“Given these circumstances, I urge a delay in the implementation of these criminal laws until all stakeholders—judiciary at all levels, investigative agencies, state and union governments, and citizens—have a chance to thoroughly debate and assess their implications on access to justice,” the letter concludes.
NEW DELHI: Recently, According to reports Eminent Lawyer and Judicial Activist Indira Jaising wrote to the Law Minister Arjun Ram Meghwal and CJI DY Chandrachud on new criminal laws, seeking deferment of the laws till further consultations are done with all stakeholders.
The Minister for Law and Justice introduced a national litigation policy aimed at making the government more efficient and responsible by reducing legal costs and decreasing the number of government-related cases, thereby easing the burden on courts.
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Concurrently, the Home Minister has announced the implementation of three new criminal laws starting on July 1, 2024.
Central to every criminal law is adherence to criminal procedure, which is crucial for safeguarding citizens’ lives and liberty as enshrined in Article 21 of the Indian Constitution. The Criminal Procedure Code (CrPC), which previously governed this, has been replaced by these new laws, along with the rewording and creation of new crimes in the Indian Penal Code (IPC).
These changes pose implications for citizens accused in criminal cases. It remains uncertain whether the new laws will achieve the intended reduction in legal costs and court time as envisioned by the National Litigation Policy or rather exacerbate financial burdens on the accused and add to court backlogs.
The replacement of longstanding laws like the IPC, CrPC, and Indian Evidence Act, which have been judicially interpreted over a century by the Supreme Court, undermines the predictability and certainty crucial for the rule of law. This uncertainty increases the risk to citizens’ lives and liberty, given that arrest follows criminal law violations.
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With the imminent coexistence of two different criminal justice systems post-July 1, concerns arise regarding the retrospective application of procedural changes potentially affecting accused individuals negatively and leading to prolonged legal disputes awaiting resolution in the Supreme Court. This ambiguity surrounding applicable laws jeopardizes citizens’ understanding of their rights to life and liberty.
“In each pending case, the question of which law applies will inevitably arise. This is separate from the looming concern over the constitutionality of various provisions in the three new criminal laws, a matter which I refrain from commenting on as it falls within the judiciary’s jurisdiction,” the letter states.
“Given these circumstances, I urge a delay in the implementation of these criminal laws until all stakeholders—judiciary at all levels, investigative agencies, state and union governments, and citizens—have a chance to thoroughly debate and assess their implications on access to justice,” the letter concludes.
Moreover, these changes are expected to compound the already overloaded judicial system, as evidenced by the significant backlog of over 83,000 criminal cases across India. The anticipated 30% increase in backlog without a comprehensive assessment of the impact of these new laws on judicial delays and infrastructure further raises alarms.
In the Lalita Kumari vs. Government of Uttar Pradesh (2013) case, the Supreme Court ruled that a First Information Report (FIR) must be filed upon disclosure of a cognisable offence. Exceptions to this rule include cases where there are suspicions of malicious intent by the complainant or commercial rivalry, which may warrant a preliminary inquiry before filing the FIR.
Contrarily, the Bharatiya Nagarik Suraksha Sanhita, 2023, mandates a preliminary inquiry for every cognisable offence punishable by three to seven years’ imprisonment (Section 173(3) of the BNSS). This diverges from the Supreme Court’s judgment, indicating a disregard for judicial precedent and potentially compromising the liberties protected by the Court.
Additionally, the new law incorporates stringent provisions from the Unlawful Activities Prevention Act (UAPA) into its framework. Sections 15 to 20 of the UAPA, concerning terrorist acts, funding, and recruitment, have been largely adopted under Section 113 of the Bharatiya Nyaya Sanhita Act, 2023.
This inclusion raises concerns as it allows for dual prosecution of the same offence by different agencies, like the NIA and local state police. Such developments suggest a shift where the rights established by the Supreme Court of India can be overridden through legislative measures by a government with a parliamentary majority.
Additionally, the introduction of new offenses, such as the revamped sedition law under Section 152 of the Bharatiya Nyaya Sanhita Act, 2023, which includes references to the sovereignty and integrity of India, exemplifies legislative measures potentially infringing upon citizens’ fundamental rights.
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The incorporation of provisions from the stringent Unlawful Activities Prevention Act (UAPA) into the new laws, allowing dual prosecution by different agencies for the same offense, disregards previous Supreme Court judgments and threatens established rights.
Indira Jaising raises concerns, stating,
“The lack of consultation with many stakeholders has sparked uproar. How does this serve the people’s interests? Despite the top court’s stay, the sedition law was reintroduced. Criminal laws demand clarity; why complicate matters by repackaging old laws, creating difficulties for judges, lawyers, and accused individuals?”
Given these concerns and in light of the National Litigation Policy’s goals, the implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023, Bharatiya Nyaya Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023, from July 1 should be delayed until a judicial audit evaluates their potential impact on increased backlog and infringement of accused persons’ rights, ensuring access to speedy justice.
