Time For Delhi High Court To Have 'Human Rights Division' To Implement New Criminal Laws: Justice Anup Jairam Bhambhani

Justice Anup Jairam Bhambhani on Thursday said that it is time for the Delhi High Court to have a separate “Human Rights Division” to implement the new criminal laws and to redress grievances of human rights violation cases.

The new criminal laws - Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam- will come into effect from July 01, 2024.

“With the expanding interest in criminal justice reform, as is reflected by the enactment of the new sanhitas, there is also need in our own institution in the Delhi High Court to go beyond the commercial. If I may say so with utmost respect, beyond the rich man's jurisdictions, beyond having a commercial division and an intellectual property division, all of which are doing stellar work and are welcome but perhaps it is also time for the Delhi High Court to lead the way, by now having a Human Rights Division, both to implement new sanhitas, and also to redress grievances of other human rights violations which come our way through habeas corpus petitions, child rights matters, matters relating to mass encroachments, matters relating to refugees and other similar cases involving personal liberty and freedom,” Justice Bhambhani said.

“I would commend this suggestion of creating a new human rights division in the Delhi High Court for the consideration of our Acting Chief Justice and other senior judges of the High Court,” he added.

The judge was speaking at the “Law and Practice Trio” book launch of the three new legislations authored by Taxmann's editorial board.

The event was held in Delhi High Court's auditorium in the presence of Justice Bhambhani and Justice Suresh Kumar Kait.

Justice Bhambhani said that even though some people are lauding the new criminal laws while some are criticizing them, bringing legislation is the exclusive domain of the Parliament and the judiciary, as the other pillars of democracy, are under bounden duty to interpret and implement the new laws.

“Now the stated objective is of course to bring comprehensive reform in our criminal justice system. The idea is to modernize, streamline, and adapt the framework to contemporary standards. The intention is to bring more justice and fairness in the scheme of things all of which I must say, are very, very laudable motives,” he said.

However, the judge highlighted some of the deficiencies in the criminal justice system and discussed if the problems are addressed by the new laws.

Calling it a laudable addition, Justice Bhambhani said that the new section 173(2) entitles the victim to a copy of the FIR. He also referred to section 193(3)(ii) which requires that a victim be informed and kept informed about the progress of investigation.

“Again a very, very big improvement because as I said earlier, the victim had virtually no role to play. Once he or she had been victimized,” he said.

Justice Bhambhani also said that the second proviso of section 360 provides that the court cannot allow withdrawal from prosecution without hearing the victim.

“I think a very commendable provision because withdrawal from prosecution at one stage was the prerogative and the decision of the prosecutor. And again the victim was never asked what he or she felt about the withdrawal,” he said.

Justice Bhambhani also said that under the new criminal laws, every State government is to mandatorily have a witness protection scheme but how it pans out remains to be seen.

He also said that Section 173(3) permits all legal proceedings to be conducted electronically but bow far that will be possible in a VC cross examination remains to be seen.

On sentencing guidelines, the judge said that on a first blush reading, there appears to be nothing, either in the nyay sanhita or nagrik suraksha sanhita, except that for petty offences, a new punishment by way of community service has been statutorily inserted.

“Now, this, again, is a very laudable move. And in my view, in fact, community service should serve as punishment for several offenses, which are perhaps punishable with up to three years or less than three years of punishment because it provides a more useful manner of punishing the guilty, than just to fine or to confine,” he said.

Furthermore, Justice Bhambhani said that we would will all be responsible for improving the criminal justice system and that it is on lawmakers, lawyers and most importantly, the judges, on how they interpret the new provisions to keep up with the times while at the same time maintaining the essence and the purpose of the new legislation.

“The seed of what has been recodified in these sanhitas were even there in the existing criminal laws. However, experience has it that the seed never really germinated to bear fruit. The seed has now been replanted by Parliament. We must respect that and let us see how it grows,” he said.

Also speaking at the event was Justice Kait who said that the new criminal laws would bring in change related to the protection of witnesses and victims, including the introduction of witness protection scheme.

“Streamline procedures under the Bharatiya Nagrik Suraksha Sanhita may expedite investigations and trial. Faster justice delivery could discourage criminals and enhance public trust in the legal system,” he said.

Justice Kait also said that the new laws demonstrate a commitment to provide enhanced protection for marginalised and vulnerable segment of society and underscore India's commitment to reform its legal framework in the present era.

These reforms are a significant step towards modernising India's criminal justice system and addressing the challenges of today's society, the judge said.

Other guests in the event were ASG Chetan Sharma, Senior Advocate Mohit Mathur (President of Delhi High Court Bar Association), Dr. Adish C Aggarwala (President of Supreme Court Bar Association) and Dr. Reeta Vasishta (Member Secretary, Law Commission of India).

The books have been authored by Advocate Saurabh Kansal, Prof. (Dr.) Vageshwari Deswal and Dr. Shruti Goyal.