The three criminal laws, Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BNA) (Criminal Laws), set to replace the existing Indian Penal Code, 1860; Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, respectively, are due to come into force on July 1, 2024.

The criminal laws were introduced in the monsoon session of the Parliament on August 11, 2023 in Lok Sabha by Union home minister, Amit Shah, to overhaul “colonial-era laws”.

Ever since the laws were passed, they have received criticism from all walks of life including from legislators, members of opposition, civil society, journalists and non-governmental organisations, and most notably from the legal community.

The Leaflet has extensively covered the concerns over the provisions of the three criminal laws here, here, and here.

Some of the major concerns over the implementation of criminal laws are:

Lack of Scrutiny

In 2020, the Union ministry of home affairs established a criminal reform committee led by Professor Ranbir Singh, the former vice chancellor of the National Law University, Delhi to undertake a comprehensive review of the existing laws.

The government sought suggestions and recommendations on “comprehensive amendments to criminal laws” from governors, chief ministers of states and Union territories, high courts and the Supreme Court, Bar councils and law universities, and members of the Parliament. The process of seeking suggestions began in September 2019. Simultaneously, the criminal reform committee also invited suggestions and recommendations, including from the general public.

However, a draft was not made public. The criminal laws were referred to the Parliamentary Standing Committee on Home Affairs on August 24, 2023, which suggested revisions and recommendations with at least three dissenting notes mainly concerning the text of the BNS and BNSS. The committee held only 12 sittings to deliberate upon the laws, which drew criticism from the members of opposition within the committee as they demanded more time for extensive scrutiny.

The committee presented the draft report on the criminal laws on November 19, 2023 as Report No. 246 on the BNS, Report No. 247 on the BNSS and Report No. 248 on the BNA. It accepted the criminal laws. However, many of the recommendations of the committee were not paid heed to.

For instance, in January 2024, truck, bus and fuel tanker drivers across India called for a strike against Clause 104(2) of the BNS I which prescribes a ten-year prison term and a fine to those who cause the “death of any person by rash and negligent driving of vehicle not amounting to culpable homicide and escapes without reporting it to a police officer or a magistrate soon after the incident”.

The committee, in its report no. 246 on the BNS, had recommended redrafting of this clause. It suggested that the drafting of the provision is not clear because it does not indicate whether the duties of not escaping from the scene of the incident and reporting the incident both need to be fulfilled.

It was also suggested that Clause 104(2) violates Article 20(3) of the Indian Constitution which says “no person accused of an offence shall be compelled to be a witness against himself”.

As a consequence of the nationwide strike which also resulted in violence, Union home secretary Ajay Kumar Bhalla assured the protestors that the government would implement the law only after holding consultation with representatives of the All India Motor Transport Congress.

However, Clause 104(2) was retained as it is in Clause 106(2) of BNS II (final draft).

The Pre-Legislative Consultation Policy, 2014 prescribes that the draft legislation or its key points in a brief note should be published in the public domain for a minimum period of thirty days before it is introduced in the Parliament.

The dissenting note of the committee specifically remarks that the draft law for pre-consultation must be accompanied by a justification for its enactment, financial implications and the estimation of the laws’ impact.

It should be noted that the policy requires that the comments received through the pre-consultation must be published on the website of the nodal ministry. However, the whole process from instituting a committee to drafting the laws was not made accessible to the public until it was introduced in the Parliament.

The Chief Minister of West Bengal, Mamata Banerjee has called out the “authoritarian” manner in which the criminal laws were passed in the winter session of the Parliament amidst the opposition’s protest over the suspension of 146 legislators from both Houses.

In a letter written to the Prime Minister of India Narendra Modi on June 20, Banerjee stated that implementing the criminal laws will carry ethical and practical concerns. The ethical concerns are over the wide-ranging reservations expressed in the public domain regarding the hurriedly passed new laws.

She remarked that the laws were passed in a “dark hour of democracy”.

Mamata wrote: “A fresh parliamentary review of these attempts would demonstrate a commitment to democratic principles and foster greater transparency and accountability in the legislative process.”

On June 23, the oldest and the largest human rights organisation in India People’s Union for Civil Liberties (PUCL) issued an open letter seeking postponement of the implementation of the criminal laws, warning that “heaven will not fall” if the implementation is delayed.

PUCL has stated that the transition from the old criminal justice system to the new one involves a staggering number of key institutional players— ranging from policemen and prosecutors to government officials to judges and court officials, forensic science specialists, doctors, lawyers, media personnel and finally the citizens of India.

However, these stakeholders have been practically given only 26 days to ensure adequate training of all the key institutional players and prepare for the new criminal justice system to be implemented on July 1, PUCL remarked.

It stated that the dates for the 18th Lok Sabha elections were announced by the Election Commission of India on February 16, 2024. A gazette notification for the implementation of the three laws was announced on February 23, 2024.

PUCL notes that since the key institutional players of the criminal justice system were busy managing the smooth conduction of the elections, they did not get adequate time for the desired training required for the implementation of the criminal laws.

It remarks: “In effect, it is only after June 4, 2024, that across India, in all states and Union territories, officials in the police, courts and administration are rushing to learn the intricacies, procedural and jurisprudential content of the new laws and be ready to make the transition and shift to the new legal regime.”

PUCL has also reiterated that a majority of the provisions in the new laws remain unchanged. The same issue was raised in the dissenting note of the committee which claimed that the new laws are a reproduction of the existing laws.

The dissenting note states: “Arguably, the biggest ‘change’ has been the renumbering of Sections.”

Referring to Shah’s speech on August 11, 2023, while introducing the laws, the dissenting opinion states that substantive changes in the BNS are merely 12, for which a “simple five-page” amendment would have been enough.

The dissenting note remarks: “This exercise [renumbering of the Sections], experts opine, would be responsible for large-scale confusion resulting in unnecessary delay in the functioning of courts and the policing agencies.”

PUCL has also said: “These three laws will have the effect of impacting the entire edifice, structure and process of the criminal justice delivery system in India, covering 1.4 billion people across the entire country.”

Many Bar associations, including the Indian Association of Lawyers, All India Lawyers’ Association for Justice and All India Lawyers Union have indicated their intent to engage in indefinite agitation and protests unless the implementations of the criminal laws are suspended and subjected to a nationwide discussion, including a comprehensive review by the Parliament.

The Bar Council of West Bengal has decided to observe July 1 as a “black day” to mark the protest against the “hasty” implementation of the criminal laws. Members of the Bar have termed the laws “anti-people”, “undemocratic” and “draconian”.

The Bar Council of India, vide a resolution passed on June 26, 2024, has acknowledged the representation received from Bar associations and state Bar councils across the nation, expressing strong protests against the criminal laws. However, it has requested all Bar associations to refrain from any form of agitation or protest.

The resolution notes that notable luminaries such as senior advocates Indira Jaising, Kapil Sibal (President of Supreme Court Bar Association), Abhishek Manu Singhvi, Mukul Rohatgi, Vivek Tankha, P. Wilson, along with senior advocates from several high courts and trial courts have voiced strong opposition to the criminal laws.

It states that several Bar associations have called for a fresh examination of the provisions of the Prevention of Money Laundering Act, 2002 and the Unlawful Activities (Prevention) Act, 1967 apart from provisions under the criminal laws that “contravene the principles of fundamental rights and natural justice”.

The Bar Council of India has provided an assurance that it will initiate a discussion with the government to convey the concerns of the legal fraternity. It has asked all Bar associations and senior advocates to submit specific provisions that they deem unconstitutional or detrimental to the constitutional democracy to initiate a dialogue with the government.

Upon receiving suggestions from Bar associations, the Bar Council of India will constitute a committee comprising senior advocates, former judges, impartial social activists and journalists to propose necessary amendments to the criminal laws.

Hollow Decolonisation Project

The National Law University, Delhi’s senior faculty Dr Neeraj Tiwari was a part of the criminal reforms committee which drafted the laws.

Interestingly, the university’s Project 39A has severely criticised the criminal laws and has claimed that contrary to the argument of decolonisation, these laws indicate the “continuation and intensification of colonial-style powers”.

In the dissenting note filed in the committee, it has been stated that the laws retain a “colonial spirit” of the existing laws because the punishment for most of the offences has been retained and in some cases, the punishment has been made harsher.

It is also stated that the death penalty has been retained and has been added for at least four new crimes such as mob lynching, organised crime, terrorism and rape of a minor. The dissenting note remarks that there is no shift from retributive to rehabilitative justice.

One of the major concerns of the committee and other non-governmental organisations against the argument of decolonisation is that the offence of sedition has been retained and in fact, made more stringent.

Section 124A of the IPC (Sedition) has been retained in Clause 152 of the BNS as an “act endangering sovereignty, unity and integrity of India”. While the punishment under Section 124A extends to three years, under Clause 152 of the BNS, the punishment extends to seven years, and may also include a fine.

Vernacular Titles Of The Criminal Laws

Several bar councils across the country have held protests over the imposition of the Hindi language.

The Federation of Bar Associations in Tamil Nadu and Puducherry has been protesting since the introduction of the criminal laws. They have expressed strong reservations over the use of vernacular titles given to the criminal laws.

In August 2023, the Tamil Nadu and Puducherry Advocates Joint Action Committee’s general body passed a resolution condemning the vernacular titles of the criminal laws in violation of Article 348 (language to be used in the Supreme Court and the High Courts and for Acts, Bills, etc.) of the Indian Constitution.

Another resolution was passed by the All India Lawyers Union, Chennai, stating that although the overhaul of the criminal justice system has been done in the name of repealing British-era laws, their replacement is going to result in the blatant imposition of the Hindi language.

It should be noted that the only official language recognised in the Indian Constitution is English.

The dissenting note of the committee has also raised concerns over the use of “deliberately exclusionary” language. However, the committee has accepted the vernacular titles reasoning that the text of the criminal laws is in English, which does not violate Article 348 of the Indian Constitution.

Criminal Litigation likely to be increased by 30 percent

Senior advocate of the Supreme Court, Indira Jaising, wrote to the newly appointed Union minister of law and justice, Arjun Ram Meghwal, raising concerns over the implementation of the criminal laws.

On June 11, addressing a letter to Meghwal, Jaising requested a delay in the implementation of the three new laws until the desired consultation between the stakeholders including the judiciary at all levels, investigation agencies, and the government at the Union and state level has taken place.

In the letter, she cited data on the pendency of cases from the National Judicial Data Grid which, according to her, shows a grim picture of an overburdened judiciary.

As per the data, 34,180,141 criminal cases at the district and taluka courts are pending in India. Whereas, in the high courts, 1,755,946 criminal cases are pending. Similar is the situation at the Supreme Court where 18,049 (less than one year old) cases are pending.

It is, therefore, expected that the new criminal laws are likely to increase 30 percent criminal litigation, which will be an additional burden to the backlog of cases, Jaising concluded.

She has also pointed out the concerns over how it would create two parallel sets of laws since the criminal justice system is a combination of both substantive and procedural laws. This could directly impact the adversarial system of the country where chaos would occur about which law should be applied.

Problematic Provisions Introduced

The All-Indian Lawyers Association for Justice (AILAJ) and Project 39A have warned against the introduction of many provisions which solidify powers introduced by the colonial powers. One such provision is Clause 113 (terrorist acts) of the BNS. This is despite the fact that a special anti-terror law, the Unlawful Activities (Prevention) Act, 1967 (BNS) already exists.

Clause 113 of the BNS is similar to Section 15 of the UAPA defining terrorist acts. While under the UAPA, a sanction is required to prosecute someone, the BNS is a general criminal law where police could exercise such powers.

The committee has recommended that the BNSS must contain a provision where before registering a case, a sanction must be approved by a senior police officer to decide whether first information should be registered under the UAPA or the BNS.

Although this suggestion was adopted and an explanation to Clause 113 provides that an officer not below the rank of superintendent of police shall decide whether to register a case under the BNS or the UAPA, the larger question is why the attempt has been made to have a general law when a special law already exists, especially when the conviction rate in the later remains minimal.

Conclusion

The major concern remains is the hurried manner in which the government has introduced and passed the criminal laws in the Parliament and now wants to implement them. The laws impact every institution of the country, especially courts which have spent years in settling the jurisprudence India has today.