New criminal laws ambiguous, raise concerns about their impact: PUCL

Counterview Desk 
The People’s Union for Civil Liberties (PUCL), in a detailed representation to Arjun Meghwal, Union Minister for Law and Justice, and Dr Rajiv Mani, Union Law Secretary, has sought postponement of implementation of the three new criminal laws beyond 01st July, 2024, seeking a national discussion on their nature, need and scope.
Passed last year without any discussion in Parliament, the three laws -- the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) --, the PUCL said, "will have the effect of impacting the entire edifice, structure and process of Criminal Justice Delivery System in India, covering 1.4 billion people across the entire country."

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We are writing to you on behalf of the People’s Union for Civil Liberties (PUCL), one of India’s oldest and largest human rights organizations. The PUCL was founded by Loknayak Jayaprakash Narayan, Justice Tarkunde, Krishna Kant - former Vice-President of India and other illustrious leaders. Many great jurists and academics including Justice Tarkunde, Justice Rajinder Sachar, Prof. Rajni Kothari, Mr. KG Kannabiran and Prof. Prabhakar Sinha have been former leaders of the PUCL.
PUCL has a long and illustrious history of contributing to the development of human rights law and jurisprudence in India. Our involvement has been significant and has traversed many domains: right from the area of securing the fundamental right to privacy of citizens (the SC case on phone tapping) to the field of electoral rights (SC case which made mandatory the requirement of all candidates for election to disclose their assets and record of criminal cases as part of the citizen’s fundamental right to know; to the inclusion of a special tab in ballots for ‘None of the Above’ – NOTA; to the fundamental right of citizens to food and against starvation and development of law on encounter deaths.
It is from the background of long years of work in protecting, promoting and preserving the constitution of India and expanding human rights jurisprudence in India, that we are writing to you with the request that the Government of India postpones beyond 01st July, 2024, the date for implementation of the Bharatiya Nyaya Sanhita, (BNS), 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and the Bharatiya Sakshya Adhiniyam, (BSA), 2024 to replace the Indian Penal Code, 1860, the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872.
We are aware that in a conference on ‘India’s Progressive Path in the Administration of Criminal Justice System’ in Kolkata on 16th June, 2024, you had stated that the new laws – the BNS, BNSS and BSA – had been brought about after extensive discussion, including with the judiciary, and that therefore there was no scope for postponement of the implementation of these laws meant to replace the colonial era, IPC, CrPC and Indian Evidence Act.
We do not want to enter into a discussion at this stage, about the nature and type of public discussion on these laws at the time of passing in December, 2023. Suffice it to say that in the backdrop of suspension of many MPs of the opposition parties and with very limited time for discussion, the type of discussions that these laws ought to have been subjected to, did not happen in December, 2023.
As a result, a critical analysis of these laws reflecting the experiences and views of practitioners – criminal lawyers, law enforcement agencies, judicial officers and ordinary citizens – did not take place. A detailed discussion about the type of impact, especially adverse effects, these laws would have in practice, about alternative measures to effect these changes, including by bringing about amendments in existing laws, and about whether there was in reality any need to replace the triumvirate of IPC, CrPC and Evidence Act could have been discussed and debated. Detailed discussions, inside the Parliament and outside, would have helped to forge a national consensus at best, or a national opinion at the least, about the best manner to proceed to reform criminal laws and criminal justice system in India.
We would like to point out that it is still not too late to organise public discussions at the national level ending in a Parliamentary debate, on the reform of criminal laws. Since a new Parliament is about to be constituted with freshly elected Members of Parliament scheduled to be sworn in from 24th June, 2024 onwards, it is of utmost public importance that the implementation of the 3 new laws – the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) – be postponed and public discussions be initiated across the length and breadth of India. As the adage goes, 'heaven will not fall’ if implementation is delayed. To the contrary, the new Members of Parliament will have an opportunity to debate the matter afresh.
We urge that the request for postponement of implementation and initiating national level public discussion culminating in discussion in Parliament, should not be seen through partisan lens or from a position of adversarial politics. What is at stake is not just the very future of criminal law administration in India; a much greater concern is the health of constitutional democracy. If in the name of criminal law reforms, the changes proposed ends up in concentration of powers with the police, accompanied by immunity and impunity of police forces from being accountable for their actions, it is bound to affect all – common citizens, especially the most marginalised groups and communities, citizens, political parties and other institutional stake holders. To the contrary, a well informed and analytical national discussion will only help strengthen democracy, rule of law and the Constitutional order.
We want to point out to three critical issues which should be considered by the Government while considering the request for postponement and a fresh review and discussion on these laws:
1. These 3 laws will have the effect of impacting the entire edifice, structure and process of Criminal Justice Delivery System in India, covering 1.4 billion people across the entire country. This involves a staggering number of key institutional players – ranging from policemen and prosecutors to government officials to judges and court officials, forensic science specialists, doctors, lawyers, media personnel and finally the citizens of India. It is therefore very important that there is as seamless a transition as possible, when migrating from the old CJS – laws to the new system of laws and procedure. While we recognise that it is impossible for any law to be so constructed as to cover any or all future contingencies, the new CJS should nevertheless be so formulated that there is clarity amongst all players, about the content of the laws as also the roles, powers, rights, limitations and procedures involved with the new laws so that common citizens don’t pay the price of badly formulated laws and unfair criminal justice administration system.
2. The following time line of events are key to assessing as to whether there was sufficient time to plan for transition from the old laws to the new laws:
(a) On 16th February, 2024, the Election Commission of India announced the election schedule for elections to the 18th Lok Sabha covering a 6-week period from 19th April till 01st June, 2024 with election results on 4th June, 2024.
(b) On 23rd February, 2024, it was informed through the Gazette Notification that the new laws will come into effect all over India from 01st July, 2024.
(c) The technicalities and complexities of planning, conducting and completing such a mammoth exercise as the General Elections meant that 2 of the key institutional players in the CJS – the policemen and administrative officials – were totally caught up with election work and hence not free to attend training programmes on the content, process and implementation of the new criminal laws.
(d) In effect it is only after 04th June, 2024, that across India, in all states and UTs, officials in the police, courts and administration are rushing to learn the intricacies, procedural and jurisprudential content of the new laws and be ready to make the transition and shift to the new legal regime.
(e) In other words, practically speaking there has been only 26 days to ensure adequate training of all the key institutional players and prepare the various systems of CJS to be functional wef 01st July, 2024.
3. We are aware that the Bureau of Police Research and Development has been entrusted the job of being one of the Nodal agencies tasked with creating training modules and programmes for police personnel as also with court systems. We also know that 5-day programmes for field level police officials who man the police stations and are involved with investigating crimes from the rank of Deputy SPs to Constables, 2-day modules for police officials from the Inspector General of Police and below levels and 1-day training module for DG level police officials have been held across all the states in India. However, the time has been too short to ensure that all levels of the police become fully aware of the legal content of the new laws as also the procedural components impacting their roles, powers, limitations and responsibilities under the new laws. The sheer size of our country and mammoth number of people involved across many levels from the junior most to the very experienced, makes it impossible for this process to be completed in the 26 days after election results were announced on 4th June, 2024 or even the 4 months after the Gazette notification about implementation of the new criminal laws issued on 23rd February, 2024.
We sincerely hope that the government does not approach this request for postponement of implementation of the 3 criminal laws in a partisan manner or as a matter of prestige but as an issue of concern of each citizen of this country. It is important that the transition from one 'Criminal Justice System’ (CJS) to another is not traumatic or dysfunctional. As it is, our courts are struggling with crippling pendencies, lack of infrastructure and other institutional problems. Being saddled with new problems arising from the implementation of the new laws will push the justice system to breaking point, all of which will affect our own citizens. It is therefore of utmost importance that the implementation of the new criminal laws, the BNS, BNSS and BSA is postponed beyond 01st July, 2024.

Need for renewed national discussion over the new laws

One of the key reasons put forth justifying the replacement of the IPC, CrPC and Indian Evidence Act was that these laws were birthed in the colonial British state and were meant to address the policing requirements of a predatory, rapacious and 'anti-native’ colonial state which looked at Indians with suspicious eyes and hence needed to be suppressed. Thus came the sedition law and other draconian provisions which unfortunately remained on the statute books even after independence. In fact, the Supreme Court has criticised the widespread abuse of sec. 124A, IPC, the anti-sedition law, and has asked the Government not to implement the law until it delivers final orders in the petitions challenging the constitutional validity of the sedition laws. So, it is a legitimate expectation, that since the Government had undertaken a comprehensive exercise to reform criminal laws, the new BNS will have repealed the outdated offence of sedition.
Similarly, the colonial era IPC and CrPC were criticised for seeking to insulate the police and bureaucracy from prosecution for abuse of powers. The colonial era laws were characterised by restrictive provisions requiring sanction from the state (meaning the government) before courts could take cognisance of complaints of offences allegedly committed by public officials. Though most of the provisions of the colonial era laws continue till date, it should also be noted that after independence these laws have been examined on the touchstone of Constitution of India, mainly articles 19,20,21 and 22, and suitably interpreted by judiciary, especially Supreme court to bring them in tune with fundamental rights and Directive Principles. Crucially, well evolved and settled judicial principles have emerged in the last 74 years since the Constitution of India came into effect.
The BNS, 2023, BNSS 2023 and BSA 2023 laws were described as the outcome of a comprehensive review of the criminal justice system and the need to reform and rationalize the criminal laws to make them compliant with modern approaches to penology and criminology. These 3 laws were described as addressing modern day needs and requirements, especially in the use of technology and forensic sciences in investigation of crime, making the CJS more victim-oriented and adopting citizen-centric approaches to inform victims and informants through electronic means, about progress of investigation. The 'reformatory’ approach is supposed to have influenced introduction of new sentences like 'community service’ (sec. 23, Explanation, BNSS) and adopting summary procedures for petty crimes.
But the moot question is what does a detailed and critical analysis of the 3 laws reveal?

• Has the sedition law been actually repealed and erased from the law books.
• What has been done to ensure greater accountability of the police officials to breaking, abusing and misusing the law they are supposed to administer in an independent, non-partisan, free and fair manner?
• Are the new laws truly citizen-focused and victim-friendly while at the same time compliant with the requirements of Art. 21 of the Constitution, the right to life? Do the new laws balance the rights of victims and accused in such a manner that it is constitutionally balanced?
• Are the new laws in conformity with Art. 14, 19 and 22 of the Indian Constitution?
• Very crucially, are the claims that the triumvirate of the BNS, BNSS and BSA laws represent a true and thorough 'de-colonisation’ of the criminal justice system borne out? Or are the new laws a mere regurgitation of the old laws in a new garb, accompanied by careful tinkering in key areas, which centralizes powers with the police, arm the state with more coercive powers while at the same time making them less accountable?

The Parliamentary Sub-Committee on Home Affairs itself notes that a great bulk of the content of the 3 laws – the BNS, BNSS and BSA of 2023 – are nothing but a repetition – or as the Committee referred to it, a “cut-and-paste” job from the existing laws – the IPC, CrPC and the IEA. Actually, it is estimated that almost 80-85% of the total content of the new laws are essentially the same provisions as in the existing laws.
This however raises a very hard question: if the bulk of the content of the new laws (BNS, BNSS and BSA) are only a repetition of the old laws, wouldn’t amendment to the old laws have been sufficient? What new advantage is gained by passing the new laws?
There have, of course, been some grammatical corrections and replacement of some terms written long ago, to make it contemporary. It should also be noted that there is a drastic renumbering of many of the provisions of the laws, with new chapterisations and numbering in the new laws. But the new numbering of sections and changed chapterisations in its wake, gives rise to new problems.
Across the length and breadth of such a vast country such as India, most functionaries of the CJS are familiar with criminal law provisions as "sections’; they will now have to understand the scope of each new provision of law, become familiar with the provisions and remember the provisions – sections – to be used on a daily basis. This is going to be a long, time-consuming process, which is bound to have attendant transitional problems, which need to be factored into the planning to implement the new criminal laws.

The three laws were passed in. the backdrop of suspension of many MPs of the opposition parties and with very limited time for discussion

One of the reasons justifying the introduction of the new laws was that many of the definitions in the IPC, CrPC and Indian Evidence Act used archaic English formulations and complex language; therefore, the new laws were supposed to make definitions simple, easier to follow and precise. It should however be pointed out, that despite the claims, imprecise formulation and ambiguous/ unclear language are to be found in numerous places in all the 3 laws – all of which raises concerns about the impact they will have when these provisions come into effect.

The Union Home Secretary in his presentation to the Parliamentary Sub-Committee on Home Affairs is reported to have pointed to important changes in criminal procedures and has listed 46 items. A few amongst these include the following:

1. One of the more important additions is the inclusion of a new provision relating to 'Zero FIR’s’ (Sec. 173(1) BNSS). This refers to the provision that irrespective of jurisdictional area where the offence is committed, when a complaint is given about the commission of a cognizable offence, then the police station where the complaint is given has to register the case and thereafter transfer to the concerned jurisdictional police station. The complaint can be given orally or by electronic communication.
2. The provisions mandating specific time period, viz., 90 days, within which the police have to provide report of the progress of investigation and copies of police reports to victims and informants. (Section 193(3)(ii) of the BNSS). Sec. 230 of BNSS mandates that the Magistrate shall provide to the accused, as also the victim, copies of the police report (called chargesheet in popular parlance) along with all documents within a period of 14 days from the date of production or appearance of the police.
3. Similarly, to ensure time bound trial and minimize delays, a 60-day time period for framing charges from the date of first hearing of charge by the sessions court (Sec. 251 BNSS); a similar 60-day period is prescribed for framing charges in warrant cases (sec. 263 BNSS).
4. One of the key elements of the changes introduced in the 3 laws relates to integration of technology in legal processes. the introduction of technology in various legal proceedings such as serving summons, notices and warrants electronically thereby enhancing efficiency and reducing paper work. Similar claims are also made about forensic evidence collection for serious offences and recording statement through electronic means.
5. Fixing time frames for various stages of criminal proceedings, as for example timeline for pronouncing judgments in criminal trial; Sec. 258 BNSS prescribes a time of 30 days from date of completing arguments, extendable to 45 days.

It needs to be pointed out that while providing specific time period for completion of various stages in the criminal trial is an important development, this by itself is not sufficient to bring about much needed systemic and structural reforms in the functioning of the Criminal Justice System (CJS). Without ensuring that infrastructural needs of the criminal justice system are addressed, including ensuring adequate personnel in all the key wings of the CJS – police, courts, prisons, correctional administration, forensic departments – the mere provision of time lines for completion of various stages of the criminal trial process will at best be cosmetic and at worse, be willfully ignored with a sense of impunity.
While the introduction of modern technology in court processes in the form of electronic service of summons and warrants is a useful introduction, there are some issues of serious concern too:
(i) We should not lose sight of the reality that knowledge of technology is poor amongst a vast majority of the 1.4 billion citizens of India and there is unequal access to digital rights amongst many social sections, particularly in rural and remote areas. Even as physical means of service are always available, the possibility of misuse/denial of rights cannot be ruled out if we rely totally on electronic means of communication.
(ii) It needs to be pointed out that today, across the country, threats of prosecution, blackmail and extortion are also being used increasingly in online frauds/spams, which the government / cyber-crime has been unable to curb or effectively address. Hence, there is a big chance of abuse.
(iii) At least as far as criminal cases are concerned, a mechanism would need to be provided to protect the rights of the recipients and not just leave or rely on proof of service by way of a tick/read message in the electronic messaging system.
(iv) While these new provisions will make it easier to prosecute or even arrest people without any safeguards from ineffective service, the consequences of not actually receiving electronic messages can be enormous for both victims/ complainants as also persons accused. These include dismissing criminal complaints of genuine victims of crime to concluding trials without participation and in absence of accused during trial. Both ways, the CJS will be meting injustice to both victims/ complainants and the accused persons.
(v) Most crucially, the new laws fail to deal with protecting the integrity of data (data protection) and rights related to electronic evidence.
It needs to be emphasised that the new laws with all their inherent shortcomings, problems, imprecise definitions and objectionable features will come into effect from 1st July 2024.
It is under these circumstances that we urge the Government of India to postpone the implementation of the 3 new laws so as to give sufficient time for all the key institutions and stake-holders involved with the Criminal Justice System’ - the police and the state agencies (both Central and State), courts and the judiciary, prisons and prison administration, advocates and bar associations, the media, educational institutions like the law colleges, medical colleges and forensic science institutions, the public at large and others --  to be adequately informed, educated and trained about the new laws before they are rolled out for implementation. This ‘breathing time’ will also enable a wider national-level public debate so as to ensure that these laws truly embody and reflect a constitutionally grounded, victim-centric, citizen focused and the rights-based approach to law.
We urge that the government and all the political parties do not view this as a partisan issue or in an adversarial manner but approach this as a matter of national concern.