‘New criminal laws will be taught in consonance with old ones’: Amity University professor

By Pawan Kumar

On July 1, 2024, the union home ministry notified the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagrik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) passed and enacted in 2023. These new laws will replace in a time-bound manner the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872.

The well-planned comprehensive legislative change seeks to modernise and galvanise the criminal justice system, rendering it more efficacious, equitable, and aligned with contemporary societal and citizen’s needs. In this piece, I examine these legislative reforms' constitutional underpinnings, implications, challenges, and potential benefits for the citizens of India in the coming days and years. The piece also looks at changes in legal education and the significant levels of retraining required for legal professionals.

The origin

The old criminal laws were enacted during the British colonial administration and designed to serve colonial imperatives. Indian Penal Code was drafted in 1860 after the sepoy mutiny in Bengal and is very comprehensive, containing more than 500 provisions. The CrPC, originally enacted in 1898 and revised in 1973, provides the procedural framework for criminal trials. The Indian Evidence Act, introduced in 1872, governs the admissibility of evidence in judicial proceedings.

Also read Telegram link to NEET, UGC NET paper leaks unsurprising: Experts

Notwithstanding numerous amendments, these laws have frequently been criticised for being outdated, rigid, and misaligned with the modern Indian socio-legal landscape.

This law has undergone numerous changes through amendments and judicial decisions to meet the necessity of modern complex pieces of evidence and forensics.

The need for new laws

The Indian government’s proposal to supplant these colonial-era laws with the BNSS, BNS, and BSA is driven by the necessity to confront contemporary challenges and inefficiencies. The BNSS aims to overhaul procedural aspects of criminal law, the BNS seeks to modernise substantive criminal law, and the BSA intends to reform evidentiary law. These reforms represent a profound jurisprudential shift, reflecting the aspirations of a modern, democratic India and adhering to the constitutional mandate of ensuring justice, equality, and the rule of law.

The BNSS is meticulously designed to simplify and expedite criminal procedures, thereby aligning with Article 21 of the Indian Constitution which ensures to everyone and not just Indian citizens, the right to life and live with dignity; which guarantees the right to a speedy trial. The pendency of cases and undertrials in jails is a major problem with the Indian legal system and it is hoped that in coming years, the new procedural law (BNSS) will effectively help in reducing the numbers.

Some of the key features of the BNSS include streamlining the process of filing First Information Reports (FIR) and enhancing accessibility. By prioritising the use of digital records, online filing, and virtual hearings, the BNSS aims to mitigate delays and enhance transparency, thereby upholding the constitutional value of efficiency in the administration of justice. Additionally, the BNSS enhances protection for victims, ensuring timely compensation and support services, and promoting a victim-centric approach. This victim-centric perspective aligns with the constitutional principles of justice and equality, ensuring that the rights of victims are adequately safeguarded as well as international principles of justice for victims as adopted by the United Nations.

Also read ‘Global perspective’ and better jobs: Why Indians are opting for LLM abroad

The BNS proposes major reforms in criminal law, reflecting the evolving nature of crime and societal needs. It reclassifies offences to encompass cybercrimes, financial frauds, and gender-based violence, demonstrating a proactive approach to contemporary challenges. The BNS introduces a nuanced approach to sentencing, ensuring penalties are proportional to the gravity of the offence, with alternative sentencing options such as community service and rehabilitation programs. This proportionality in sentencing reflects the constitutional principle of fairness and justice. By decriminalising minor offences, the BNS aims to reduce the burden on the criminal justice system, enabling it to focus on serious crimes. Emphasising correctional measures, the BNS promotes rehabilitation and reintegration of offenders into society, marking a shift towards a more humane and rehabilitative justice system, as envisioned by the constitutional ideals of reformative justice.

The BSA brings major changes to the existing law of evidence, adapting to technological advancements and procedural fairness. Recognising the critical importance of digital evidence, the BSA includes comprehensive provisions for its admissibility and evaluation. Strengthening measures to protect witnesses from intimidation, the BSA ensures their safety and the integrity of their testimonies. Through the relevance and reliability of evidence, the BSA aims to prevent the admission of irrelevant or prejudicial evidence that could compromise the fairness of trials. Simplifying the process of evidence collection and presentation, the BSA seeks to reduce procedural delays and enhance the efficiency of trials. These measures align with the constitutional mandate to ensure fair trial procedures and uphold the integrity of the judicial process.

New laws and legal education

The new laws will change the landscape of legal education in India. Indian law schools and colleges have started changing their syllabi to include new laws. As old laws are phased out, the law learners and practitioners will be well versed with the new ones. While criminal laws mostly form part of two semesters in Indian law schools and universities, focusing respectively on substantive and procedural laws, the new criminal codes will be taught in consonance with the old ones.

The new laws also align with other laws, mostly digital technology and law. The emphasis on cybercrimes and financial fraud in BNS, for instance, reflects the digital age's challenges. The CrPC’s complex procedures often lead to delays and backlogs. In contrast, the BNSS aims to simplify and expedite processes, leveraging technology to improve efficiency and accessibility.

The challenges

Despite the potential benefits, the new laws face formidable challenges as with any other laws. The judicial infrastructure and police machinery will take some time to adapt to new changes though the ministry of home affairs and state departments have started training their police officials including organising moot courts and sensitising programmes.

The budget for the judiciary will also go up as new laws will need new training and manuals including books and commentaries. Effective implementation necessitates substantial investment in infrastructure, technology, and training. Ensuring uniform application across India’s diverse and resource-constrained jurisdictions will be challenging. The emphasis on technology may exacerbate the digital divide, particularly affecting marginalised and rural populations.

Also read 3-year Vs 5-year: How the LLB courses compare on curriculum, legal job opportunities, challenges

Ensuring digital literacy and access is critical. The judiciary’s capacity to adapt to new laws and procedures is crucial. This includes training judges and legal professionals to comprehend and apply the new provisions effectively. Increased use of digital evidence and technology in law enforcement raises concerns about data privacy and potential misuse of personal information. Robust safeguards must be in place. Institutional inertia and resistance to change within law enforcement and judicial bodies could hinder effective implementation. Overcoming this requires comprehensive change management strategies.

New criminal laws a milestone

The enactment of new laws marks a significant milestone in the evolution of India’s criminal justice system as well as India’s legal education. These reforms have the potential to address long-standing issues of delay, inefficiency, and outdated legal provisions, aligning the system with contemporary needs and principles of justice. However, their success depends on effective implementation, addressing challenges such as the digital divide and resistance to change, and ensuring the judiciary and law enforcement are equipped to adapt to the new framework.

In essence, while the road ahead may be complex, the proposed reforms hold promise for establishing a more just, efficient, and responsive criminal justice system in India. By replacing outdated colonial-era laws with contemporary and progressive legislation, India can pave the way for a future where justice is not only accessible but also administered in a manner that aligns with the evolving socio-legal dynamics of the nation. The transition from the IPC, CrPC, and Evidence Act to the BNSS, BNS, and BSA represents a bold and necessary step towards a more equitable legal framework, one that is reflective of India’s aspirations in the 21st century.

Pawan Kumar is an assistant professor at the Amity Law School, Amity University, Noida