Postpone Implementation Of New Criminal Laws : PUCL Writes To Law Ministers

The laws, viz. Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita(BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) 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.

The letter also underscores that even though the Law Minister recently stated that these laws were brought after extensive discussion, with many opposition MPs suspended, they have not undergone detailed discussion. Notably, when the relevant Bills were passed in the Lok Sabha on December 20, 141 opposition MPs (from both houses) were suspended.

It added that, as a result, a critical analysis of these laws, reflecting the experiences and views of practitioners such as criminal lawyers, law enforcement agencies, judicial officers, and ordinary citizens, did not take place.

“We are aware that in a conference on 'India's Progressive Path in the Administration of Criminal Justice System' in Kolkata on 16th June, 2024, you had stated that the new laws – the BNS, BNSS and BSA – had been brought about after extensive discussion, including with the judiciary, and that therefore there was no scope for postponement of the implementation of these laws meant to replace the colonial era, IPC, CrPC and Indian Evidence Act… Suffice it to say that in the backdrop of suspension of many MPs of the opposition parties and with very limited time for discussion, the type of discussions that these laws ought to have been subjected to, did not happen in December, 2023.”

The letter said that' heaven will not fall' if implementation is delayed. It also said that public discussions can still be organised at the national level, especially in the backdrop of a new parliamentary session with freshly elected Members of Parliament sworn in.

“We urge that the request for postponement of implementation and initiating national level public discussion culminating in discussion in Parliament, should not be seen through partisan lens or from a position of adversarial politics. What is at stake is not just the very future of criminal law administration in India; a much greater concern is the health of constitutional democracy.”

The letter stressed that a well-informed and analytical national discussion will only help strengthen democracy, the rule of law, and the Constitutional order.

It later also went on to highlight three critical issues for the Government to consider regarding the postponement and review of these laws:

Impact on Criminal Justice System: The new laws will affect the entire criminal justice delivery system in India, impacting 1.4 billion people and numerous key institutional players. It is crucial for a seamless transition from the old system to the new one to ensure clarity among all players about the laws, roles, rights, and procedures to prevent common citizens from suffering due to poorly formulated laws and unfair administration.

Transition Timeline:

• Election Schedule: On 16th February 2024, the Election Commission announced elections from 19th April to 1st June, with results on 4th June.
• Implementation Notification: On 23rd February 2024, a Gazette Notification stated the new laws would be effective from 1st July 2024.
• Election Workload: During the election period, police and administrative officials were occupied with election duties. Thus, this meant that they were not free to attend training programmes on the content, process and implementation of the new criminal laws.
• Training Period: From 4th June to 1st July, there were only 26 days for adequate training and preparation for the new legal regime.

Training Challenges: The Bureau of Police Research and Development has been creating training modules, but the timeframe has been too short. Training programs for police officials, ranging from 1 to 5 days, have been conducted, but this is inadequate to ensure comprehensive understanding and implementation of the new laws across all levels.

“The sheer size of our country and mammoth number of people involved across many levels from the junior most to the very experienced, makes it impossible for this process to be completed in the 26 days after election results were announced on 4th June, 2024 or even the 4 months after the Gazette notification about implementation of the new criminal laws issued on 23rd February, 2024.,” the letter said.

Referring to the fact that the Parliamentary Sub-Committee on Home Affairs has noted that much of the content in the new laws is a "cut-and-paste" from existing laws, the letter has raised a pertinent question “if the bulk of the content of the new laws (BNS, BNSS and BSA) are only a repetition of the old laws, wouldn't amendment to the old laws have been sufficient? What new advantage is gained by passing the new laws?"

Moreover, the letter also ensured to highlight several discrepancies with the laws. For example, the presence of unclear language in numerous places, which in turn raises concerns about the impact they will have when these provisions come into effect. Also, it said that without addressing the infrastructural needs of the criminal justice system, the mere provision of timelines for completing trial stages (in BNSS) would be, at best, cosmetic and, at worst, ignored with a sense of impunity.

Lastly, to bolster its findings, it also referred to the introduction of modern technology in court processes, such as electronic service of summons and warrants and how the same has cropped up some serious concerns. Concerns ranging from digital divide, online threats to how the new laws fail to address the protection of data integrity and rights related to electronic evidence, have been highlighted.

“It needs to be emphasised that the new laws with all their inherent shortcomings, problems, imprecise definitions and objectionable features will come into effect from 1st July 2024. It is under these circumstances that we urge the Government of India to postpone the implementation of the 3 new laws so as to give sufficient time for all the key institutions and stake-holders…”

“We urge that the government and all the political parties do not view this as a partisan issue or in an adversarial manner but approach this as a maker of national concern.,” the letter concludes.