PIL In Supreme Court Seeks Expert Committee To Assess New Criminal Laws, Says They Create Confusion & Increase Burden Of Lawyers

In addition, the petition filed by AOR Kunwar Sidharth has also prayed to the Court for a stay on the operation and implementation of three new criminal laws.

The laws, viz. Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Sanhita are set to replace the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, respectively, with effect from July 1, 2024.

At the outset, the petitioners Anjale Patel and Chhaya Mishra have argued that the titles of the current laws are not accurate. The petition stated that as per the interpretation of Statutes, the titles of these proposed bills do not clearly reflect the statutes and their motive. Instead, the current names of the Acts are ambiguous.

Apart from this, the petitioners contended that there were discrepancies in the Acts.

Regarding BNS, it is stated that it retains most offences from the IPC. Further, BNS defines petty organised crime as an offence. This includes vehicle theft, pickpocketing, selling public examination question papers, and other forms of organized crimes committed by gangs. To be considered as such, these crimes must (i) cause a general feeling of insecurity among citizens and (ii) be committed by organized criminal groups or gangs, including mobile organised crime groups.

However, the term "general feelings of insecurity" is not clearly defined. Additionally, the Bharatiya Nyaya Sanhita does not define terms such as 'gang,' 'anchor points,' and 'mobile organized crime groups.'

Stressing on one of the major issues in the BNSS, it argued that the same allows up to 15 days of police custody, which can be authorized in parts during the initial 40 or 60 days of the 60 or 90-day period of judicial custody. This provision may lead to the denial of bail for the entire period if the police have not exhausted the 15 days of custody.

The petition cited the recent Supreme Court case of V. Senthil Balaji v.State, in which the Court referred the question to a larger bench. The issue under consideration is "whether the 15-day period of police custody should be confined to the first 15 days of remand or extend over the entire period of investigation—60 or 90 days, as applicable."

“The Bill amends the provisions related to detention, police custody and use of handcuffs, which will present issues.”

The petitioners stated that the Bills were passed without any proper parliamentary debate as most MPs were under suspension. Thus, such action has led to no debate on the elements of the Bills with no challenges. Notably, when the relevant Bills were passed in Lok Sabha on December 20, 141 opposition MPs (from both houses) stood suspended.

The petition also raised attention to an occasion when former Chief Justice of India NV Ramana had raised a concern in 2021 regarding the enactment of laws without proper Parliamentary debates.

“Parliamentary debate is a fundamental part of democratic lawmaking. In parliament, members' debate bills before they vote on them. Because debates are public, they provide Members of Parliament (MPs) an opportunity to represent the views of constituents on the floor and give voice to voters' concerns.”

Lastly, raising its concerns regarding BSA, it said that while it provides for the admissibility of electronic records, it lacks safeguards to prevent tampering and contamination of these records during the investigation process.

“Major issues with Bharatiya Sakshya Adhiniyam, 2023 are that The Supreme Court has recognised that electronic records may be tampered with… Currently, electronic records must be authenticated by a certificate to be admissible as documents. The Bharatiya Sakshya Adhiniyam, 2023 retains these provisions for admissibility. The Bharatiya Sakshya Adhiniyam, 2023 also classifies electronic evidence as documents (which may not need certification).”

Potential Impact on lawyers

It added that the introduction of new criminal bills can potentially impact lawyers in various ways, posing a range of challenges.

Increased Workload: New criminal bills may lead to a surge in legal cases, thereby increasing the workload for lawyers. This can lead to stretched resources and potential challenges in providing timely and effective legal representation.

Complexity and Ambiguity: The introduction of new criminal bills may bring about complex legal provisions, ambiguous language, or intricate procedural requirements. Lawyers may face challenges in interpreting and navigating these complexities, potentially leading to delays and legal uncertainties.

Continuing Legal Education: Lawyers may need to invest additional time and resources to stay abreast of the new criminal laws, necessitating continuing legal education and training to ensure competence in handling cases under the new legal framework.

Impact on Legal Practice: The introduction of new criminal bills may necessitate adjustments in legal practice, requiring lawyers to adapt their strategies, case preparations, and advocacy techniques to align with the evolving legal landscape.

Increased Legal Scrutiny: Lawyers representing clients in criminal cases may face heightened scrutiny and accountability under the new bills, potentially facing challenges related to ethical considerations, client confidentiality, and adherence to the revised legal standards.

Resource Constraints: Small and mid-sized law firms, as well as individual practitioners, may face resource constraints in terms of updating legal libraries, accessing updated case law references, and acquiring the necessary resources to effectively represent clients under the new criminal bills.

Procedural Changes and Court Practices: New criminal bills may necessitate changes in court procedures, filing requirements, and evidentiary standards, potentially requiring lawyers to adapt to revised court practices and rules of evidence.

Potential for Legal Advocacy Restrictions: Lawyers' ability to engage in vigorous advocacy on behalf of their clients may face restrictions or limitations under certain provisions of new criminal bills, impacting their ability to provide robust legal representation. The introduction of new criminal bills may impact access to legal aid and pro bono services, potentially leading to challenges in offering comprehensive legal assistance to marginalized and underserved populations. 

Moreover, the new criminal bills do not introduce substantial changes from the previous ones, creating confusion among citizens and granting more power to the police, potentially suppressing fundamental rights. Despite the intent to decolonize Indian laws, these bills largely repeat existing laws without new explanations, instead adding powers that may instill fear and undermine citizens' rights.

The prayers, as given in the petition, are as follows:

“a. Please Issue Notice A Writ Of Mandamus Or Any Other Appropriate Writs Seeking Issuance Of Specific Directions, Policies And Regulations Initiate Guidelines And Directions To Immediately Constitute An Expert Committee On This To Assess, Identify The Viability Of The Three New Amended Criminal Laws Names As “ The Bharatiya Nyaya Sanhita, 2023”, “The Bharatiya Nagrik Suraksha Sanhita, 2023” And “The Bharatiya Sakshya Adhiniyam, 2023” With The Aim To Overhaul The Criminal Laws Of The Country And Abolish, Indian Penal Code 1860, Code Of Criminal Procedure And Indian Evidence Act, 1872)

b. Issue writ of mandamus/directions in the interest of justice to Stay the Operation and Implementation of Three new Criminal laws being Bharatiya Nyaya Sanhita 2023, Bharatiya Nagrik Suraksha Sanhita 2023 and Bharatiya SakshyaAdhiniyam 2023.”

It may also be mentioned that earlier, the Court had refused to entertain PIL challenging the new criminal laws saying that the laws were not in force. On May 19, the Supreme Court dismissed another PIL challenging the new criminal laws, saying that the petition was drafted in a casual manner.

Case Details: Anjale Patel and another v. Union of India