July 07, 2024

Hold These Criminal Laws in Abeyance

THE BJP has ensured that the three new laws passed by the government at the tail end of the last Lok Sabha in a most cavalier and undemocratic fashion have now been enforced all over the country on July 1.  These laws, the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam have replaced the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC) and the Indian Evidence Act respectively.

It is nothing short of mind-boggling that the entire system of criminal justice has been subjected to major changes without preparation, discussion and debate and it demonstrates that for the BJP nothing has changed even after the electorate has given a verdict on its performance and policies that have robbed it of its majority in parliament.

The three laws which have been given Hindi names only and have been published only in that language were not discussed in the Lok Sabha at any length.  They were sent to a select committee for a very perfunctory study and were then passed within minutes of being placed before the house.  The house itself was deprived of the presence of most of the members of the opposition since 148 of them had been suspended and, therefore, could not attend its proceedings.

The fact that the legal fraternity, members of all levels of the judiciary and even the police have not been familiarised with the new laws will naturally create tremendous problems as far as their interpretation and implementation is concerned.  This, of course, will be compounded exponentially by the fact that with the enforcement of these laws, a parallel system of criminal justice will come into existence.  A person who has committed a crime before July 1 will be tried by the substantive criminal laws in existence then.  If the same crime is committed after July 1, the accused will be tried under the new substantive laws.

This means that a parallel system of justice is being set up and both laws will run concurrently and there will be disputes as to which system is to be applied.  For example, in any one case the ones who were charged in FIRs before July 1 will demand that they be tried under the old laws while the prosecution may try to have them tried under the new laws.  Appeals will also become very complicated.

Laws are interpreted at the hands of the Supreme Court and the amendments in the CrPC made in 1973 have only now achieved some certainty.  For the new laws, that kind of certainty will take another 50 years. One can imagine what will ensue when thousands of magistrates in the country interpret the new laws in different ways.  Of course this will pose tremendous problems for the accused who will have to face many interpretations and many delays.  If the accused is in custody this will further aggravate his/her problems and suffering.

While Article 21 of the Constitution of India guarantees that no citizen will be deprived of life and liberty except by procedure established by law, this will be difficult to enforce since what the law is, is itself being disputed.  These new laws introduce both uncertainty and vagueness as to what the law says.

 Senior lawyers have calculated that the large number of pending criminal cases will increase by 30 per cent after the new laws are enforced.  They will effectively ensure that justice is denied to thousands, especially those that lack resources.  It seems that the government has made no attempt to calculate what the effect of the new laws on pendency will be.  Perhaps it does not care.  

Apart from these problems of translation and implementation which could be excused as unavoidable glitches, some sections of the new laws are very draconian while others are certainly going to place obstacles in access to justice.

The first step in accessing justice is the registration of an FIR.  Under the new laws, the registration of an FIR pertaining to any offence that carries a punishment of three to seven years of imprisonment can be delayed for up to 14 days while the station house officer applies his mind to studying various aspects of the matter.  This is in complete contravention to Supreme Court rulings that insist that police register FIRs immediately.  The right given to the SHO to delay registration by upto 14 days will, of course, lead to harassment and coercion of the victim to withdraw his/her complaint, it can lead to corruption of the police and it gives an opportunity to the accused to use various methods to save himself/herself.  This change ushered in by the new law will be extremely detrimental to the right to justice of the poor and weak who are already handicapped in accessing this right in many ways.  The new laws also allow the police to seek remand for longer periods beyond the 15 day limit set in the previous  law; use handcuffs for ‘repeat offenders’ (a new category) and, therefore, enhance their power to deny justice to the weak, poor and oppressed and to those whom they feel are inimical to the government’s interests.

Another extremely dangerous aspect of the new laws is that while Section 124A of the IPC which defined sedition had been done away with earlier by the Supreme Court, this re-appears in Section 152 of the Bharatiya Nyay Sanhita along with additional references to the sovereignty and integrity of India which were not there in the original Section 124A. According to senior lawyers, this introduces the offence of being ‘anti-national’ in the law which was not the case earlier.  This, naturally, impacts extremely adversely on the freedom of speech and expression and the right to dissent.  The record of the government even before the passage of these new laws has been harsh and unjust as far as the treatment of dissenters was concerned.  Now the new laws will make the situation even worse.

In addition, many offences under the UAPA have been included as offences under the new criminal law.  This means that an accused could actually face two charge-sheets and two investigating authorities, the NIA under the UAPA and the local police under the new criminal law. While only one punishment can be meted out, the process itself will be harshly punitive.  Also while under UAPA, the investigating officer is of a higher rank than the local IO in the police station, under the new law any ordinary police station will have the right to investigate terrorism.  Even more disturbing is the fact that while the government has to give sanction to prosecute under UAPA, under the new law any ordinary police officer can prosecute anyone for terrorism.

The new laws must be firmly opposed.  Lawyers’ organisations all over the country are planning protests and boycotts of courts; thousands have signed petitions addressed to the Supreme Court and, as information about the laws becomes more widely known, protests and opposition will continue to grow.

The NDA government must be forced by public opinion to keep the three laws in abeyance till a fresh scrutiny is done. These laws threaten the life and liberty of all citizens of India and cannot be accepted in their present form.

(July 3, 2024)..