New criminal laws come into effect today

THREE new criminal laws came into effect today, July 1, across the country, changing India's criminal justice system and ending colonial-era laws. 

These new laws — Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita 2023 and Bharatiya Sakshya Adhiniyam 2023 — replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPc) and the Indian Evidence Act, respectively. 

The passage of these three criminal laws in Parliament last year happened when 97 MPs were suspended from the Parliament.

There has been a flurry of criticisms about the new laws, with many legal experts opposing its implementation and saying more discussions should have taken place before the new criminal laws were enforced.

Former Union Law Minister and senior advocate Ashwini Kumar, talking to ANI, criticised the government's approach, stating, “The way the government rushed to bring these laws in Parliament and the way implementation is sought to be rushed through is not desirable in a democracy. These laws were neither adequately discussed in the Parliament committee nor extensively discussed in the House, even no consultation held with the stakeholders.”

Advocate Sumit Gehlot from Fidelegal Advocates told ANI that the new criminal laws have given law enforcement agencies immense power without checks and balances, and there is a potential for violations of civil liberties. He also added that the sedition law has been made ‘draconian.’

“Reforms were required in the existing criminal colonial laws through specific amendments and more deliberation with all stakeholders, but not in this manner. Notably, these laws were passed arbitrarily, in haste, and without even proper debate in the Lower House and Upper House of Parliament,” advocate Gehlot added.

Dr Adish Aggarwala, senior advocate and chairman of All India Bar Association and outgoing President of the Supreme Court Bar Association, said, “The implementation of provisions addressing current challenges, such as the classification of mob lynchings as a distinct crime, including hate crimes on the basis of race, caste or community, gender, language or place of origin, and implementing and supporting victims, will be indispensable." 

Geeta Luthra, senior advocate, Supreme Court of India, said that a summary of many Supreme Court decisions has been put into these new laws, addressing criticisms of delays in the legal system. "A solution was required to solve this,” she added.

Former Union Law Secretary PK Malhotra pointed out that the laws were passed hastily and needed “more consultation with various stakeholders.” He said that this would have given the government the opportunity to rectify some of the deficiencies, which are now becoming a cause of concern.  

P K Malhotra added, “If any State wants modifications in any of these statutes, the Legislature of the State can pass a modification law. However, it can be enforced if the changes made by the state legislature are approved by the President.”

Senior advocate Pinki Anand, former Additional Solicitor General (ASG), remarked on the judiciary's ongoing efforts to tackle pending cases. She said, “This is an exercise of giving our criminal statute the thrust of democratic legitimacy. Previously, our criminal statutes drafted in 1860, 1872, and 1973 were products of their time. And to keep them relevant, it required an extensive exercise of judicial interpretation."

Former LG of Puducherry and former IPS officer Kiran Bedi praised the reforms as an opportunity to retrain police “for accountability, transparency, technology, victims' rights, speedy trials in courts, accused's rights.”

N S Nappinai, senior advocate, Supreme Court, shared her opinion on the issue and emphasised the importance of adapting to the new laws, saying the “new criminal laws are here to stay." 

She added, “There are many procedures that are a welcome addition. In particular, the use of technology is important in the investigative process. Not addressing existing loopholes in the law, be it on procedure or substantive law, is an unfortunate miss. A lot more to ensure a safer India, including in the cyber domain, could have been achieved through effective additions to the new laws. Retention of a slightly modified version of proving electronic evidence is a grave error, which is despite explicit directions from the Supreme Court to the legislature to address.”

Advocate Aishwarya Kaushiq, BTG Advaya, raised concerns about procedural irregularities in passing the three bills in Parliament in December 2023 and its broad implications. He added, "The legal fraternity fears these changes could lead to increased litigation as existing cases may need re-evaluation under the new laws, adding to the judiciary's backlog.”

On June 26, the Bar Council of India (BCI) passed a resolution acknowledging numerous protests from bar associations and state bar councils nationwide against the newly introduced criminal laws. The BCI urged all bar associations to refrain from protests based on assurance from the Home Minister of the potential amendments.

The BCI plans to engage in discussions with the Central Government to convey legal concerns and has requested bar associations and senior advocates to identify unconstitutional or harmful provisions for constructive dialogue.