Rollout of new criminal laws will be beset with challenges
THE three new criminal laws, namely the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) would come into effect on July 1. Chief Justice of India DY Chandrachud has hailed the new laws aimed at digitalising the criminal procedure and called them a significant step towards modernising the Indian justice system. A cross-section of the legal fraternity — including senior advocate Indira Jaising — has, on the other hand, raised serious concerns about the constitutionality of some of the provisions in these laws.
Opposition leaders, including Mamata Banerjee, are demanding that the new legislation be kept in abeyance until the newly elected members of the Lok Sabha approve them, arguing that the laws were passed in haste without a meaningful debate in Parliament, as a majority of the Opposition members were under suspension at the time.
Expressing concern regarding the validity of the new criminal laws at such a belated stage amounts to nothing more than a statement of missed opportunities. The laws were enacted after a three-year-long consultation process and wide-ranging deliberations with the stakeholders, followed by a thorough examination by the Parliamentary Standing Committee on Home Affairs. Suggestions were also invited from the masses through public notices on two occasions. The government, which is not yielding to any of these demands, seems determined to enforce the laws.
Concerns about the unconstitutionality of the new provisions do not hold water in view of the fact that changes in the BNS are mainly a reflection of the Supreme Court directions in the cases of Navtej Singh Johar vs Union of India (2018), Joseph Shine vs Union of India (2018) and P Rathinam vs Union of India (1994) as well as the Centre’s undertaking in the apex court in response to a petition challenging the sedition law, besides addressing long-pending national security issues. The objections to modifications in the BNSS and BSA also appear to be misplaced, as the amendments basically inhere digitalisation of the criminal proceedings and incorporate victim- and people-centric provisions, in addition to re-orienting the criminal procedures to meet the demand of quality investigations and speedy justice.
Notwithstanding the different opinions of informed stakeholders, implementation of the new statutes won’t be easy, as it involves creating a variety of infrastructure, imparting training, laying down rules and operating procedures, revising standard forms and inter-agency coordination to iron out operational issues. At the same time, what inspires confidence that the laws will be rolled out on time is the existence of an experienced and time-tested criminal justice system that has the tenacity to adapt to and adopt any change and find workable solutions to any problem with limited resources.
Another sign that the new laws would come into force as per the schedule is the fact that the police, prosecutors and the magistracy have undergone massive capacity-building training programmes, which are being sponsored and monitored by the Centre.
However, former law enforcers and adjudicators are sceptical. They argue that many crucial areas pertaining to the successful enforcement of the new laws are yet to be addressed.
There are several mandatory procedures in the BNSS, including videography of all searches, seizures and scenes of crimes and photography of case properties, that would require the use of electronics and digital technology at the outset. On the other hand, the investigators and adjudicators are yet to be equipped with appropriate gadgets and trained to use them to generate, secure and store the required digital outputs uniformly and in an admissible form.
Additionally, there are many other procedures — such as e-court proceedings and serving of summonses/notices through electronic means — that would need massive digitalisation of the courts, police stations and prisons, standardisation of protocols, recruitment and training of technical and support staff, financial resources and inter-agency coordination. The ground reality is that nothing substantial seems to have been done in this direction so far in most states.
Community service has been included in the list of punishments under the BNS. The eventuality of awarding this sentence to petty offenders may arise even on the very first day of the laws coming into force. However, no identified apparatus is in place to execute it. The agencies are not yet clear on the jurisdiction to give effect to this sentence.
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, a 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.
All wings of the justice delivery system need to identify areas where operational protocols and rules are to be framed urgently. Recruitment and training of a large number of technicians, law officers and support staff cannot wait further.
The upgradation and updating of the Crime and Criminal Tracking Network and Systems and other software having an interface with different wings of the justice delivery system and governance have not been completed so far. This cannot be accomplished by the states on their own, as it would require a lot of know-how and coordination with Central agencies.
It is a given that states cannot walk the tricky road of implementing the new laws without the crutches of the Central Government. They would need hand-holding, support and monitoring at every stage. The Central agencies are expected to take the initiative and coordinate with the states, as in ensuring a successful rollout of the laws lies at stake the credibility of the Centre.
