Every day, since July 1, 2024, the country’s 17,535 police stations have been grappling with the implementation of three new criminal laws. Pursuing investigation, filing chargesheets, attending court hearings in respect of both old and new laws, can be fairly tricky especially when a whole lot of new features are introduced — imposing further responsibility — without providing any additional resources. Each new day brings new challenges. Hence for sudden searches or seizures, the new protocol cannot be adhered to, nor in every serious case the forensic team as mandated, can reach over 9,000 odd rural police stations in time.
Will the new criminal laws overhaul the system? Is this a giant step towards decolonisation? Overwhelming evidence suggests: no. In fact, there’s still time to roll back these laws.
The Madras high court while hearing a batch of Public Interest Litigations (PILs) against the new laws averred that the new nomenclature has caused chaos and questioned why the Law Commission was not asked to write them. Besides, if only less than 10% of the laws were to be changed, amendments made to earlier laws would have sufficed.
Even the changes brought in are impractical, fraught with legal issues and will suffer from problems of implementation. But before they are listed out, it should be acknowledged that there are some welcome initiatives. The ease of filing First Information Reports (FIRs) will be a boon for the common people, and the thrust towards modernisation and embracing latest technology will speed up the system.
The digital architecture will provide a seamless platform enabling the easy transfer of electronic evidence and record keeping from police stations to the courts. Audiovisual recording of seizures, searches, statements to mapping of crime scenes and mandatory use of forensics in crimes with more than seven years of punishment are welcome moves. Renewed focus on women and children by assigning a special chapter and enhancing punishment for some offences are again timely and much needed. Adding mob lynching as a new crime is a well thought out response to today’s dire need to control religious bigotry. Lastly, clear timelines for submission of reports, framing of charge sheets and delivering judgements are aimed at speeding up case trials and decisions.
However, the expansion of police powers is deeply concerning. The provision for preliminary enquiry in cognisable cases gives undue latitude to the police, risking misuse. This contradicts the Supreme Court’s judgment in the Lalita Kumari case, which mandated immediate registration of FIRs in cognisable offenses.
Growing apprehensions over police remand for 60 or 90 days are well founded. The home minister has stated that the remand period will remain 15 days which can be taken over a number of days but then the natural corollary is that bail conditions would become extremely difficult. When bail is the rule and not jail, this provision curtails freedom severely.
Police discretion in registering terrorism under the Bharatiya Nyaya Sanhita (BNS) or the Unlawful Activities Prevention Act (UAPA) is disconcerting. Under the BNS, police can register terrorism charges even when the accused is not part of a terrorist organisation, without requiring government sanction for prosecution. This broad power, as pointed out by former Delhi high court judge, Justice S. Muralidhar could lead to potential misuse and harassment of individuals. Another safeguard of Deputy Superintendent of Police (DSP) or above being the Investigation Officer (IO) in such cases under Unlawful Activities Prevention Act (UAPA), is bypassed.
The organised crime section suffers from vague definitions. The terms like hawala transactions, mass marketing frauds, contract killing and land grabbing lack clear definitions in the BNS or the Maharashtra Control of Organised Crime Act (MCOCA). This ambiguity, as highlighted by criminal law expert K.T.S. Tulsi, leaves room for arbitrary interpretation and potential misuse.
The new laws also relax the requirement to record statements of vulnerable individuals at their residence, potentially exposing them to undue pressure. This change, as noted by women’s rights activist Kavita Krishnan, could particularly impact women and elderly victims of crimes.
Missed opportunities include mandating videography of post-mortems in custodial deaths or police encounters, and making scaled crime scene sketches admissible in court, as suggested by the Supreme Court. Former CBI director, R.K. Raghavan points out that these measures could have significantly improved the quality of investigations.
The section on petty organised crimes is problematically vague. Including “any other similar acts” gives excessive discretion to investigating officers. This echoes the issues with Section 66A of the IT Act, struck down by the Supreme Court for being too open-ended. Legal scholar, Gautam Bhatia, in his blog “Indian Constitutional Law and Philosophy”, draws parallels between these provisions and warns of potential constitutional challenges.
While the new laws set timelines for various stages of the legal process, similar deadlines existed before and were rarely met. Without addressing court vacancies, frequent postponements, poor infrastructure, and case backlogs, these new timelines are unlikely to ensure speedy justice. Former Chief Justice of India, R.M. Lodha, in an interview, emphasises that “systemic reforms in the judiciary are more crucial than new laws for ensuring timely justice.”
Modernising investigation, digitising case file transfers and using electronic means to facilitate statements and presentation of evidence is a herculean task. To provide 800 odd police districts in the country with sophisticated forensic science infrastructure, comprising vehicles, labs and scientists seems a distant target. Even the CCTV cameras mandated by the Supreme Court in all the police stations have not been implemented.
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The Wi-Fi set up even in semi-urban areas is weak and use of audio-visual recording of statements, seizures and searches call for a huge budget outlay, training and manpower too. The states do not want to spend on police and the modernisation schemes would not be enough to take care of urgent needs. According to former DGP Julio Ribeiro, even the five years’ time given by the Centre to the states to gear up may not be enough.
It would have been prudent to implement the much awaited reforms in the four pillars of the criminal justice system before introducing the new laws. After all, the police being the major instrument for implementation, should have been restructured to obviate false arrests and misuse of harsh laws. The prosecution system needed an overhaul for aiding investigations and effectively argue cases. The prisons need infrastructure and trained officers, well versed in laws, procedures and rights of prisoners. The numbers are overwhelming and a time bound plan is imperative to rationalise the number of prisoners within. The judiciary, alas, needs major overhaul, which of course the lordships can only initiate.
There is still time to roll back the laws. A battery of practising lawyers, retired judges, policemen, prosecutors, NGOs and members of civil society need to look at it afresh. There are complaints from various sections that they were not consulted. Let the Law Commission coordinate it. The law was passed without discussion in the parliament. With a series of crimes being foisted on political party activists for unrelated reasons, the MPs need to take a closer look and discuss it threadbare.
Framing laws is easier than reforming institutions. But for meaningful change in our criminal justice system, we must prioritise institutional reforms and wide-ranging discussions before implementing new laws. As noted by the legal scholar, Upendra Baxi, “The path to true criminal justice reform lies not in new laws, but in transforming the institutions that implement them.”
Yashovardhan Azad is a former Central Information Commissioner and a retired IPS officer who served as Secretary, Security, and Special Director, Intelligence Bureau; Sanjay Hegde is a Senior Advocate, Supreme Court; R K Vij is a former IPS officer.
