Criticisms of new criminal justice system

Source: The post criticisms of new criminal justice system has been created, based on the article “New criminal codes from July 1: A threat to citizen liberty, justice under the guise of a decolonisation project” published in “Indian express” on 29th June 2024

UPSC Syllabus Topic: GS Paper2-governance-Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Context: The article discusses the introduction of new criminal laws in India, from 1st July 2024, which replace old laws but retain many old provisions. It criticizes these laws for not being a true reform, increasing police powers, and risking civil liberties. It also highlights concerns about whether institutions are prepared to implement these changes effectively.

For detailed information on new criminal law reforms read Article 1, Article 2

What are the new criminal justice systems replacing the old ones?

The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) will replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act (IEA), respectively. These laws aim to update and decolonize India’s criminal law system.

What are the criticisms of the new criminal justice system?

1. Retention of Old Provisions: The new laws retain about 75% of the existing provisions from the old laws such as the IPC and CrPC. This calls into question the claim that the laws have been decolonized since a significant part of the legislation remains unchanged.
2. Increased Police Powers: Specifically, Section 187 of the BNSS increases the maximum police custody duration from 15 days to either 60 or 90 days. This represents a substantial extension compared to the limits set under previous laws like the UAPA, POTA, and TADA.
3. Vague Definitions of Crimes: The article mentions the introduction of vague offenses such as “false and misleading information” and “acts endangering sovereignty, unity, and integrity of India.” These sections lack clarity and could lead to discretionary enforcement by police, risking abuse of power.
4. Trials in Absentia: The BNSS allows for the prosecution and adjudication of trials against proclaimed offenders in their absence, which severely restricts the accused’s right to defend themselves—a drastic change from the previous system where only evidence could be recorded in the absence of the accused.
5. Ambiguity in Transitional Provisions: Section 358 of the BNS states that the IPC will continue to apply to offenses under the IPC, but it remains unclear if this only pertains to offenses committed before July 1 or also to ongoing proceedings, investigations, or remedies related to IPC offenses as of that date. This lack of clarity could lead to legal confusion and inconsistent application in transitional cases.
6. Handling of Ongoing Legal Proceedings: Sections 531 of the BNSS and 170 of the BSA clarify that ongoing appeals, applications, trials, inquiries, or investigations at the time the new legislation takes effect will be governed by the old laws (CrPC or IEA). This provision is crucial for ensuring continuity and fairness in ongoing cases but also introduces potential for interpretative challenges among different courts and jurisdictions, given the major legal shift.

Question for practice:

Examine the criticisms of India’s new criminal justice system reforms.