock principles enshrined in our Constitution.

We stand firmly in support of the Modi Government's initiative, while also emphasising the indispensability of incorporating bona fide recommendations from diverse quarters. It is worth noting that as the world's largest democracy, India remains under the global lens. Our legislative decisions, particularly those pertaining to criminal justice and human rights, will not only influence our domestic socio-legal fabric but also set precedents on the world stage.

Furthermore, while our focus has primarily been on the criminal legal landscape, it's imperative to acknowledge the plight of the Civil Procedure Code. Equally deserving of attention and reform, the existing framework for civil litigations has, unfortunately, seen cases drag on, sometimes outlasting generations. This not only belies the principle of 'justice delayed is justice denied' but also underscores the pressing need to contemporize the civil adjudicatory process.

Navigating the Future of India's Legal Landscape

To truly realise a legal system that harmoniously amalgamates India's rich traditions with the imperatives of modern-day governance, a collaborative, transparent, and progressive approach is the way forward. As we embark on this journey of legal metamorphosis, let's be cognizant of our responsibility, not just to our citizenry but to democracies worldwide, setting a precedent that is both inspiring and impeccable.

Embracing Technology for Legal Transformation

Given the recent advancements in the realm of Artificial Intelligence, these new laws present an opportunity for tech-savvy lawyers to create AI-enabled software or apps that can map new sections to their analogous counterparts in the old laws. However, this is not a simple programming exercise. The new provisions may contain subtler nuances and changes that must be carefully considered while interpreting the new laws.

As the famous Chinese curse goes, "May you live in interesting times." Indeed, we are living in such times, and the path forward requires both innovation and diligence to ensure a smooth and effective transition to these modernised legal frameworks.

Happy Birthday to the three triplets in advance!

1. The similar repealing section of the Code of Criminal Procedure, 1973 is reproduced below for the facility of ready reference. A bare perusal will reveal that this is not a simple provision.

484. Repeal and savings.—(1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed.

(2) Notwithstanding such repeal—

(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force: Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;

(b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code;

(c) any sanction accorded or consent given under the Old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction of consent;

(d) the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of article 363 of the Constitution.

(3) Where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding to be commenced under this Code by reason only of the fact that a longer period therefor is prescribed by this Code or provisions are made in this Code for the extension of time.