Enforcing new set of criminal laws poses challenges
THE Union Government has issued a notification to enforce the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) with effect from July 1. It is obvious that laws do not become operational in a vacuum. It requires a lot of preparation, including the creation of infrastructure and a framework for the rules, operating procedures, forms and formats. It needs to be examined how far the system is ready to give effect to the new penal statutes.
The criminal laws have been overhauled with the aim of meeting the demands of nyaya (justice) and nagarik suraksha (citizens’ security). Political rhetoric apart, the proverbial devil lies in the details, especially with regard to enforcing the legislation.
The new set of laws is said to be prospective in operation. Consequently, pending investigations and trials on the date of commencement would continue to be conducted as per the old procedures. It means that two parallel sets of laws would remain in force until the pending proceedings are concluded. This aspect alone has major implications and requires meticulous planning.
Professionals who are part of the criminal justice system, namely lawyers, police officials, prosecutors and judges, have to study and practise both the old and new sets of laws for at least a decade. Accordingly, the syllabus of law degree courses is to be modified and law books revised. Though investigators, prosecutors and judges are being trained under government-sponsored programmes to implement the new statutes, the training of lawyers has taken a back seat so far.
Besides training, it is imperative to frame new rules and revise the existing forms and operating procedures. Incorporating corresponding amendments in the relevant software and special laws is equally important. Many states have introduced amendments to the existing criminal procedures as per local needs. Inserting the same provisions in the BNSS would take time as it can be done only with the President’s assent. This process has not yet started in many states.
The procedural law contained in the BNSS has several provisions related to nyaya and suraksha, including the use of digital technology, community service, victim protection, trial in absentia, mandatory visit of forensic experts at the scene of the crime, time-bound disposal of case properties and videography of investigation processes. It would not be possible to give effect to these reform-oriented provisions unless the required infrastructural support systems and operational protocols are in place. It also calls for recruitment and training of the staff.
Several provisions of the BNSS cannot be put into practice unless relevant guidelines are formulated. Monitoring is required to examine the progress on this front. In order to bring in uniformity and procedural integrity, mobile phones are to be provided to investigating officers and magistrates for videography. The record-keeping assigned to designated police officers needs to be standardised. The protocol to serve summons and warrants through electronic means and documentation must be institutionalised. Rules to provide for attachment of proceeds of crime and its distribution among the victims should also be formalised.
Provisions relating to mandatory visit of forensic experts at the scene of the crime in heinous cases entailing punishment of more than seven years would require adequate manpower and infrastructure. It would be difficult for the states to create these facilities from their own resources. The witness protection scheme and rules to enforce the community service sentence are to be standardised and notified.
Besides the issues of infrastructure development and human resource training, there are administrative and managerial problems which require immediate attention. Almost all police stations in the country are connected with the Crime and Criminal Tracking Network and Systems (CCTNS) to access and share workable information with stakeholders. Upgrade of the CCTNS and other software having an interface with different wings of the justice delivery system and governance, including courts and prisons, would be a big challenge as two parallel systems have to operate side by side. This task requires close coordination between Central and state agencies.
Collection, compilation, comparing and sharing of data related to crimes and criminals are the key to ensuring optimum use of manpower and resources for effective policing. The National Crime Records Bureau is performing this task by publishing a report, Crime in India, every year. Till the pending cases are concluded, the NCRB has to prepare two reports comparing crime figures of both the old and new systems. Extrapolation of statistics of different origins is going to be a Herculean task.
The majority of the states are not financially sound. Assistance and allocation of funds by the Centre is going to be a crucial factor in determining the pace of implementation of the statutes. It is desirable that the Union Government take the lead in identifying areas where states need support and intervention. It is a given that states cannot tread this tricky path without handholding by the Centre.
The Centre should constitute dedicated teams for each area of concern to guide the states in removing bottlenecks in the implementation of the new statutes. At the same time, steps taken by the states towards enforcement also need a periodic review and stock-taking. Haphazard initiatives taken by states would only create confusion and complicate the transition process.
