The many headaches our three 'new' criminal laws could spawn

The laws could strain an Indian judicial system that Chief Justice DY Chandrachud himself said has one of the lowest judge-to-population ratios in the world.
The many headaches our three 'new' criminal laws could spawn
(Express Illustration)

Are the three 'new' criminal laws -- the Bharatiya Nagrik Suraksha Sanhita (BNSS), the Bharatiya Nyaya Sanhita (BNS), and the Bharatiya Sakshya Adhiniyam (BSA) -- set to pose many big headaches?

Many leading advocates and police officers believe so.

The laws borrow heavily -- to the extent of 95%, according to some -- from the statutes they 'replace' and are not even serving to free us from the colonial yoke, experts say.

Why so you ask? As leading Supreme Court advocate Nipun Saxena wrote in a piece in The Leaftlet, "Contrary to popular perception, the CrPC (which was replaced with the Bharatiya Nyaya Sanhita) was not a relic of Macaulayan times."

"If six Indian Law Commissions have spent 13 years creating an Indian law, which was subsequently passed by the Parliament of India (in 1973), the present law cannot by any stretch of imagination be called ‘colonial’ in its outlook," he underlined there.

That settled, let us look at the excess baggage this attempt at modernisation creates.

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The laws could strain an Indian judicial system that Chief Justice DY Chandrachud himself said has one of the lowest judge-to-population ratios in the world.

36 million cases hurdle

With the laws becoming operational on July 1, a 36-million-cases hurdle was immediately raised.

These were the number of criminal cases pending in Indian courts according to the National Judicial grid before the red-letter day. 34 million of these cases are in the District and Taluka courts. 1.7 million are in the High Courts and 18,122 cases in the Supreme Court.  

All these cases are governed by the old laws. Leading Supreme Court lawyer Indira Jaising spoke of why this makes it such a messy affair.

"All the pending cases are supposed to be governed by the old laws. This can go on for ten to twenty years. So, the old laws will continue," she explained to The New Indian Express.

But it doesn't end there.

"The problem will be compounded when you deal with the procedural laws since these can be retrospective. In every case before July 1, if the accused feels the old procedure is beneficial to them in their case, they will demand its application. The police , meanwhile, may demand application of the new procedure. Who exactly will sort out this mess and how long will it take?" she wondered.

Nipun Saxena, who has thoroughly studied the three laws, agreed. He, in fact, added other concerns.

"The new laws are definitely going to delay the proceedings ever more because of their very vague nature which will lead to tremendous confusion. For instance, in every police remand that was coming to an end on or after July 1, the police may claim additional time period under Section 187 of BNSS or the Remand Law, whereas the accused may resist it on the ground that the rules of procedure have changed.

"Even the repeal and savings clause under Section 531 of BNSS (which allows cases before July 1st to be decided using the CrPC) will not help anybody in this situation and will only further complicate matters because it only applies to situations where the timeline has come to an end on 1st July 2024. If the time limit to do something is still pending then which law would apply? A judge would be left to decide what to apply in the absence of any legislative guidance," he stated.

Nipun Saxena also endorsed Indira Jaising's view on how the old laws will continue to be a part of the legal system.

 "The average lifespan of a criminal case in India in trial Courts is about five to seven years. Then time increases with complexities such as number of accused persons, number of witnesses, number of documents, articles and things seized and their on-time availability on every date.

"Now under Section 531 of the BNSS (Bhartiya Nagrik Suraksha Sanhita) an Appeal or a revision arising out of a case registered when CrPC (Criminal Procedure Code) was in force will continue to be governed by CrPC and not BNSS. This means appeals and revisions right up to the Supreme Court will be governed by CrPC. This could take another 20 years. So, CrPC has not been erased by a magic wand. It is still here to stay for another 20 to 30 years until the last of the cases are disposed of," he stressed.

Headaches for the cops

Then there are the problems the new laws encumber the police force with.

Former Director General of Prosecution of Kerala Asaf Ali points out that the state is simply not equipped to deal with many provisions of the new laws.

"For many provisions, it is written 'according to the law set by the state government'. This causes major confusion as the state government has not made any laws or set any order to deal with that particular situation," he explained.

Asaf Ali also mentioned how most police stations lacked the infrastructure to implement the online registration prescribed by these new laws.

"With the advent of zero FIRs, everything will have to be done online. How many police stations in this country have the facilities and people know how to use such facilities for becoming fully digital?” he asked.

Besides this is the difficulty many cops in villages and towns may face in digitally recording the seizures made in a case.

Such possible problems raise the question whether these laws could have been adopted after discussions involving everyone in parliament, instead of being rammed through as it was.

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