In a complete overhaul of India's criminal justice system, three new laws have come into effect on July 1. The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam have replaced the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act.
The government argues that the colonial-era laws have been replaced to do away with some draconian provisions, ensure speedier justice and address new-age crimes.
From introduction of community service as punishment for minor offences, prescribing timelines for speedy trials, mandatory videography of crime scenes, and inclusion of offences for child marital rape and mob-lynching, the new laws have many positives.
But, experts argue that the enacted criminal codes have major flaws.
Parallel criminal justice systems
Cases filed before the first of July will continue to be tried under the three old laws. This means, until all pending cases are concluded, two different sets of laws will run parallelly in courts and investigations. The National Judicial Data Grid lists over 83,000 criminal cases as pending, and clearing this backlog could take decades.
Additionally, there is confusion about which set of laws would apply to offences committed before the first of July, but registered after.
Since the law cannot retrospectively create offences or prescribe punishments, the IPC would apply to older crimes and not the BNS. But lawyers argue that new procedural and evidence laws can be applied when registering a fresh case. It would be up to the judge to decide which combination to apply to which case.
This would lead to additional delays as lawyers would first argue over criminal procedure, challenge lower court's decisions, and the actual trial would begin only after the Supreme Court settles the matter.
Expanded police custody
The CrPC allows a maximum of 15 days in police custody, after which the accused must be transferred to judicial custody. By omitting this clause, the BNSS allows the police to hold an accused for up to 90 days for all offences.
The new laws essentially removes safeguards put in place to ensure time-bound investigations and prevent custodial torture and forced confessions.
Immediate FIR not mandatory
Police officers are no longer required to file a First Information Report (FIR) as soon as the crime is reported. If the maximum punishment for the crime is 3-7 years, the police can take up to 14 days to complete a preliminarily inquiry before registering the FIR.
In addition to white-collar crimes, certain offences under assault, rioting, trafficking, acid attack and terrorism are prescribed less that 7 years in prison. With no record of the complaint, the officer is free to delay action, indulge in extra-judicial mediation or settlement.
Back-door entry for sedition
The government claims to do away with the controversial sedition provision of the IPC. While the BNS has no mention of the term, it criminalises any act against the sovereignty and integrity of India, thereby giving a wider definition to the offence. In Hindi, the government has simply replaced rajdroh (rebellion against the king) with deshdroh (rebellion against the country).
Critics claim that a minor riot can now be escalated, and charges can be filed under terrorism. Dissenters can be branded anti-nationals under law, in a serious threat to freedom of speech and expression.
No gender justice
Failure to make sexual offences gender neutral in another gaping hole in the new criminal law. The BNS, like the IPC, only recongises sexual assault of women. The law still ignores abuse and violence faced by transgenders and other members of the LGBTQ+ community. It also leaves little recourse for male victims of rape.
The apex court read down section 377 of the IPC to decriminalise consensual sex among adults of any gender. However, the provision is still invoked in cases of sexual assault, where the victim is not a woman. This is no longer an option, with the BNS scrapping the provision entirely.
Linguistic imperialism?
Lastly, the laws written in Hindi and Sanskrit have created an uproar in non-Hindi speaking states, especially in the South. A PIL was filed in the Kerala High Court alleging linguistic imperialism, and seeking English titles to the provisions.
