Representative image of handcuff and gavel
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Lawyers in Bengaluru feel the move to bring in three new criminal laws was unnecessary. Police reforms and amendments to existing laws could have plugged gaps in our justice delivery system, many opine.
On December 25, President Draupadi Murmu gave her assent to three new criminal code bills. Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Act (BSA) have respectively replaced the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act of 1872. The transition aims to decolonise the justice system (references to the British monarchy have been omitted), focus on crimes against citizens, revise terms and conditions of punishment, and include provisions for electronic and digital evidence and offences like mob lynching (see box).
The bills were passed amid suspension of opposition MPs and criticised by some for restricting personal liberty and furthering police excesses and custodial persecution. Vishal Tiwari, an advocate in the Supreme Court, has filed a PIL to stay the new laws.
‘Reform police’
Advocate Guru Prasanna, who practices criminal and commercial law, says, “There was no need to replace the old laws entirely. Amendments could have been made.” Moreover, he feels the new laws, no matter how good, will not yield timely justice until police machinery is reformed. “Our police are severely under-equipped, in terms of staff, training, and arms,” he reasons.
Criminal lawyer Saddam Baig also bats for overhauling the police force. “In courts, we argue our cases based on laws as well as chargesheets filed by the police. If the police conduct proper investigation, it will improve the conviction rate.”
‘Old wine in new bottle’
Criminal law advocate Indra Dhanush dubs it a case of “old wine in a new bottle” — Indian names have been given to the new laws and some sections have been redistributed. “Issues of dire importance like justice and compensation for those charged with fake cases or providing more powers to magistrates and sessions judges have been ignored,” he says.
Sagar G Nahar believes the revamp of CrPC was uncalled for. “It is not even a colonial-era law. It was enacted in 1973, after four law commission reports and deliberations for 13 years,” explains the criminal law advocate.
‘Threatens civil liberties’
These advocates feel the new laws are not entirely pro-public. The BNS has removed sedition and replaced it with treason, which, Indra fears, will give more control to the state and police.
He rues that the provision of keeping a person in police custody for 15 days to a maximum of 90 days now under the BNSS is not in line with individual liberties enshrined under the Constitution. This is worrisome because “the new laws restrict the right of bail”, Sagar pitches in.
Sagar is also concerned about the unbridled power being vested in the police to conduct a preliminary investigation before filing an FIR, which is against SC’s directive.
“But now, in certain offences, police can conduct prior investigations. Why? Maybe in a bid to avoid false FIRs. Now police will get to decide prima facie what is an offence, what is not,” he explains.
Operational hurdle
The new laws may likely be notified before Republic Day. Saddam foresees operational hurdles. “There is no clarity if we need to fight our pending cases under the old laws or new laws. We spend five years in college learning these laws and now we are supposed to unlearn them,” he says.
‘Zero FIR welcome’
Criminal lawyer Siji Malayil feels teething troubles are a given during any transition. He lauds the new laws. “Now you can file an FIR at any police station irrespective of jurisdiction (called Zero FIR). There is also an option for e-FIR,” he says.
Even Sagar welcomes the introduction of electronic communication for legal procedures and “the exception to rape permitting sex with one’s wife over the age of 15, which has been amended to 18 years now.”