Today, on Nov 22nd, the Supreme Court of India questioned the effectiveness of new criminal laws during a hearing related to Section 111 of the Bharatiya Nyaya Sanhita, which addresses organized crime. The court acknowledged concerns about lacking safeguards compared to existing laws. Justice Kant emphasized the need for effective legislation and judicial monitoring to prevent misuse while addressing the complexities of crime deterrence and law reform.
New Delhi: The Supreme Court on Friday (Nov 22nd) raised an essential query about the effectiveness of India’s new criminal laws, asking whether these laws should be given a chance to demonstrate their ability to combat crime effectively. This remark was made by a Bench comprising Justices Surya Kant and Ujjal Bhuyan during a hearing on a challenge to Section 111 of the Bharatiya Nyaya Sanhita (BNS), which criminalizes organized crime under general criminal law.
“This is an all-India law; should it not be given one chance to see if it is a good tool to contain crime and curb the same?”
Justice Kant remarked while hearing a petition filed by retired BSF Commandant Azad Singh Kataria challenging the constitutionality of various provisions of the BNS and the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Key Concerns Raised
Senior Advocate Menaka Guruswamy, representing Kataria, argued that Section 111 lacks safeguards present in special laws like the Maharashtra Control of Organised Crime Act (MCOCA) and the Unlawful Activities (Prevention) Act (UAPA). She emphasized that treating minor offenses like pickpocketing as organized crime under such broad definitions undermines the rule of law.
Justice Kant, however, countered, questioning whether central laws must necessarily provide safeguards similar to state laws.
“Is it the legislative obligation when state law provides a safeguard, the central law must also do the same?”
he asked.
The Court further observed that judicial monitoring will continue to ensure that provisions of both old and new laws are not misused. Justice Kant noted, “Even if safeguards were there, misuse will be there… so judicial monitoring will go on.”
Safeguards vs. Crime Deterrence
Guruswamy cautioned against over-broad definitions of organized crime, asserting that “stringent criminal law will not act as a deterrent to curb crime.” In response, Justice Kant noted that an effective law, with a strong deterrent effect, could curb violations. “Unless there is an effective law, it will not impact… toothless tiger will not help,” he said, comparing India’s approach with the United States, where strong enforcement fosters compliance.
Guruswamy highlighted the stark contrast in conviction rates: while the US sees an 82% conviction rate in white-collar crimes, India struggles with a meager 3%.
Provisions Under Challenge
Kataria’s plea challenged several provisions, including:
- Sections 111 and 113 of the BNS, which introduce “organized crime” and “terrorist act” without necessary procedural safeguards.
- Section 152, which reintroduces sedition in vague terms.
- Section 173(3), allowing police excessive discretion in registering complaints.
- Section 187(3), which removes the 15-day limit on police custody.
- Section 223, creating distinctions between FIR-based and complaint-based cases.
The Way Forward
The Court has directed Kataria’s counsel to present a comparative chart of the additions and deletions in the new criminal laws. The matter is set for the next hearing on December 2.
Advocates Lavkesh Bhambhani, Utkarsh Pratap, Arunima Das, Aditi Tripathi, and Tushar Jain assisted Guruswamy in representing Kataria.
The debate over balancing stringent laws with constitutional safeguards underscores the complexity of criminal law reform in India. As Justice Kant aptly noted, “We must think in the larger interest of society to curb organized crime.”
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