New criminal laws: Reformation, or straight path to 'Police Raj'?

CHENNAI: December 2023 etched itself into the annals of India’s legal history, marking a pivotal moment as the nation bid farewell to its colonial-era criminal laws.

The Indian Penal Code (IPC) of 1860, the Criminal Procedure Code (CrPC) of 1898, and the Indian Evidence Act (IEA) of 1872 – pillars of the Indian criminal justice system for over a century – were replaced by three new laws: Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Samhita (BNSS), and the Bhartiya Sakshi Adhiniyam (BSA).

This monumental shift wasn’t a sudden decision but the culmination of a process that began in May 2020. The Centre constituted a Committee for Reforms in Criminal Law, tasked with recommending updates to the British-era statutes. The committee’s work bore fruit in August 2023 when the bills were introduced during the Monsoon Session of Parliament.

The Winter Session of the same year saw their passage, followed swiftly by the President’s assent, paving the way for a new chapter in Indian criminal law.

Criticisms

The journey to these new laws has been far from smooth, sparking intense debates across political, legal, and human rights circles. The Sanskritised names of the new codes drew attention, but it was the expanded powers granted to investigating agencies that ignited the most heated discussions.

Critics argue that the changes, while significant, could have been achieved through amendments to the existing laws rather than creating entirely new codes.

Several provisions have come under particularly intense scrutiny:

• The anti-national law, which some fear, could be used to stifle dissent

• Trial in absentia, allowing courts to proceed with trials even when the accused is not present

• Extended police custody periods from 60 to 90 days, where experts opine to be taking us back to Colonial era or even worse

• Limitations of third-party intervention in mercy petition applications, potentially overseeing the ignorance of legal illiteracy and lack of awareness of appropriate remedies

Section 356 of the BNS permits trials to proceed if the offender is proclaimed an absconder evading trial with no immediate prospect of arrest. Critics argue that this violates principles of natural justice, potentially leading to unfair convictions.

However, supporters contend that it’s necessary to address the massive backlog of pending criminal cases that has long plagued the Indian judicial system. This will also challenge those offenders who swiftly take the international route and remain clandestine, leading to a large number of cases that don’t see the light of justice.

Supporters’ perspective

Supporters of the new laws have endorsed them as progressive, arguing that while past laws focused on punishment, the new laws emphasise justice.

The Parliament has passed many reformative, unique, and robust laws. Some of the key features are:

• Enhanced penalties for minor rape up till death sentences or life imprisonment for convicted offenders

• A strong stance against mob lynching and anti-nationalism, addressing growing concerns about vigilante justice

• A clear and specific definition of terrorism, demonstrating zero tolerance for any forms of insurgencies and providing law enforcement agencies with scope and guidelines

• Time-bound dispositions, including a maximum period of 45-day limit for pronouncing reserved judgments to reduce delays in the justice system

• Mandatory videography of criminal searches and seizures, increasing transparency and reducing the potential for political interference or evidence tampering

• Acceptance of digital evidence and technology in legal proceedings

• A 7-day timeline for delivering medical reports of rape victims to investigating officers

• Requirement of forensic experts at crime scenes for offenses carrying sentences exceeding 7 years

• Introducing community service as a punishment to petty crimes

Embracing tech, AI

Digital and sophisticated crime with globally-connected criminal networks has created complexity in crime patterns that require equally sophisticated investigative techniques.

Cybercrime, in particular, has emerged as a significant challenge. Data theft has become a daunting task for law enforcement, with privacy compromised on a global scale. India’s success in mastering the digital economy should embolden its aspirations for a progressive, digitalised legal system as well.

The COVID-19 pandemic accelerated the adoption of virtual modes in legal proceedings, and the new laws capitalise on this shift. The new laws promote digital recording throughout the criminal justice process – from the filing of FIRs to the final judgments. This digital transformation will promise transparency and accountability.

The new law directs digital recording right from the inception of criminal investigation – that is FIR till the judgement and disposal of the case. Not to forget that virtual arguments have created vast scope for lawyers to pursue their practice and present their legal acumen from any part of this country. This has encouraged many lawyers from the remotest spot in the country to confidently argue in various high courts and Supreme Court without any deterrence of distance.

The Supreme Court is currently developing a virtual court model that will convert speech to text, significantly reducing the time spent recording evidence. Additionally, plans are underway for an app that will keep all stakeholders of a criminal case updated on judicial proceedings, facilitating better communication and coordination.

In the opinion of the honourable Chief Justice of India, AI algorithms will hasten investigation, and help break complex evidences to resolve intricate cases at a fast pace. They may even be a likelihood to even predict crimes, if the technology is used with its ethical boundaries and understanding its limitations.

Predictive policing is another aspect that global policing agencies are analysing to forecast criminal activities with AI analytics. So, when the world is running at an unimaginable pace, the requirement for new laws and new thoughts is mandatory.

Addressing scepticism

Some critics argue that the wholesale replacement of long-standing laws was unnecessary, suggesting that amendments would have sufficed. They question whether the marginal changes in the law justifies its creating entirely new codes with new titles.

However, supporters of the new laws counter the argument that the laws have evolved since 1793, and a comprehensive overhaul was long overdue. They argue that the current changes aren’t about reinventing the wheel but rather about creating a more efficient and responsive legal framework.

The introduction of these new criminal laws represents a significant step in India’s legal evolution. While concerns and criticisms persist, the potential for a more efficient, technologically advanced, and justice-oriented system is clear.

The success of these new laws will depend not only on their content but also on how effectively they are implemented and how well the legal system as a whole adapts to this new paradigm. Ongoing dialogue between lawmakers, legal professionals, and citizens will be crucial to ensure that the new system truly serves the cause of justice in a modern, digital age.

Despite such progressive reforms, if the question remains if these new laws were a necessity, remind yourself law is change and change is law to manifest dominance incessantly.

(The writer is advocate practicing at the Supreme Court of India)