Madras High Court Questions Need To Bring 'New Criminal Laws', Says Govt Could Have Amended IPC, CrPC & Evidence Act To Bring Changes
Upasana Sajeev
19 July 2024 6:13 AM GMT
The Madras High Court today wondered what prompted the Central government to repeal the erstwhile criminal laws of IPC, CrPC and the Evidence Act when any proposed changes could have been incorporated by way of amendments to those Acts.
While hearing three PILs filed by DMK organising secretary RS Bharathi challenging the constitutional validity of the BNS, BNSS and BSA, a division bench headed by Justice SS Sundar orally remarked,
"Why did you want to change everything? Was it to confuse the people? You could have made small amendments"
The bench also comprising Justice N Senthilkumar recollected that when the CPC was amended, there was a huge cry and many judgements were passed giving interpretation of the law. It thus apprehended that the new laws will bring confusion and will require interpretations, in effect causing more delays in the justice delivery system. "Here, the object of amendments may have been good. But the court is concerned with the delay that may be caused by the new law."
Justice Sundar also expressed dissatisfaction with the government for not "considering" the Law Commission's opinion while introducing the new laws. He said,
"When procedure comes, citizen's expect minimum protection. At least the law commission should be considered. Here opinions were sought but not considered...normally, in principle atleast, even before touching a law for amendment, the legislature will refer the matter to the law commission who will look into the matter. They are there for that."
On Friday, Senior Counsel NR Elango appearing for the petitioner argued that the new laws had brought in more difficulty in obtaining a certificate for admissibility of electronic evidence. He pointed out that the new law required the certificate to be issued by an expert. He added that under the new laws, an examiner of electronic evidence could be called an expert only if the department, body or agency he belongs to, is notified by the Central Government. He added that there were very few laboratories notified under the Information Technology Act, of 2000 and in cases where no notified electronic evidence examiner was available in the state, no case involving electronic evidence could be proved in court.
Elango thus argued that obtaining a certificate of an expert would cause extraordinary delay under the new laws and would be against Article 21 of the country
In his plea, Bharathi submitted that the new laws are a concerted design to weaponize the law by criminalizing democratic and peaceful acts of expressing dissent and opposition to state policies. It adds that the new laws systematically dismantle the most fundamental principles of criminal jurisprudence, such as the right to a free and fair trial, and centralize the powers of the police by ensuring the immunity of the police and the state officials.
He added that the new criminal laws are overly oppressive, fanciful, and manifestly arbitrary as they violate the substantive due process requirement of the constitution and fail to draw a balance between the objects sought to be achieved and the fundamental rights of the citizens.
Bharathi submitted that the Parliament introduced and passed the new laws without any meaningful discussion. He thus added that the laws went against the legitimate expectation of the citizens that laws touching upon their everyday life as victims or accused would be passed with an open mind and after an elaborate discussion.
It was also submitted that the new laws do not bring in any substantial changes but merely shuffle the existing sections which was unnecessary and would cause great inconvenience and confusion to the people regarding its interpretation. He added that shuffling the sections would make it very difficult for the Judges, Advocates, law enforcement agencies, and the public to correlate the new provisions with the old provisions to search for precedents.
It was further argued that the new criminal laws were only an attempt to “Sanskritise” the titles of the Act without any devotion to revisit the laws. He thus pointed out that the new laws could not be claimed to be an act of the parliament as it was an act of merely a limb of the parliament – the ruling party and its alliances, in the absence of the other limb, ie, the opposition parties.
Noting that the matter required consideration, the court asked the Centre to file counter within 4 weeks. The court has also tagged the petition along with other pleas challenging the new criminal laws.
Case Title: RS Bharathi v Union of India and Another
Case No: WP 20193 of 2024
