On July 1, 2024, the three new criminal laws passed by the Parliament in 2023 came into effect. These laws are the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA), replacing the Indian Penal Code (IPC) 1860, the Criminal Procedure Code (CrPC) 1973 and the Indian Evidence Act (IEA) 1872. As the old laws cease to exist, the government hails the new criminal laws to be a move towards decolonising the erstwhile British era-introduced laws and moving the country towards becoming “swadeshi” (self-reliant) where the impetus of the law would now be on “nyay” (justice) and not “dand” (punishment).
Some have highlighted how the new criminal laws take into cognisance the issue of gender parity, the high undertrial burden of the judiciary, and rusty provisions which did not allow the use of technology in the juridical process. In light of this, authorities such as the Chief Justice of India and other legal luminaries have “welcomed” the new criminal laws. However, many lawyers, legal associations, and scholar-activists have expressed reservations about these laws (Indian Express, 2024). Questioning the process of implementation, the need for “decolonisation” and the raised caution against the shifting of discretionary powers towards state authorities at the cost of the rights of the citizens, experts believed the new criminal laws require a lot more analysis and deliberation, especially, as they are already in effect (The Hindu, 2023).
Before delving into the new laws, it is important to briefly discuss what the existing rules were. The first is the Indian Penal Code, which defines a crime and its meaning in India. This is called the substantive form of a law. The second is the Code of Criminal Procedure, which came into effect in 1872 but was amended in 1973, defining the law’s execution process. It highlighted what the police can and cannot do, the rights of the accused, and what powers the Indian courts could exercise to serve their verdicts. This is known as the procedural form of law. Finally, we had the Indian Evidence Act, which laid down the conditions for the admission, documentation, and presentation of data and proof within the courts.
Since the passing of the new laws, while the old laws cease to exist, anyone charged before July 1, 2024 will still be placed under the substance of the Indian Penal Code, and anyone accused since July 1, 2024 will be placed under sections of the Bharatiya Nyaya Sanhita. Yet, the new procedural law will apply to both the people being charged under the IPC and the BNS. Yet, lawyers can argue that the new procedural laws are prejudiced against their clients and, thereby, should not be used in their case, thereby further leading to the possibility of delays in the process of the trial (The Wire, 2024).
Many of the essays written about the new criminal laws range from the issues on the need to expand the provisions about the “sovereignty, unity and integrity” to higher punitive discretion which the police have with regard to the gathering of evidence at the same time to initiate an investigation only after which an FIR will be filed. These measures are bound to make it more difficult for those who are already discriminated against by the police, such as women and the marginalised, for to file an FIR and seeking legal complaint would now be preceded by the police performing the role of ‘mediation’ rather than officiating a complaint.
However, what is important is to engage exactly with the decolonial rhetoric of the new criminal laws (The Wire, 2024). The vagueness and confusion that have emerged with the two law systems that exist simultaneously will continue for at least the next couple of decades because appeals can be made under the IPCs even after 20 years, as rightly pointed out by Karan Thapar. However, one has to ask how the existing laws were inadequate. The erstwhile laws, precisely because they went through the debates of the Constituent Assembly along with decades of judicial interpretation, produced a corpus of jurisprudence on which everyone could fall back for interpretation and authentication. Yet, the new laws emerging at the time of parliamentary suspensions without adequate debate and deliberation raise one question: which corpus of jurisprudence would people now fall back to in order to manoeuvre through the confusions of interpretations?
At the same time, as Menaka Guruswamy very briefly mentioned, the loss of everyday language, which the Indian Penal Code had acquired and is being mourned by the people in the legal professions, is precisely what made it relatively more democratic and accessible for people in the country. People in their vernaculars had juxtaposed that Char Sau Bees (IPC 420) meant fraud, and Dhara Teen Sau Do (IPC 302) meant murder. For decades, legal awareness campaigns were organised to make women aware of the CrPc procedures for filing for compensation in the family courts and the YouTube channels explaining IPCs to people in vernacular tongues. This disruption, which has emerged on a legal level, causes confusion for both the numbering and the language of the sections in these new criminal laws have been changed while retaining the essence for a majority of them.
Law and language have a definitive relationship. The passing of the new criminal laws has put into question the entire corpus of jurisprudence that had evolved through years of judicial interpretation. A simple clarification on the part of the judiciary would make the process of transition quite smooth, expressing which laws would follow the same precedence and not. Extending the concerns raised by lawyers, a legal system which, because of delays and backlogging, ends up discriminating against the socially marginalised is on the path to lead to further delays and undertrials, which is impending because of the disruption caused by the new criminal laws (Jaising, 2024).
Arman Hasan is a postgraduate researcher. He has recently completed a master’s degree in Sociology from South Asian University, New Delhi. Currently, he is working for the Centre for Development Policy and Practice, Hyderabad.
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