What legal experts say about implementation of new criminal laws?

Advocate and Congress MP Manish Tewari termed the new criminal laws as being pernicious in nature and draconian in their implementation.


Published Jul 02, 2024 | 9:12 AM Updated Jul 02, 2024 | 9:12 AM

Legal experts on new criminal laws

The three new criminal laws, which replaced the British-era penal statutes on Monday, 1 July have evoked mixed reactions from legal luminaries with some hailing them as “significant step” towards modernising criminal justice system while others terming them as “draconian” and “cosmetic”.

The new laws – Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) – came into effect across the country from 1 July and replaced the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act respectively.

Senior advocate Abhishek Singhvi said an opportunity to make genuine reforms has been wasted and “cosmetic changes” have been brought about in new laws, disregarding the crucial aspect of huge pendency of cases in courts, especially in trial courts.

However, senior advocate and former Supreme Court Bar Association (SCBA) president Adish C Aggarwala termed the new criminal laws as a significant step towards modernising the criminal justice delivery system and delivery of time bound justice.

This view was echoed by senior advocates Mahesh Jethmalani, also a BJP MP, and Vikas Pahwa.

Constitutional law expert and senior advocate Rakesh Dwivedi did not agree to the view that new laws will pose challenges to the lawyers and other stakeholders and referred to the implementation of several fresh laws like the Insolvency and Bankruptcy Code (IBC) in the past.

“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. The 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,” he said.

Also Read: Why omission of IPC Section 377 from BNS is two steps backwards in fighting gender-neutral offences

‘Draconian in their implementation’

Advocate and Congress MP Manish Tewari, however, has a different take on the issue. He termed the new laws “pernicious in nature, draconian in their implementation”.

Activist lawyer Kamini Jaiswal concurred with Tewari and termed them a “disaster”.

Significantly, the apex lawyers’ body, the Bar Council of India (BCI), came in support of the laws and recently urged all bar associations across the country to refrain from any immediate agitation or protest against the implementation of the new criminal laws.

“One of the important changes brought in by the new laws is the introduction of specific timelines for conducting trials and delivering verdicts,” former SCBA president Aggarwala said and hailed Prime Minister Narendra Modi and Union Home Minister Amit Shah for decolonising British-era criminal laws.

He said after hearing the arguments, the judges will have to render judgment within 30 days from the date of completion of arguments, which may be extended to a period of 45 days for reasons to be recorded in writing.

Jethmalani said the opposition parties do not understand that these laws are for everyone, for prosecution, for victims and for criminals. “I don’t understand which provision is the problem. They are just saying anything and have not analysed the provisions,” he said.

Pahwa said, “I think there are a lot of positive points if we read them as a whole. Of course there’s also a flip side. The biggest positive point would be the implementation of technology. The entire criminal justice system will now be governed by technology.” He said the trials will get expedited if the laws are followed in the right spirit.

Related: Southern states register first case under new ‘Bharatiya Nyaya Sanhita’ 

Thousands of cases pending before judges

“This is an opportunity to create genuine reform. Unfortunately, what has happened is cosmetic changes, 90 percent remaining the same, numbers changed, a few words changed here and there,” Singhvi said. He said one other thing which has been forgotten completely is that the judges are fighting with arrears.

“Our lower courts have about three-and-a-half crore or four crores of arrears, our High Courts have 60 odd lakhs of arrears, the Supreme Court has about 75,000-80,000 arrears When you tinker with the law by one comma, full-stop, it gives an opportunity to a clever prosecution lawyer or a clever defence lawyer to say, all the 100 years and 200 years of case law on that provision has been changed by the change of a comma, full-stop,” he explained.

“So, if you make cosmetic changes to three basic laws like IPC, CrPC and Evidence Act, you are giving an opportunity to increase arrears tremendously and that is what I am worried about,” he said.

On being asked about the new criminal laws coming into effect from today, activist lawyer Kamini Jaiswal said, “I think it is a disaster. I do not understand who benefits, not the common men, not the lawyers, not the investigating agencies, nobody and I wish the government was taking into account other things, how does it help the unemployment.”

“The CrPC was amended in 2013. What are they trying to show? This is just the arrogance of power. What will happen to people who don’t know Hindi? The judges are saying that they will use old terms only. In local courts, local language is used. There will be a delay in justice,” she said.

Tewari said the new laws will throw a spanner in the works of the Indian criminal justice system.

“From today, two parallel systems will be in play. All those cases registered before 30 June, 2024, midnight will be prosecuted under the old system and those cases registered after midnight will be prosecuted under the new system. There are 3.4 crore pending cases and a bulk of them are criminal cases. So, there is going to be utter confusion,” he said.

Former Law Minister and senior advocate Ashwini Kumar said these three new laws have led to a nationwide controversy.

“Many people have come up with a view that nothing has changed substantially to the extent that technologies are being used. Nobody disputed that, but in substance, nothing changed substantially,” he said.

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