Editorial: Implementation challenges

The three new criminal laws, which take effect from July 1, must address concerns over certain provisions

Though billed as the transformative measures to overhaul the country’s criminal justice system, the three new criminal laws — Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) — pose enormous challenges in implementation in view of the widespread concerns over certain provisions and also the lack of proper debate. The laws, replacing the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act, were rushed through parliamentary approval without having to face critical questioning. After the Presidential assent in December last year, they are to take effect from July 1 this year. Upgrading forensic infrastructure across the country, technology adoption, training and skilling police officers and lawyers, maintaining the balance between old and new legal provisions, especially in cases where section numbers have changed, and ensuring uniform application of the new laws across all States and union Territories are some of the administrative challenges in enforcing the new laws, ostensibly aimed at ending the colonial hangover and making the criminal justice system in tune with the modern times. However, there is a need to address several concerns expressed by the civil society organisations and some State governments. The key among them is the sweeping powers given to the central government agencies to immobilise even a legitimate, non-violent dissent. There is also the possibility of the laws being misused to terrorise civilians and public servants as the government would get arbitrary and virtually unlimited power to selectively arrest, detain, prosecute and convict practically anyone they choose.

The new laws seek to regularise extraordinary powers which should normally be available only in legitimate states of emergency as already provided in the Constitution. More importantly, the sedition provision makes a comeback in a new avatar, though the Centre had given an undertaking to the Supreme Court in the past that the draconian, colonial-era law would be dropped altogether. Section 152 of the BNS, replacing the IPC, seeks to punish perpetrators of acts ‘endangering sovereignty, unity and integrity of India’. Though the renamed legislation removes the words “disaffection towards the Government established by law in India” from the old Section 124A of IPC, it actually amounts to expanding the definition of what constitutes sedition and giving it a new nomenclature. It is incongruous for a liberal and free democratic country to have a sedition law, in any form and nomenclature, that fights its own citizens. In the absence of essential operational protocols, it would be difficult to enforce some important provisions of the BNSS, including those related to witness protection, trial in absentia, serving summonses/notices through electronic means, seizure of the proceeds from a crime and its distribution to victims, time-bound disposal of case properties and videography of various stages of an investigation, despite the clear mandate of the law for the States to frame rules instantly.

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