Representative image of handcuff and gavel
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The criminal justice system in the country has taken a fresh course with the introduction of a new regime of criminal laws. The ruling establishment recently brought in a trinity of criminal laws i.e. the Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code, 1860 (IPC); the Bharatiya Sakshya (BS), which replaced the Indian Evidence Act, 1872; and the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC). The new regime, to a considerable extent, alters the way criminal justice is administered in the country. However, the real challenge lies in ensuring effective and efficient countrywide implementation of the laws.
In triggering the criminal justice machinery, there are four key players apart from the accused and the victim/complainant i.e. the investigator, the prosecutor, the defence lawyer and the judge. The real challenge begins from the inception point of reporting a crime. When a crime is reported through a complaint or a First Information Report (FIR), the complainant/informant has to give facts of the incident and mention the law which has been violated to constitute a crime. With amended definitions and changes in the section numbers of almost all the crimes, general public at large will require some education on how to report a crime. The second level of awareness and sensitisation will be required at the level of investigators who will have to satisfy the rigours of the new laws to detect the crime and the criminal and conclude their investigation. The investigators will have to collect evidence and structure their Police Report in a manner which fulfills the requirements of the new laws and submit the same to the concerned magistrate. It is only thereafter that there will be application of a judicially trained mind of a judge for the first time who will have to decide upon taking cognizance and summoning the accused to face trial. The role of prosecutors and defence lawyers will also kick in to assist the courts in taking the complaint so lodged to its logical conclusion as per the procedure laid down in the new laws.
There will be other challenges such as application of these laws to continuous causes of action, no retrospective application of laws, interpretation of certain provisions, filing of supplementary chargesheets, impact on on-going trials, amendments in various schedules of other legislations such as PMLA, NIA Act, etc. For example – If a crime was commenced on a date when IPC is in place and goes on after notification of BNS, both the complainant and the investigators will have to be instructed as to which among BNS or IPC will be used to check if the incident is a crime and if yes, what is the sentence prescribed as it will affect the provisions of bail, etc. Similarly, let's take the example of the much-debated Section 106(2) of BNS which deals with hit and run cases punishable up to 10 years. This section uses loose expressions such as ‘escape’, ‘soon after the incident’ and ‘report to police officer or magistrate’. These expressions are open to interpretation and need a fine tuning otherwise they are susceptible to abuse.
To spread awareness about the new laws, the ruling establishment should venture out in phases instead of a countrywide application. A few Sessions division may be chosen as pilot areas to launch the laws from a given date. Designated trainers should be selected, and training should be imparted both through online and offline modes. There has to be a Training of Trainers (TOT) before that. Awareness modules should be created and shared by the government. Time to time clarifications and advisories will have to be issued. An interoperable coordination committee deserves to be created to coordinate between different investigating agencies including state police, CBI, SFIO, NIA, ED, Financial Intelligence Units, cyber cells, etc., crime recording agencies such as NCRB and agencies such as Crime and Criminal Tracking Network and System (CCTNS). Awareness through social media, radio and other mediums of telecommunications deserves to be done.
A Public Interest Litigation (PIL) has been preferred before the Supreme Court challenging the viability of the much-debated new laws and inter alia seeking a stay on the implementation of said laws. The Supreme Court is yet to hear and adjudicate upon the PIL, however, the same would not hinder or delay the operation and effective implementation of the new regime of criminal laws implemented by the ruling establishment to overhaul the criminal justice system in India and the criticism it faced over the period of time.
Notifying the new trinity of criminal laws is not an end but only the beginning of a new dawn in our criminal justice administration and the real challenge lies in ensuring that it is implemented to ensure what it stands for – Nyaya (justice) and Nagarik Suraksha (Citizen security). Hoping it will be done, fingers crossed!
(Author is an Advocate on Record, Supreme Court of India)