Weighing the scales

TNIE talks to lawyers, experts and stakeholders to examine the positives and negatives of the new criminal law
Representative image
Representative image

KOCHI: Over 160 years ago, Lord Macaulay formulated a penal code for a country under Crown rule. Now, this system has been amended with three new laws that claim to shake off the colonial vestiges and bring about a judicial process that aids the ‘common man’.

Representative image
The promise of new criminal laws under test

The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) came into force on July 1, replacing the Indian Penal Code (IPC) of 1860; Code of Criminal Procedure (CrPC) of 1898; and the Indian Evidence Act of 1872, respectively.

Across society, the new laws received a mixed bag of responses with some in the legal fraternity calling them a ‘necessary step’ while some terming them as cosmetic changes that need not have come by when the system was well in place. They also add the laws had a ‘draconian’ twist to it in some of its provisions. Protests have sprung up across the country against the laws, with even doctors staging a demonstration in Delhi on July 1 saying the new statutes could unduly penalise them for negligence.

Pleas have been filed in Kerala High Court and Madras High Court saying the Hindi names of the laws are ‘unconstitutional’ and could cause confusion among lawyers from states where Hindi is not a spoken language.

Many organisations also held awareness sessions to sensitise the public towards the new laws. “We invited experts who spoke on the various provisions and even held a quiz,” says a official from the Indian Institute of Science, Education and Research in Thiruvananthapuram.

With the laws about to change the legal landscape, TNIE speaks to experts about the new system and its positives and negatives.

A technical ‘hiccup’

For some lawyers, the new system poses only technical ‘hiccups’. The popular IPC sections, which were at their fingertips have to be looked over for the new equivalent provisions in the BNS. For example, a murder that was under Section IPC 302 now falls under BNS Section 103. The definition of rape as mentioned in Section 376 IPC now comes under BNS Section 64. The imposition of curfews to keep law and order under CrPC Section 144 is now under BNSS Section 163.

“Surely the new laws take into account the changing times and society,” says A Ajith Kumar, a public prosecutor. He is trying to find out how the 511 sections of the IPC have been condensed into.

“This is the technical difficulty that I speak of. The substance has not changed, and neither has utilities, but there is a technical difficulty for the practitioners. Those studying the law will be taught the new system, but we will have to read up the revisions and get it into our practice,” he says.

But R Bijukumar, the former principal of Government Law College in Thiruvananthapuram, feels the ‘technical hiccup’ is just a transitionary phase. “The ‘hiccup’ will be over in no time,” he says.

A rearrangement

According to Bijukumar, the new laws are 99 per cent of the earlier ones. Even the wording is also the same in most places. “What has been done is a rearrangement of the manuals, incorporating the innumerable amendments that have come by in all the years.

“The laws are over 100 years old. And these come with umpteen amendments numbered within the provisions as subtexts, adding to the complexity. That has been removed in the new versions by arranging the provisions based on the topics. There was also a need to incorporate the various judicial decisions, such as the one on sedition,” he says.

Some provisions have been struck down such as adultery, which is no longer an offence. “Then, there was a need to incorporate the digital advances that have brought about new challenges and also make provisions for new crimes such as mob lynching, hate crimes, organised crime, etc. Such a streamlining was necessary for the prompt enforcement of the statutes,” he says.

The real ‘hiccup’ however will be faced by the lawkeepers and the judiciary as they wade parallelly through two documents — the old and the new. Some police officers too corroborate this.

The midnight ‘loophole’

“According to the Constitution, the IPC cannot be given retro effect. But for CrPC and Evidences Act also retro effect is missing. That means the investigating officers and the judges will have to be very careful in dealing with cases that were filed before 12 am on July 1. Those would come under the earlier laws and the new ones under the revised laws.”

There are a of lot changes, especially in the collection of evidence, which now requires audio and video recording with new time frames instituted for offences. These are all the practical difficulties and if not well executed, could work in favour of the accused,” explains Bijukumar.

An ‘eye-wash’

While many legal experts welcomed the new age to define children (from 15 to 18) and the extension of police custody up to 60 days to facilitate the investigation, several lawyers feel the process was an eye-wash that tilted towards an ‘unwanted’ nationalistic mindset.

“There may have been a need for a restructuring but such a change was unnecessary. There is a lot of confusion and the real stakeholders, the common man, will be affected in the long run,” says Sandhya Raju of Human Rights Law Network.

“Certain provisions such as senior citizens and women not having to go to the police station to file FIR and inclusion of cyber aspects may be welcome. However, the timeline where they are allowed for filing seems dicey. In cases such as POCSO, as per BNS 193(2), a 60-day timeline is stipulated,” she says. The entire thing is going to throw up a huge challenge of re-learning, she says, adding, “The third-year students would be better equipped at the laws than practising advocates.”

‘Rigorous punishments’

Sandhya also points towards the increased punishments. “This will ultimately affect the marginalised sections more,” she says, adding that “without a concurrent change in judicial infrastructure, such changes will remain ‘cosmetic’ much like the 2013 amendments brought in after the Nirbhaya case.”

The amendments widened the ambit of sexual abuse. “However, as long as the approach of the authorities and the system remains unchanged, no particular change can be brought about on the ground.”

Former Assistant Inspector General of Police Suneesh Kumar R says it is sure a victim-centric and women-centric system with punishments such as the death penalty for raping children under the age of 18, thanks to the new definition of children, and the need to hear the victim in case of withdrawal of criminal cases by the state. That said, there are some major drawbacks as well, he says. “Capital punishment in gang rape cases of minors could lead to the murder of more victims. Always, victims are the first witnesses of the crime, killing them removes the main witness,” he says.

Also, he adds, the wording is vague in some sections. “For example, BNS Section 69.”

The section says: ‘Whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.’

“It points a moralistic finger at society. The wording can also be misinterpreted. Also, for the in-absentia trial (BNSS 356), if convicted in-absentia, one cannot go for an appeal if the accused is absconding for more than three years,” he says.

Another major drawback, he says, is the lack of criminal remedy for sexual harassment of men. “It can only be addressed as a simple hurt case under BNS 321 and 323,” Suneesh says. That means sexual assault of men by men, transgender persons, and animals may go unpunished in future. Gruesome crimes such as necrophilia, which needed to have been included, have also been left out.

“Sometimes, the sexual assault happens after killing the victim, and that now doesn’t classify as sexual assault,” he says.

The legal fraternity and stakeholders are analysing the new laws and figuring out the positives and negatives daily. It may take some more days to get a detailed picture, and more cases being tried under the new laws to understand the situation, they say.

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