The Parliament of India recently passed three new criminal law statutes to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act.
The uncertainty in the wake of the move has prompted legal practitioners to raise questions regarding the switch and how it will affect existing criminal cases.
On Wednesday, Supreme Court lawyer Vikram Hegde took to X to highlight the “confusion” that arose after the Karnataka High Court Registry published objections about petitions not being filed in line with the new laws.
Hegde pointed out that these laws were not yet in force, and even urged the Central government to issue a press release to clarify the same.
The new laws — the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam — received the President’s assent on December 25.
Following such assent, the new laws were notified in the Official Gazette on the same date. However, they are yet to be implemented. As per the gazette notification,
"It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Sanhita."
Union Home Minster Amit Shah recently emphasised that the infrastructural and technical framework to implement these laws in all union territories would be ready by December 24, 2024. He also said that meetings in all union territories would be held before January 31, 2024 to fully prepare them by December 22, 2024 to implement these laws.
There seems to be a lack of clarity as to when the new laws will actually be implemented. What needs to be looked at for the time being is how the police machinery and the criminal justice system in general — still functioning as per the old laws — will respond to this overhauling.
Apart from the Karnataka High Court example, there appear to be several other issues that may require ironing out so that the new laws are properly implemented in the country.
Former Law Secretary PK Malhotra expressed surprise at the mistake of the Karnataka High Court Registry.
He pointed out that the Act itself says that it will come into force from the day it is notified by the Central government.
“In that scenario, if it has got assent of the President, it has become law. But it is not yet notified by the Central government. Unless it is notified, it cannot be implemented by the courts. Courts are guided by the existing law only,” said Malhotra.
Given the hierarchical legal system in the country, it is imperative that those working on the ground, including police personnel, trial court judges, lawyers and the higher judiciary, prepare for the future, he said.
This, in turn, would allow achieve the objective as stated by the Union Home Minister - to ensure a non-punitive system focused on ensuring justice for all.
Malhotra, on the other hand, finds some of the new provisions to be quite ambitious. He feels that change can be brought about by fulfilling infrastructural and logistical requirements.
“It is a very ambitious project and nothing wrong in doing that. Rather, we will welcome it as they are saying that this is a reformative. But for that, do you have enough infrastructure and enough number of judges? So you have to increase the number of judges, you have to provide infrastructure, you have to increase the number of forensic science laboratories. I can say educate even the legal fraternity with regard to the changes which have been brought and unless that is done in a proper way, its implementation is going to take quite some time,” he said.
He also believes that there ought to be “some breathing time" as new laws require notification of new rules. For example, the old offence of cheating was under Section 420 of the IPC, but people need to understand the new section under which the offence has been categorised.
The former bureaucrat underlined the need to train police officers, especially those investigating cases and filing chargesheets, to get in tune with the new system brought into force.
The suggestion only seems fair with the present tally of 17,000 sanctioned police stations and over 3,500 district court complexes in the country.
“That itself is going to be a big task. All police training institute, all national judicial academies, I think they will have to travel an extra mile to see that even the judges are also sensitised with regard to the problems which they are going to face because of this change. Because whenever there is a change in the system, you can't expect perfection from day one,” he said.
According to criminal lawyer Manoj Taneja, the complete overhaul and changing of the language of different provisions by way of replacing the IPC, CrPC and Indian Evidence Act would make it a “Herculean task” to implement. Not only the police force, but also lawyers, especially the ones practising in trial courts, will find it difficult, he said.
“Studying and understanding all these new three laws and their respective provisions from scratch at this stage of life in the professional field for any criminal lawyer like me (who has put in more than three decades) will be like going to lower school again and start the learning process afresh from scratch. It will be like starting your professional life all over again by studying again from ABCD."
Senior Advocate Sidharth Luthra recently wrote that the new laws would burden the courts, which are already grappling with pendency.
Taneja agrees that the new statutes will add to the existing pendency of cases before trial courts. Lawyers practising in the criminal field and even trial court judges would require studying these laws for proper implementation.
“All this will also take a good, long period of time for various High Courts and then also for the Supreme Court to lay down precedents on all three new legislations,” he added.
While the introduction of the new laws is being touted as a monumental shift from the remnants of the colonial era, only time will tell how the stakeholders in the criminal justice system will adapt to change.