Teething Problems Bound To Occur But Robust Judicial System Will Meet All Challenges: Bombay HC Chief Justice On Enforcement Of New Criminal Laws

Chief Justice Devendra Kumar Upadhyaya of the Bombay High Court recently expressed confidence in the robustness of the judicial system to meet challenges in implementing the new criminal laws, which have come into force today.

“It is not only a challenge to the judiciary, but to the investigating agencies, to the public prosecutors, to the lawyers community, everyone. But I am confident that we have such a robust judicial system in place that we will be able to meet all the challenges. Though the teething troubles are bound to happen.”

Justice Upadhyaya was addressing a conference organized yesterday by the Ministry of Law and Justice, titled “India's Progressive Path in the Administration of Criminal Justice System” in Mumbai.

He said that the new criminal laws should be welcomed with a changed mindset. “We have to welcome them with a changed mindset to come out of our comfort zones so that its implementation can be ensured effectively and for the purpose for which they have been enacted.”

The Code of Criminal Procedure, 1973 has been replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS). The India Penal Code, 1860 and the Evidence Act, 1872 which were enacted during the British regime have been replaced by the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Sakshya Adhiniyam (BSA) respectively.

Justice Upadhyaya said that the nomenclature change from "Dand (punishment) Sanhita" to "Nyaya (justice) Sanhita" reflects a paradigm shift in thinking about the criminal justice system.

He outlined the role of the higher judiciary in the implementation of the new criminal laws.

“Apart from the district judiciary where most of the trials, a lot of interpretative process is bound to come. A lot of matters are going to come before us in the High Court where you have to interpret these new provisions. But keep in mind that the purpose for which these laws have been enacted should be the basis of interpretation or the interpretative tool to be applied by the high courts, once any such challenge comes before the high court.”

Justice Upadhyaya underscored the collective responsibility of all stakeholders, including judicial officers, law enforcement agencies, public prosecutors, and lawyers, in effectively implementing these changes.

He added that the judicial academies all over India are training judicial officers, public prosecutors, law enforcement officers, and lawyers to ensure a smooth transition.

He shared that the Maharashtra Judicial Academy has already trained two-thirds of judicial officers and certain public prosecutors and the Maharashtra Police is also developing online training modules about the new laws.

Justice Upadhyaya stressed the importance of proper training for police officers, as they are often the first point of contact of the public with the new laws. “If the police officer in charge of the police station registers an FIR, making a wrong mention of the provisions, then the FIR itself becomes susceptible to challenge”, he highlighted.

Justice Upadhyaya emphasized that law has always been evolving, reflecting societal needs and ethical dilemmas. Highlighting the role of a written constitution in embodying the aspirations of the masses, he noted that the judiciary, despite lacking the power of sword and purse, plays a formidable role in the administration of justice through judicial review and scrutiny of laws.

Justice Upadhyaya said that change in socio-economic conditions, technological advancements and applications of information technology led to the enactment of the new criminal laws. He said that these new laws aim to reduce litigation delays and enhance the use of information technology in the criminal justice system.

He said that the Bharatiya Nagarik Suraksha Sanhita introduces measures to expedite justice by prescribing time limits for procedural actions and mandating forensic science in serious investigations. He highlighted changes such as the introduction of preliminary investigations, zero FIR, and e-FIRs and emphasized the need for state machinery to augment its infrastructure.

The Bharatiya Sakshya Adhiniyam, or the new Evidence Act, recognizes electronic documents and digital records, providing a clear format for certification, Justice Upadhyaya noted. “It has now provided the format of certification, which should accompany the electronic record and has thus to great extent reduced the anxiety as to what should be the ideal form of certification.”

Regarding the Bharatiya Nyaya Sanhita, which replaces the IPC, Justice Upadhyaya highlighted the rearrangement of offences as per severity, wider gender neutrality, introduction of new offences such as mob lynching and organized crimes and deletion of provisions related to adultery and unnatural offences. The BNS includes provisions for community service as punishment, which he termed “one of the most welcome steps”.

Justice Upadhyaya urged all stakeholders to implement the new laws in their true spirit, aligning with the aspirations of the lawmakers. He recalled Dr BR Ambedkar's words from the Constituent Assembly debates, emphasizing that the success of any constitution or law depends on the quality of those administering it.