'Damocles Sword Hanging On Nation' : Indira Jaising Requests Union Law Minister To Halt Implementation Of New Criminal Laws

Senior Advocate Ms Indira Jaising, in her recent letter to Mr Arjun Ram Meghwal, the Union Minister of Law and Justice has raised concerns about the implementation of the three new criminal laws - Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam which are scheduled to come into force from July 1. 

As per the senior advocate, the three criminal bills aimed at replacing the existing Indian Penal Code, 1860, the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 may pose multiple challenges such as the pendency of present cases under the existing laws, the question of how the new laws could be applied retrospectively and lack of infrastructural additions to equip the overburdened judiciary in dealing with the onset of the new laws. 

Jaising has requested the Union Ministry to delay the implementation of the new laws and open the floor for relevant stakeholders to debate and discuss their concerns with the proposed criminal laws. 

We, the people of India, have confidence that you will understand our concerns and address them promptly so that the Damocles sword hanging on us does not fall on the nation on July 1, 2024

Mounting Pendency Of Existing Cases & Balancing Two Parallel Criminal Justice Systems 

The letter flagged the data on pending criminal and civil cases before the judiciary, especially the Supreme Court. It may be noted that the Supreme Court itself has a total of 83,068 pending cases presently, of which 17,804 are criminal cases and 65,264 are civil. Since the existing criminal laws have been applied by the Indian Courts for over a century now, Jaising stressed that when the new criminal laws are effected, the existing laws will continue to apply for another 20 years or more until the pending cases reach their final saturation. 

As and when the new three criminal laws come into force, the existing laws will continue to apply perhaps for another 20 years or more until cases filed under them reach their fruition beginning with the Magistrate Court and ending with the Supreme Court of India. This we know as the average lifespan of a case in our country. 

Thus, with the coming of the new laws, the Indian Court will be tasked to deal with the cases from the pending batch as well as the fresh cases upon which the new provisions will be applicable, creating "two parallel criminal justice systems" for the next two to three decades. 

In effect, we will be having two parallel criminal justice systems for the foreseeable future, which can range from 20-30 years. 

Additionally, Jaising highlighted the absence of any judicial audit by the Union on the impact of implementing the new criminal laws on the existing work pressure of the judiciary. The Union Ministry has been requested by her to make available any such study within public domain. 

I am not aware if the Government of India has conducted any study on the impact of new criminal laws on the backlog of cases. If there is any, the same is not available in the public domain. It is requested that the same may kindly be made available to me. 

The Dilemma Of Retrospective Application & Lack Of Efforts To Upgrade The Administration 

A key challenge raised by the senior advocate was the lack of efforts on the part of the Centre to better equip the judiciary at all levels in terms of infrastructure and training when dealing with the "vexed constitutional issue of retrospective application of the new laws and speedy access to justice".

While it is a settled principle of law that any substantial criminal law newly in force cannot be applied retrospectively, the same is not a straight jacket rule for procedural law and is subject to facts in each case. Jaising expressed that such a dilemma will occur in every case with the advent of the new laws in force. This, she opined was a separate concern apart from the possible challenge to the validity of several provisions from the set of new legislation. 

We as lawyers are aware that substantive criminal law cannot be applied retrospectively whereas the procedural law may apply to a pending case depending on whether or not prejudice will be caused to the accused. In every single pending case, the question will arise of which law will apply in a particular case. This is quite apart from the question of challenge to the constitutionality of several provisions of the three new criminal laws, which is looming large in people's minds. I am, however, making no comments on this aspect because these are questions for the judiciary to decide  

It may be noted that earlier on several occasions, the new criminal laws have been challenged before the Supreme Court.  The petitions had been dismissed as the Court observed that the laws had not come into force yet. 

Need For Opinion From All Relevant Stakeholders; Jaising Requests To Delay Implementation  

Stressing the multiple challenges and concerns over the subject, Jaising has made an "earnest request"  to delay the implementation of the new criminal laws till the time all the relevant stakeholders including the Judiciary at all levels, investigative agencies, state governments, Unions and citizenry get an adequate opportunity to deliberate and discuss difference aspects of the new laws proposed.  

Click here to read the letter