Introduction
With a developing legal system, India has made significant progress in the legal scenario in the past century. Continuous efforts by various stakeholders such as members of the Parliament, legal Activists and suggestions from the Judiciary have improved the overall standing of law in India. With a strong commitment to further betterment, three new Acts were passed with the aim of replacing the existing Acts for criminal law. The Bill for the new criminal laws was passed by the Parliament last year in December 2023 and they have recently taken effect from July 1, 2024. The Bharatiya Nyaya Sanhita (BNS) replaced the Indian Penal Code (IPC), Bharatiya Nagrik Suraksha Sanhita (BNSS) replaced the Code of Criminal Procedure (CrPC) and the Bharatiya Sakshya Adhiniyam (BSA) replaced the Indian Evidence Act.
The objective of passing the new Acts was to change the way justice is offered in India. Aims such as providing speedy trials, clarity through better definition of punishments and their scope, safety of several vulnerable groups, etc. were highlighted to promote the moto “access to justice by all”. However, the question arises, were these drastic steps even required? Although the claims suggest that this will bring a positive change in the system, does it actually promote such principles of justice? This paper talks about key highlights of the new Acts with special emphasis on the powers given to police personnel while understanding if they align with the established principles of proportionality and due process. Additionally, themes such as justice and punishment have also been delved into. The paper concludes with a critique of the new Acts and includes a way forward to incorporate them into the Indian legal system.
Highlights of the New Criminal Laws: A Light in the Dark?
Several important features of the new laws have been mentioned below:
First, allowing the filing of Zero FIRs or e-FIRs can be a revolutionary move as it provides an individual with the opportunity to report crime as soon as it is committed. It takes away most factors that would cause a delay in filing an FIR in the nearest police station. This provision has specially been provided for women so they can easily report crimes without facing stigmas that come along with it.
Second, the new law promotes shorter sentences for first-time offenders. These individuals, save some circumstances, can be released on bail if they have undergone a third of the maximum sentence prescribed. This provision reduces the burden on judiciary while also reducing the number of under-trial prisoners thereby promoting rights of imprisoned/ incarcerated individuals.
Third, including forensic techniques and technology to be utilized on the crime scene and with the process of investigation can lead to more efficiency and transparency. Such a step towards modernisation can prove to be very fruitful in the Indian legal scenario.
Fourth, addition of community service as an alternative to fine or imprisonment promotes restorative justice. This is a huge shift from the previous system that focused completely on punishments to a more refined system that promotes restorative justice. In the long term, it is more beneficial to the society and its members as it promotes rehabilitation of the offenders with the victims, their families and the society at large.
Fifth, there has been a drastic change in the timeline of reporting of incidents and filing documents related to the case. Further, there has been a change in the procedure that is followed by the police once an FIR is filed. Other changes include altered timeline to provide judgement after the last step of the case and the duration of police custody, etc.
Following the New Criminal Laws: Do they follow established principles of Due Process and Proportionality?
Among the many fundamentals of what forms the basis of fair law, the principles of due process and proportionality lie in the front and center of it. The due process doctrine ensures that an individual is not being impacted by the laws formulated by the government in an adverse manner and they are not being deprived of their essential rights such as right to life, personal liberty, etc. The principle of proportionality assesses the pros and cons of a certain action and maintains balance between the rights of all the parties involved. It essentially identifies all the options available and chooses the most optimal/ balanced solution.
Considering the changes that the passing of the BNS and BNSS has brought in the timeline following the registration of an FIR, it is important to analyze whether such changes conform to the established principles under criminal jurisprudence. Earlier, the timeline for detaining an individual in police custody if the investigation could not be completed within 24 hours was Fifteen days. This has been amended and Section 187 of BNSS allows for a period of up to ninety days of police custody. This legal provision has been called a “retrograde provision” and has sparked debates amongst activists as it adversely affects the rights of individuals.
Such an extension raises concerns regarding coerced confessions along with increased police brutality. This provision can potentially undermine the right to a fair legal proceeding and also violates their right to life and liberty under Article 21 of the Constitution. Such a provision cannot be enforced in the name of justice if it violates the rights that are promised to individuals.
Another concern with regards to the new laws is the discretionary power that has been given to the police personnel. Police officers have the discretion to choose between filing a report under the existing laws or the new laws without clear guidelines or specifications. This type of discretionary power is very broad in nature and can lead to various issues due to inconsistent application. Such inconsistencies can cause huge issues in the Court as reports filed by police stations will vary due to the law applied. Additional issues regarding fairness and accountability might arise from such inconsistent application of laws. Further, such discretionary power without any specifications or guidelines creates more problems than it solves.
Additional Issues with the Enactment of BNSS
Apart from the issues with the principles of due process and proportionality, there are further concerns that the enactment of BNSS has brough into light. First, with the enactment of the new laws, there has been a major change in procedure of investigation, filing of FIRs, filing of certain reports and the timeline of police custody, etc. These provisions have been mandated without any prior discussions with the stakeholders and therefore, can amount to a threat to rights of individuals. Apart from this, there has been no proper counselling or training arranged for police officers to bring a uniform change to the Indian legal system.
Second, due to the lack of proper training and guidelines on how to apply the new laws while the old laws are still applicable, there are numerous untied ends. The new laws were passed in a haste with improper planning and therefore, have the potential to create significant confusion in the judicial proceedings. Inconsistencies between the new laws and the old laws which are still functional and will continue to govern cases that were filed under them are bound to increase the pendency of a case due to changed procedures. Such severe confusion prolongs justice and makes it farther to reach which is in contradiction to the aim and the objectives with which the new laws were passed.
Third, there have been several allegations against the new laws that most of them have been plagiarized from the existing laws. Although there are several changes from the previous laws, whether adverse or positive, and they can be clearly seen, most individuals such as the Opposition members of the Parliament, various legal activists, etc. have claimed that there was no use of passing new Acts as amendments to the existing laws would have sufficed the purpose. Further, the claims suggest that passing of these new laws has brought about adverse consequences and therefore, they have not fulfilled the purpose they were passed with as some even suggest that there will be a surge in criminal litigation cases due to the unclear situation.
Fourth, these laws were in discussion even before they were passed and they have faced major backlash since. Certain committees were set by legal organizations to formulate reports regarding the recent laws, bills then, to assess the effects that their enactment will have along with other factors that will get influenced. Despite the suggestions given by the committees that formulated the said reports, they were ignored and no changes were made. CJI DY Chandrachud called the enactment of these new laws as a “watershed moment for our society”. Despite such backlash due to unclear laws and terminology used along with unbridled power given to police personnel and improper implementation, these new laws were enacted.
What can be the Way Forward?
Although the new laws that have been enacted have numerous drawbacks, there are a few notable changes that can help improve the Indian legal system. To retain the positive changes while eradicating the provisions that may lead to unfairness such as the wide scope of power given to the police, either of the two following ways can be adopted. The first being a minor scheme of implementing proper guidelines that would clearly define the scope of police powers along with training sessions can be helpful. Several amendments to the new Acts can be made to incorporate the suggestions of the stakeholders thereby benefitting everyone. The second method being a drastic solution can be repealing the new Acts and amending the existing Acts, namely IPC, CrPC and the Indian Evidence Act to incorporate certain changes that were brought about by BNS, BNSS and BSA respectively.
Conclusion
The three new Acts were passed with an aim to better the Indian legal scenario by focusing and promoting restorative justice rather than punishment. Although certain steps taken in this direction were commendable, most of the legal provisions turned out to be disastrous due to haste in plannings and implementation. Among the biggest concerns that these new Acts bring is the unbridled and unguided power that has been given to the police personnel.
The new laws were greeted with severe backlash due to the effects such power can have on the rights of individuals. Apart from the rights of such detainees being affected, this only increases the chances of custodial deaths in India along with an increased burden on the judiciary. Other powers include making arrests on grounds of certain serious laws such as Unlawful Activities (Prevention) Act without any previous sanctions to do so which was not permitted before. Other arbitrary powers include declining of filing an FIR, etc. Considering such a scenario, it is essential to take stringent steps to correct such a situation and therefore, improve the Indian legal system.
Submitted by Jhanvi Jain, pursuing B.Com LLB. from Jindal Global Law School.