New Delhi: Beginning today, a historic page turns, the country officially gets its three new criminal laws – Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam -- replacing over a century old colonial-era laws, which framed citizen-state compact. The three new criminal laws will replace the British-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act.
As the new laws roll out, it is expected that it would infuse some degree of uncertainty and more issues would prop up when lawyers’ argue cases before various courts across the country. However, legal experts’ opinion is divided on whether the needle has moved decisively forward in relation with the reformed codes, and would the path to justice be eased for the citizens’, for whom while justice is often said to be administered, it is also a feeling.
On reformed codes presenting a challenge for the lawyers, senior advocate Rakesh Dwivedi said: “I don't think lawyers are incapable of meeting any challenge arising from enforcement of new criminal laws. Last several decades we have been facing new laws in diverse fields. In 1950 the Constitution itself was new. IBC was new. New Land Acquisition Act was there. So, no problem".
"Moreover, fundamental principles of criminal law are there to guide. Courts are also well-equipped to handle new issues. And nowadays, translations are faster. Southern states are conversant with English, and favour its usage. Personally, I welcome the new laws”, Dwivedi said.
Senior advocate Sanjay Hegde said that lawyers and judges will no doubt be equal to the challenge of studying the new laws and adjusting to the nomenclature. “The problems however will arise from the vague and overbroad language used in some of the provisions, which will lead to uncertainty. These problems will travel through the system and be resolved only after decades of litigation. Unsettling settled law, has consequences that are not immediately discernible but nevertheless persist to affect the future”, said Hegde.
On the aspect of challenges before lawyers regarding transition from the old IPC, CrPC, and evidence law, to the three new laws, senior advocate Sunil Fernandes said: “Undoubtedly I anticipate a lot of teething problems due to the hasty implementation of the three criminal laws, not only to lawyers but also to judges, police and the public”.
He stressed that there is hardly anything new in these three laws and approximately 90 percent of the so-called new laws are a regurgitation of the old laws, and only the sections are remembered, causing tremendous and unnecessary inconvenience to all stakeholders.
When queried that in some matter the needle has moved decisively forward, for example introducing community service, summary trial for petty offences etc., Fernandes said: “You don’t need to scrap all the criminal laws and bring in the new laws in order to introduce measures such as community service etc., they could have been introduced by way of amendments in the existing statutes. The laws settled by the Supreme Court through its judgments for all these decades will be rendered ineffective due to these new laws”.
Senior Advocate Balbir Singh said the new criminal laws implemented from July 1, for the time being, would be a challenge for the lawyers as well as the courts of the country and most importantly the police and the implementation of new laws has presently created two parallel criminal justice systems in the country.
“However, broadly the principle of criminal law remains intact in the new laws and introduction of certain new provisions will lead to expeditious disposal of certain petty offences. Our country has earlier also seen the transition from old Companies Act, 1956 to new Companies Act, 2013; MRTP Act 1969 to Competition Act, 2002 etc., so in my opinion it may take some time before all stakeholders get equipped to deal with this change”, said Singh.
Niharika Karanjawala, Principal Associate, Karanjawala & Co, said: “With the rollout of such a major overhaul of the statutes, logistical hurdles are inevitable and will have to be dealt with efficiently and expeditiously to avoid problems in implementation. The translation into regional languages is one such hurdle”. She stressed that it is likely, however, that state governments have taken steps to ensure that true and accurate translations of the new statutes have been made and will be easily available and a failure to do so would certainly be a hurdle to implementation of the new laws.
“As the new laws represent a significant overhaul of the criminal laws and system, there will inevitably be an adjustment period for both lawyers and litigants. One of the first hurdles that will need to be overcome, however, is that of implementation by first responders such as the police and other investigation agencies…As the new laws are repeatedly brought before the courts over the next few years, there will likely be a process of interpretation, through which the implementation and effect of the laws will be refined and applied. This by its very nature is a lengthy process”, said Karanjawala.
Senior advocate and additional advocate general (AAG) of Tamil Nadu Amit Anand Tiwari said since the substantive text of the new penal code remains largely the same, the biggest challenge to the lawyers would be familiarizing themselves with the new sections and new numbers and tracing precedent.
He stressed that the "vague and overbroad" nature of the newly introduced provisions in the new laws will cause uncertainty regarding their application, and render them vulnerable to abuse by the authorities.
“There are substantial changes in the procedural law, how to apply them to the cases already at various stages is unclear. For the offences committed before the 1st of July, the substantive law governing them would continue to be the IPC, but the procedure applicable to them would be that prescribed in the new criminal laws. This will lead to immense confusion," Tiwari said
“Delay in officially translating the Acts to regional languages will exclude a large part of our population from understanding the provisions of the new criminal laws and effectively participating in the criminal justice system. It is also likely to lead to delay in disposal of cases in those lower courts where proceedings are conducted in regional language”, he added.
According to the government, extensive preparations, including training programmes and technological upgrades, have been undertaken to ensure smooth implementation of these new criminal laws across the country. Though the new laws have been widely hailed as a much-required update to the colonial-era legislations, the opposition has cited several loopholes.
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