Old wine in a new bottle? Legal experts weigh in on the proposed changes to India's criminal laws

Last year, on India's 76th Independence Day, Prime Minister Narendra Modi said that the government repealed more than 1,500 archaic laws in a bid to "shed the vestiges of India's colonial past".

“In this Azadi Ka Amrit Kaal, new laws should be made by abolishing the laws which have been going on from the time of slavery,” the PM had said in his speech.

Almost a year later, the Central government has introduced proposed changes to the country's criminal laws, aiming to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act.

The government intends to replace the IPC with the Bharatiya Nyaya Sanhita, 2023, the CrPC with the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Evidence Act with the Bharatiya Sakshya Bill, 2023.

In a move that prompted criticism from the opposition, the three Bills were introduced in the Lok Sabha on August 11 and have now been sent to a parliamentary standing committee for further reading and approval.

Speaking in the Lok Sabha, Union Home Minister Amit Shah revealed that the formulation of the three laws involved extensive deliberations with various stakeholders over the last four years.

In 2020, the Home Ministry had constituted a Committee for Reforms in Criminal Laws set up at the National Law University, Delhi under the chairmanship of then Vice-Chancellor, Prof Ranbir Singh. Shortly after the formation of this Committee in 2020, stakeholders in the criminal justice system flagged concerns over the constitution and functioning of the body.

Four years and many changes to the composition of the Committee later, the three new draft statutes have seen the light of day.

But what does the legal fraternity think about these proposed changes? Are they really a departure from our colonial-era laws? We spoke to noted criminal lawyers and former judges to find out.

According to Senior Advocate Rebecca John, the changes may cause more harm than good.

"To a great extent, it's old wine in a new bottle. Essentially, they've altered the section numbers, and this adjustment could pose significant challenges for both legal practitioners and judges," she said.

Elaborating further on the difficulties the new laws could pose for lawyers, she said,

"Over the past several decades, we've become accustomed to a particular structure, and this shift might create difficulties in interpretation and application. If you retain much of the substance but change the section placements, then it is not really a creative exercise. Now you suddenly say 302 is not 302 but it's 101. It'll take me a while to remember that!"

John added that the new provisions are mostly incomprehensible.

"If you were to look at the explanation to Section 150, which is the modified version of Sedition, it’s an incomplete section. You can't make head or tail of it."

Referring to mob lynching being made punishable under the new law, John said,

"Lynching has been included as murder. It is punishable with death or imprisonment for life or imprisonment to seven years. How is it justifiable when murder is punishable with death or life imprisonment? It gives the impression that the drafting committee was not serious in punishing crimes of this nature."

Although there are intriguing modifications, the core of the Code remains largely unchanged, said Senior Advocate Sidharth Luthra.

In his opinion, ideally a distinct structure should have been framed, merging procedural, evidentiary, and substantive statutes into separate comprehensive codes. This would have simplified the legal process for practitioners, judges and investigators, eliminating the need for investigators to navigate numerous matters and issues each time an investigation commences, he added.

"Then there is an important thing, I mean how are we going to deal with multiple offences, corruption here and corruption in the Prevention of Corruption Act? Organized crime here and in statues like MCOCA, terrorism here and then UAPA? So these are issues which I hope will be dealt with by the standing committee."

The senior lawyer also called for a thorough and purposeful process before finalizing the enactment of these laws, given that they will impact a vast majority of individuals at various points in their lives.

Talking about the changes brought in, Luthra opined that the most significant one was the introduction of community service.

"The Code of Criminal Procedure (CrPC) permits electronic trials and introduces modifications like the inclusion of electronic FIRs, the utilization of 3D signatures as data and provisions for trials via media conferencing. Additionally, the Indian Penal Code (IPC) has undergone restructuring, and grouping of similar provisions together for enhanced comprehensibility in court," he added.

Luthra further emphasized that the Evidence Act presents a reiteration of the existing structure, albeit with an expanded focus on electronic evidence.

"However, a closer comparison reveals that it is essentially an incorporation of certain evidence principles from Supreme Court judgments with quite similar language," he said.

Criminal law demands certainty and the continuity of interpretation is a great virtue, opined Senior Advocate Sanjay Hegde.

"We had built an edifice of understanding and interpretation based upon what Macaulay and Stephen formulated in the 19th century. These concepts should have remained intact with suitable amendments where necessary. Criminal procedure, however, can and should be modernised as we had done in 1973," Hegde emphasized.

He pointed out that the revamp has been carried out by a group of part-time academics functioning as a committee.

"The drafts produced appear to have not been finalized before being put before Parliament. Nothing else can explain the errors of grammar, syntax and logic, plus the incompleteness of some sections."

If the government wanted to de-colonize the law by changing the name, they would have done well to have restricted themselves to name-changing, he added.

"To use a culinary metaphor, it seems to me that they set out to cook a new omelette, but have ended up with a mashed-up scrambled egg, which they have still served on the table," Hegde remarked.

The Indian Penal Code and Evidence Act have withstood the test of time and served well, said retired Supreme Court judge Justice BN Srikrishna.

"I do not know if the new Acts have the same terseness in definitions which is the hallmark of good legislation. As for their functionality and impact on court proceedings, the future only can tell," he said.

Former Rajya Sabha Member of Parliament and Senior Advocate Majeed Memon said that every provision under each of the old laws has been examined in depth by the Supreme Court and the High Courts from time to time, and amended, substituted and repealed accordingly. 

"You can't in one stroke, lock, stock and barrel, change all these laws. Naturally, now it has been sent to a select committee," he added.

Having served as a member of the Law and Justice Standing Committee for five years, Memon had contributed numerous suggestions aimed at reforming the judicial process. These included measures to expedite criminal trial durations, especially in cases involving custody where the accused awaits justice. However, in his opinion, the new laws do not address these issues.

"I am of course happy if the government is serious in examining minutely all the provisions of the criminal laws and then replacing them with such provisions which are the need of the society on this day," he said.

Justice K Chandru raised the question of why a complete overhaul of the Indian Penal Code was undertaken without any public discussion.

"Even a thana police will know by heart IPC's provisions...CrPC was newly enacted only in 1973 and what is the need for its sudden change? Millions of copies of the various forms made under it will have to be discarded now by courts and law enforcing agencies. Why this changing provisions upside down like shuffling them as a pack of cards? Even if you give 420 any other section number, it will still be called "char sau bees" only," he remarked.

"Let us not waste our time like Tughlaq who frequently changed his capitals and whose memory you had desperately wanted to erase in Delhi. No more Tughlaq Adhiniyams. Enough is enough," he opined.

The introduction of three Bills reflects the necessity for the law to remain adaptable and responsive to the evolving needs of society, rather than being static, remarked former Kerala High Court judge V Chitambaresh.

"The provisions have been chiseled to plug the loopholes existing in the current law. Various inputs have evidently gone into the exercise, which is commendable. The Bar and Bench will overcome the hiccups and get attuned to the dispensation of justice. After all, a lawyer is always a student of law and the courts have to rise up to the occasion. The new law can only be prospective in operation and cannot affect the existing litigation," he opined.

"The proposal itself will create difficulties for implementation as has been seen in the recent past with the Companies Act and the Insolvency and Bankruptcy Code," opined Advocate Abhinav Sekhri.

"Being a criminal lawyer all through my life, my only serious question is to the manner in which the Union government has introduced three serious bills in the Lok Sabha without any of the respective drafts even being put to the people of this country," said Advocate Manoj Taneja.