As new criminal laws come into effect, here’s what different legal luminaries think of their impact on legal system

July 1, 2024

As the three new criminal laws come into effect today, several legal experts say there are big challenges ahead for law-enforcing agencies, judicial officers, and legal professionals.

It is said that these laws will affect a large number of citizens at some point in time or the other in their lives. The passing of the three criminal law bills in Parliament last year sparked a series of debates regarding the need to take such steps towards evolution in the field of law with the introduction of new criminal laws.

In an interview with ANI, former Union Law Minister Ashwini Kumar and Congress leader said, “The way the government rushed to bring these laws in Parliament and the way it implemented rushed to, is not desirable in a democracy. These laws were neither adequately discussed in the Parliament committee nor extensively discussed in the House, even no consultation held with the stakeholders.”

“Now, the opposition parties demanding a change in the legal architecture of criminal laws should be preceded by meaningful deliberations between all the stakeholders that appears not to have been done. It is the only grievance of the opposition parties that should be addressed by the ruling party, said Senior Advocate Ashwini Kumar.”

Advocate Sumit Gehlot from Fidelegal Advocates and Solicitor also interacted with ANI on this issue and said,
“In the New Criminal Laws, law enforcement agencies have been given unfettered powers without checks and balances and safeguards and safety provisions have been ignored, which will be prone to misuse. Under the New Criminal Laws, there will be potential violations of civil liberties.”

He further asserted,

“Like Sedition Law under Section 150 of BNS, the offence has been made Draconian. Section 150 will surely be challenged, as will other provisions, which will result in being struck down by constitutional courts. The insertion of the Sedition Law as a backdoor entry seems to be for political reasons. Why is terrorism inserted as a general penal law offence when it is already punishable under special legislation? Why has police custody been extended from 15 days to 90 days?

There are many regressive steps in the new criminal laws and all these will lead to instances of police torture and abuse and there are many grey areas. These additional powers and discretion with the investigating agency will be misused. There is a dilution of civil liberties and furthermore, there is insufficient institutional capacity to enforce these laws properly,” he said.

Reforms were required in the existing criminal colonial laws through specific amendments and more deliberation with all stakeholders but not in this manner. Notably, these laws were passed arbitrarily, in haste, and without even proper debate in the Lower House and Upper House of Parliament,” Advocate Gehlot added.

In this regard, Dr Adish C Aggarwala, Sr. Advocate & Chairman of All India Bar Association and outgoing President of the Supreme Court Bar Association, said, “Many colonial-era laws had been hanging around like an albatross around the neck of the Indian legal fraternity even 75 years after Independence. Now, the soul and spirit of the Bharat have been infused into the key criminal laws, Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Sanhita, that are replacing the archaic and outdated Indian Penal Code, Code of Criminal Procedure and the Evidence Act.”

“The overhaul of these prime criminal laws was long overdue, as many of their provisions had outgrown their purposes and, in fact, were incongruent to the times and objectives for which they had been legislated. The new laws, with the soul and spirit of the new Bharat, therefore bring a sea-change in our criminal justice delivery system,” said Aggarwala.

“The implementation of provisions addressing current challenges, such as the classification of mob lynchings as a distinct crime, including hate crimes on the basis of race, caste or community, gender, language or place of origin, and implementing and supporting victims, will be indispensable. Providing police and judicial staff with sensitivity training would help ensure that these cases are handled impartially and with respect for the trauma of victims,” said Dr Adish Aggarwala.

Former Union Law Secretary PK Malhotra, on this issue, said, “The three new criminal laws, replacing British-era legislation, have led to petitions being filed in the courts questioning the legality of these laws and some state governments are reluctant to implement these laws. It need not be overemphasized that these three laws, i.e., the IPC, Cr.PC, & Evidence Act, were required to be reviewed keeping in view the changing social scenario and technological advancements.”

“Since the subject falls under the concurrent list of the Constitution, Parliament is fully competent to enact these laws. If any State wants modifications in any of these statutes, the Legislature of the State can pass a modification law. However, it can be enforced if the changes made by the state legislature are approved by the president.”

“It is said that the provisions of these three legislations are victim-centric and will lead to an expeditious trial. No doubt provisions like timelines for investigation, trial, delivery of judgement, use of technology in service of summons, trial of offence, virtual hearing, provision for zero FIR, and provisions of community service for minor offences are welcome steps. A section of society feels that certain provisions, like offences relating to terrorism, accident cases, marital offences, and increasing punishment for certain offences, like Section 377 of the IPC, need greater consultation and deliberation. In the absence of sufficient safeguards, the possibility of excessive use of authority by law enforcing agencies cannot be ruled out,” he added.

“The three laws were passed in a hurry and at a time when 25% of the members of Lok Sabha were suspended and had no opportunity to participate in the debate. More consultation with various stakeholders would have given the opportunity to the Government to rectify some of the deficiencies, which are now becoming a cause of concern. Be that as it may, the reality is these laws have been passed by Parliament and the date of their implementation has also been notified. The appropriate course will be to implement these laws and any deficiencies coming to the forefront can be rectified in due course by bringing necessary amending legislation,” said former Union Law Secy PK Malhotra.

Former Additional Solicitor General (ASG) and Senior Advocate Pinki Anand said, “Considering the gargantuan numbers that clog our system, I’m sure the drafters of these Acts had their tasks cut out for them. The numbers necessitated a change. The courts had been trying to tackle this problem using their own powers of mandamus, whether by ensuring that bail matters are heard and listed daily or by setting up targets. Discourage pass-overs and adjournments. The present government has acted with great alacrity in providing what we can now call the Arbitration-isation of criminal justice. The provisions that have reformed our commercial adjudications in court, such as limits on adjournments, and time lines.”

“This is an exercise of giving our criminal statute the thrust of democratic legitimacy. Previously, our criminal statutes drafted in 1860, 1872, and 1973 were products of their time. And to keep them relevant, it required an extensive exercise of judicial interpretation. This would require manifold PILs, Writs, etc. all the way up to the Supreme Court to keep our statutes relevant and achieve the twin purposes of ensuring due process for the accused and fulfilling our society’s moral and legal duty to give justice to the victims of crime. Now, these judicial pronouncements weren’t made strong by electoral legitimacy. The choice of the people to choose the laws that bind us together is a basic feature of a democratic social contract. The Parliament has reviewed the judgements of the past and the jurisprudence that emerged from our Hon’ble Courts and has made democratic calls on what to keep, what to modify and what to remove. This was a democratic exercise that was needed. It’s a revision that was needed. The rust that had settled has been cleansed,” said Senior Advocate Pinki Anand.

N. S. Nappinai, Senior Advocate, Supreme Court, also gave her opinion on the issue and said, “The new criminal laws are here to stay and the sooner we adapt to it, the better. Resistance to change is natural but it can only be assuaged through transparency and effective implementation. For this reason, the shortening of the initial timeline proposed for implementation appears to be a bit of a hasty act. The changes to the procedural aspect in particular needed more time for effective adaptation. One can only hope that an escalated process has been adapted to bring the system to speed.”

“There are many procedures that are a welcome addition. In particular the use of technology in the investigative process. Not addressing existing loopholes in the law be it on procedure or substantive law is an unfortunate miss. A lot more to ensure a safer India including in the cyber domain could have been achieved through effective additions in the new laws.

Retention of a slightly modified version of proving electronic evidence is a grave error, which is despite explicit directions from the Supreme Court to the legislature to address,” said Senior Advocate N. S. Napping.

Advocate Aishwarya Kaushiq, BTG Advaya said, “Political parties and legal professionals are concerned about two issues: the procedural irregularities in passing the three bills in Parliament in December 2023 and their broad implications. The legal fraternity fears these changes could lead to increased litigation as existing cases may need re-evaluation under the new laws, adding to the judiciary’s backlog.”

“Recently, the Chief Justice of India pointed out that district courts often hesitate to grant bail, even for minor crimes. This puts more cases on the desks of the Supreme Court and High Courts, taking up valuable judicial time that could be used for public benefit. The new laws are designed to make it easier to address such issues, improve how investigations are done, strengthen victim rights, and make trials more efficient. At the same time, the new laws grant police broader arrest and detention powers, triggering fears of misuse and unjust arrests. Privacy concerns arise from laws enabling increased state surveillance,” Advocate Aishwarya Kaushik added.

On June 26, the Bar Council of India (BCI) passed a resolution acknowledging numerous protests from bar associations and state bar councils nationwide against the newly introduced criminal laws. Relying on assurances from the Union Home Minister regarding potential amendments based on valid reasons and suggestions, the BCI has urged all bar associations to refrain from protests.

The BCI plans to engage in discussions with the Central Government to convey legal concerns and has requested bar associations and senior advocates to identify unconstitutional or harmful provisions for constructive dialogue.