The draft Bills to amend the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, have evoked mixed responses in the legal fraternity in Karnataka.
Union Home Minister Amit Shah introduced the draft Bills — the Bharatiya Nyaya Sanhita Bill, 2023, the Bharatiya Sakshya Bill, 2023, and the Bharatiya Nagrik Suraksha Sanhita Bill, 2023 — in the Lok Sabha on 11 August to ensure speedy justice, the integrity of evidence to enhance conviction rate and reduce the pendency of cases.
After referring them to a Parliamentary Standing Committee, the Bills would be tabled in the next session of Parliament for further discussion. The Bills have already invited ire from the South for their Hindi names, and for being violative of Article 348 of the Constitution.
Mixed bag of reactions
Several prominent advocates in Karnataka welcomed the move, terming it a much-awaited development. Expressing excitement, they opined that it was high time that India did away with the outdated British colonial laws and replaced them with new laws in tune with modern times, where the nature of crimes, the psyche of criminals, and technologies have changed.
However, some others in the legal fraternity were critical of the proposed laws and even demanded the scrapping of the Bills. They termed it an attempt to saffronise the Indian Criminal Justice system.
The draft Bills replicate existing laws on most fronts and re-categorises other offences with change in names. The new bills envisage terrorism, mob-lynching, corruption, rape on false promises of marriage, and organised crimes under the penal laws but ATM thefts, and question-paper leak cases are categorised as petty, organised crimes.
The proposed Bills, much like existing laws, have a provision for registering zero-FIRs, mandating police stations to accept complaints irrespective of the jurisdictional area where the crime has taken place. Those supporting the government held as game-changer the proposal to video-record searches and seizures by police, the use of electronic evidence on a par with changing technologies and forensic findings admissible in courts.
The proposed laws have mooted community service as a form of punishment. They also proposed speedier justice allowing video-conferencing for those testifying during trials and even holding trials in the absence of the accused.
However, a section of legal experts pointed out the vagueness in some of the proposed laws. They felt that the police would be vested with unreasonable, discretionary powers for arresting people and it could lead to the abuse of power.
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‘Welcome changes’
“I definitely welcome the proposed changes,” Siji Malayil, a senior advocate specialising in criminal law in the High Court of Karnataka told South First.
One of the key highlights of the Bills that impressed him was the provision to film searches and seizures during investigation.
“Earlier, the raids and seizures were not video-graphed and as per the Bills and the amendment, they should be recorded. This clause would bring down false cases. Also officers engaging in such illegal activities could be held accountable once this law comes into effect,” Malayil said.
He added that the draft Bills proposed the eradication of continuous adjournment of cases. Such adjournments have been the major reason for criminal cases dragging on for years.
The new provision would drastically reduce the pendency of cases and offload a lot of burden from the courts. He also suggested adding more courts to handle huge volumes of cases listed for a particular working day.
The senior advocate found the move to conclude trials within a specified time as a smart one. However, to implement in toto, there must be more courts. Since many courts were now vacant, implementing it could be a challenge, he pointed out.
“The amendment to the Indian Evidence Act with respect to electronic evidence is also a positive change,” he said, adding that electronic evidence coming under the purview of the criminal justice system was a requirement for a long time.
Malayil also welcomed stringent punishment for heinous crimes such as those against women, and children.
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Esoteric, says senior advocate
Another senior high court advocate Ramananda felt the amendments were meant for — or likely to be understood by — a small number of people with specialised knowledge or interest.
“The new laws will be esoteric. Interpretation of laws would be time consuming, and lawyers and judges would be put to rigid test. Common legal terminologies easily understood would get replaced and they would not be easily recalled,” Ramananda said.
The advocate also stated that amendments were essential to modify the existing laws to be in tune with developing technologies. However, modification and codification of laws replacing existing laws would be esoteric and impractical.
“Even the change of nomenclature to Bharatiya Nyaya Sanhita Bill , Bharatiya Nagrik Suraksha Sanhita Bill and Bharatiya Sakshya Bill may look simple if abbreviations are changed to BNS, BNNS and BS. But it would be practically difficult to change the entire system,” he said.
“Precedents play an important role in delivering judgements. Precedents of high courts are binding on lower courts. The whole system of delivering justice will be affected. Modifications of stringent laws are essential and passing of Bills should be subject to judicial review,” he added.
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‘Not many changes’
However, Malayil felt not many changes have been suggested to the basic structure of criminal law.
“The presumption of innocence is still the basic structure of criminal law — the accused should be considered innocent until found guilty. Exceptions are allowed only in a few Acts, for instance, narcotics cases in which the possession of drugs itself is a presumption and the accused need to revert the presumption,” he pointed out.
“The basic structure has not been changed in terms of innocence. The accused need not prove that he is innocent. It is up to the prosecution to prove the case beyond reasonable doubt,” Malayil compared the draft Bills with international norms.
The senior advocate also highlighted another advantage. The amendment has suggested protective measures for a person falsely implicated in a case, and in cases of any excesses by the police or any other unformed officers. In such cases, human rights and other independent commissions could come to the aide of the individual.
“The CrPC is a procedural law and changes in procedures will take some time for anyone to understand. Again, any order passed by the lower courts will be settled by the higher courts,” Malayil explained.
He drew attention to the Information Technology (IT) Act to exemplify how courts could provide clarity in case of confusion.
“Almost all confusions and doubts over procedures involved have been clarified by the high courts and Supreme Court in their various judgements and observations. It is the duty of the court to clarify and settle the law in case of any confusion or any divergent opinion arise. It will be a continuing process,” Malayil explained.
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Why this hurry?
Former DGP and chairman of the Karnataka State Human Rights Commission (KSHRC) RK Dutta found merit in the Bills but felt they should not be implemented in a hurry.
“The draft bills have been put before Parliament now. I don’t understand the secrecy shrouding them. Why can’t they be placed on a larger platform, accessible to all stakeholders such as the police, prosecutors, the courts, and even the common man? When it is placed on public platforms, one could brainstorm, debate the pros and cons, and good suggestions could be considered and deliberated upon,” Dutta told South First.
Will speedy justice deter crimes?
Dutta also cited an example of an amendment made to an IPC Act in the Nirbhaya rape case.
“An amendment was made during the Nirbhaya rape case. Did it reduce the number of such crimes? Such questions remain unanswered. It is good that the amendments focus on speedy delivery of justice by giving the police a deadline for filing the charge-sheet within 90 days and requires the court’s permission to extend to another 90 days. If the chargesheet has to be filed within 180 days, the judgement should be delivered in 30 days,” he opined.
“As there was absolutely no consultation with any stakeholders when the new amendments were being made, the question is, who will deliberate upon whether the amended punishment would deter crime besides delivering justice faster,” Dutta sought to know.
Dutta also sought clarity and definitions to the proposed amendments. “For example, the offence of sedition has been removed. However, they have brought in some other section which does not say sedition, but which seems to be equal to it. It can be abused when it comes to taking up anything against anyone,” he said, adding such provision were vague and needed clarity.
“A lot of new provisions have been brought in — such as lynching or snatching — which were not considered earlier. These offences are increasing. It is good that they have been introduced,” Dutta said.
The former DGP lauded the government for retaining existing law that confessions made to the police are not admissible in courts. “They have retained the same provision that confession before a police officer cannot be admissible before the court under Section 25 of the Indian Evidence Act. However, under Section 27, recoveries made by the police with the confessions are admissible before the court,” he explained.
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Old regime for old cases
Will those cases that have been already registered come under the amendments? Dutta said the criminal justice system does not work in retrospective.
“The existing cases will continue under the old regime. Article 20 of the Constitution states that no criminal law can be brought in with retrospective effect,” Dutta explained. “The law comes into effect only after the President signs the Act and after a gazette notification is issued,” Dutta added.
Another former DGP ST Ramesh said the IPC, CrPC and Indian Evidence Act have been the bread and butter of the police and all other investigation agencies across the country.
“Learning, and getting trained in the new laws would be a humungous and challenging process for all stakeholders, the police, courts and the legal community. This will take some time for the police officers to get familiar with them,” he told South First.
Training for police
Ramesh said training sessions and workshops should be organised to familiarise the stakeholders with the new laws and nomenclatures.
“The police force is about one-lakh strong, out of which 30,000 to 40,000 are attached to the armed forces like KSRP and CAR. They don’t enforce these laws, but should remain educated and aware of the new laws. The major focus would be on civil police personnel, from constables to DGP. Everyone should undergo training,” he added.
The department should organise training programmes and workshops across the state and it should be an ongoing process. The police headquarters should issue detailed circulars highlighting the changes in the IPC, CrPC and the Evidence Act, which should act as a guide for the police force.
Training infrastructure should be created. “The department should also identify in-house resource personnel who are experts in law and can train others. External resource persons like judges, retired judges, senior criminal lawyers, legal luminaries also should be identified, he added.
Ramesh felt some software used in police investigation, courts, and by criminal lawyers would also undergo changes.
‘Saffronisation bid’
Senior advocate S Balan said the NDA government always brought in Vedic and the saffronisation elements to whatever they did.
Even the names are changed to Sanskrit. I feel it is an attempt to saffronise the Indian Criminal Justice System,” Balan told South First.
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