Today (1st July),The first FIR under the Bharatiya Nyaya Sanhita, 2023, was registered in Delhi against a street vendor for obstructing a foot over bridge. Legal experts express concerns about challenges ahead for law enforcement and judicial systems as the new laws take effect.
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NEW DELHI: Today(on1st July), The first FIR under the Bharatiya Nyaya Sanhita, 2023, was registered at Kamla Market Police Station in Delhi against a street vendor for obstruction under a foot over bridge near New Delhi Railway Station. The case was lodged under Section 285 of the newly implemented law. As these three new criminal laws take effect today, several legal experts have expressed concerns about the significant challenges ahead for law enforcement agencies, judicial officers, and legal professionals.
The introduction of these laws is expected to impact a large number of citizens at various points in their lives. The passage of the three criminal law bills in Parliament last year ignited extensive debates regarding the necessity of such an evolution in the legal field.
Former Union Law Minister and Congress leader Ashwini Kumar voiced his concerns in an interview. He stated-
“The government’s haste in introducing and implementing these laws in Parliament is not conducive to a democratic process. They were not sufficiently discussed in parliamentary committees nor extensively debated in the House, and there was no consultation with stakeholders.”
He emphasized the need for a more inclusive process, saying-
“The demand from opposition parties for a change in the legal framework of criminal laws should be preceded by meaningful deliberations involving all stakeholders, which seems lacking currently. Addressing this grievance should be a priority for the ruling party.”
Advocate Sumit Gehlot from Fidelegal Advocates and Solicitors also shared his views, highlighting the potential for misuse of these laws.
“The new criminal laws grant law enforcement agencies unchecked powers without adequate checks, balances, or safeguards, potentially leading to misuse. These laws appear to overlook provisions for safety and are at risk of violating civil liberties.”
– he said.
Gehlot further asserted-
“The inclusion of the Sedition Law under Section 150 of BNS has made the offence draconian and is likely to face challenges in constitutional courts. Similar scrutiny is expected for other provisions, potentially leading to their invalidation. The insertion of Sedition Law appears politically motivated through a backdoor entry. Questions arise regarding the inclusion of terrorism as a general penal offence despite existing specific legislation. Additionally, the extension of police custody from 15 days to 90 days raises concerns.”
He continued-
“The new criminal laws have introduced several regressive measures that may increase instances of police torture and abuse, while also leaving many grey areas. The expanded powers and discretion given to investigating agencies could be prone to misuse. There’s concern over a potential dilution of civil liberties, compounded by insufficient institutional capacity to effectively enforce these laws.”
Gehlot emphasized the need for more considered reforms-
“Reforms in the existing colonial-era criminal laws were indeed necessary, involving specific amendments and extensive deliberation with all stakeholders. However, the manner in which these new laws were passed—arbitrarily, hastily, and without thorough debate in both houses of Parliament—has been notably criticized.”
Dr. Adish C. Aggarwala, Senior Advocate and Chairman of the All India Bar Association, as well as the outgoing President of the Supreme Court Bar Association, provided a contrasting perspective.
He stated-
“Many colonial-era laws had lingered like an albatross around the neck of the Indian legal fraternity even 75 years after Independence. Now, the essence of Bharat has been infused into the new key criminal laws: Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Sanhita, replacing the archaic Indian Penal Code, Code of Criminal Procedure, and Evidence Act.”
The Need for Change
Dr. Adish Aggarwala emphasized the urgency and significance of these reforms:
“The overhaul of these key criminal laws was long overdue, as many of their provisions had become outdated and no longer aligned with contemporary needs and objectives. The new laws, reflecting the essence of modern India, mark a significant transformation in our criminal justice delivery system.”
He further elaborated on the implementation of new provisions addressing contemporary challenges:
“The implementation of provisions addressing current challenges, such as classifying mob lynchings as distinct crimes and addressing hate crimes based on race, caste, community, gender, language, or place of origin, along with supporting and empowering victims, will be crucial. Providing sensitivity training to police and judicial staff can help ensure these cases are handled impartially and with due respect for the trauma experienced by victims.”
Legal and Procedural Implications
Former Union Law Secretary PK Malhotra shared his perspective on the legal and procedural aspects of these new laws:
“The introduction of three new criminal laws, replacing British-era legislation, has prompted petitions challenging their legality in courts, and some state governments are hesitant to implement them. It is crucial to emphasize that these laws—the IPC, Cr.PC, and Evidence Act—required review to align with evolving social dynamics and technological advancements.”
He addressed the constitutional authority of Parliament in this context:
“Since the subject falls under the concurrent list of the Constitution, Parliament has full authority to enact these laws. If any state wishes to modify any of these statutes, the state legislature can pass a modification law. However, such modifications can only be enforced if approved by the President.”
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Highlighting the potential benefits and concerns, Malhotra said-
“The provisions of these three legislations are said to be victim-centric and aimed at expediting trials. Provisions such as timelines for investigation, trial, judgment delivery, use of technology in serving summons, trial of offenses, virtual hearings, zero FIR, and community service for minor offenses are undoubtedly welcome steps. However, some sections of society believe that certain provisions—such as those relating to terrorism, accident cases, marital offenses, and increased punishments for certain offenses, like Section 377 of the IPC—require greater consultation and deliberation. Without sufficient safeguards, there is a concern about the potential for excessive use of authority by law enforcement agencies.”
He also expressed concerns about the legislative process:
“The three laws were passed hastily, during a period when 25% of Lok Sabha members were suspended and unable to participate in the debate. Greater consultation with various stakeholders could have provided the Government an opportunity to address some of the deficiencies that are now raising concerns. Nevertheless, the reality is that these laws have been passed by Parliament, and their implementation date has been set. The appropriate course of action now is to implement these laws, with any emerging deficiencies to be rectified in due course through necessary amending legislation.”
The Practical Challenges
Former Additional Solicitor General (ASG) and Senior Advocate Pinki Anand provided a practical perspective on the challenges faced by the judicial system:
“Given the overwhelming caseload that clogs our system, the drafters of these Acts faced a significant challenge. The sheer volume of cases necessitated a change. Courts have been trying to address this issue using their own powers, such as mandamus, by ensuring bail matters are heard and listed daily and by setting targets to discourage pass-overs and adjournments. The current government has responded swiftly, introducing what can be termed the ‘Arbitration-isation’ of criminal justice. This includes provisions that have reformed our commercial adjudications in court, such as limits on adjournments and specific timelines.”
Anand emphasized the democratic legitimacy of these reforms:
“This exercise gives our criminal statutes the thrust of democratic legitimacy. Our previous criminal statutes, drafted in 1860, 1872, and 1973, were products of their time and required extensive judicial interpretation to remain relevant. This often involved numerous PILs, writs, and other legal actions reaching the Supreme Court to ensure due process for the accused and fulfill society’s moral and legal duty to provide justice for crime victims. However, these judicial pronouncements lacked electoral legitimacy. In a democratic society, the people’s choice to determine the laws that bind us is fundamental. Parliament has reviewed past judgments and the resulting jurisprudence, making democratic decisions on what to retain, modify, or remove. This democratic revision was necessary to cleanse the rust that had settled on our criminal statutes.”
Adaptation and Implementation
Senior Advocate N. S. Nappinai commented on the need for adaptation and proper implementation:
“The new criminal laws are here to stay, and the sooner we adapt to them, the better. Resistance to change is natural, but it can be mitigated through transparency and effective implementation. However, the decision to shorten the initial timeline for implementation seems hasty. The changes to procedural aspects, in particular, required more time for effective adaptation. One can only hope that an accelerated process has been adopted to bring the system up to speed.”
She highlighted specific procedural improvements and shortcomings:
“There are several welcome additions, particularly the use of technology in the investigative process. However, the failure to address existing loopholes in both procedural and substantive law is a significant oversight. More could have been done to ensure a safer India, especially in the cyber domain, through effective enhancements to the new laws. Retaining a slightly modified version of the rules for proving electronic evidence is a grave error, especially given the Supreme Court’s explicit directions to the legislature to address this issue.”
Concerns from the Legal Community
Advocate Aishwarya Kaushiq of BTG Advaya expressed concerns from the legal community:
“Political parties and legal professionals are troubled by two main issues: the procedural irregularities in passing the three bills in Parliament in December 2023 and their far-reaching implications. The legal community is concerned that these changes could result in increased litigation, as existing cases may require re-evaluation under the new laws, further adding to the judiciary’s backlog.”
She referenced a recent observation by the Chief Justice of India:
“Recently, the Chief Justice of India highlighted that district courts often hesitate to grant bail for minor offenses. This reluctance burdens the Supreme Court and High Courts, consuming valuable judicial time that could otherwise benefit the public. The new laws aim to simplify the process, enhance investigations, strengthen victims’ rights, and expedite trials. However, these laws also expand police powers for arrest and detention, raising concerns about potential misuse and unjust arrests. Additionally, privacy concerns are emerging due to increased state surveillance authorized by these laws.”
Response from the Bar Council of India
On June 26, the Bar Council of India (BCI) passed a resolution acknowledging the widespread protests from bar associations and state bar councils nationwide against the newly introduced criminal laws. Relying on assurances from the Union Home Minister regarding potential amendments based on valid reasons and suggestions, the BCI has urged all bar associations to refrain from protests.
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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.
