Stop the Damocles’ sword of three new criminal laws from falling upon us, Indira Jaising beseeches new Union law minister

In a letter addressed to the Union Minister of Law and Justice, senior advocate Indira Jaising has requested delaying the implementation of the three new criminal laws, set to come into effect from July 1, urging that stakeholders at all levels must have an opportunity to debate and discuss its implications.

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THE three new criminal laws Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (criminal laws), set to replace the Indian Penal Code, 1860; Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively, are due to come into force on July 1, 2024.

Ever since the Bills were tabled in the Parliament last year, they have come under criticism from various quarters, most notably the legal community, for provisions that go against the grain of the criminal justice system in a constitutional republic like India.

Now, senior advocate of the Supreme Court and eminent jurist, Indira Jaising, has written a letter to the newly appointed Union Minister of Law and Justice, Arjun Ram Meghwal, raising concerns over the implementation of the three laws.

While congratulating the minister for his appointment, Jaising states in her letter that the criminal laws have reworded and reformatted the entire existing provisions, which now convey a completely different meaning from what they bear in the original laws.

The existing laws have existed for over a century now and their contents have been a matter of judicial interpretation at the hands of several high courts and the Supreme Court of India. The previous Modi government cited the colonial origins of the laws as the reason for the drastic and significant overhaul of the criminal justice system.

In the letter, Jaising points out that even if the three criminal laws are implemented, the existing laws will perhaps continue for another 20 years or more until pending cases governed by them are sorted.

She remarks: "In effect, we will be having two parallel criminal justice systems for the foreseeable future, which can range from 20–30 years."

This is known to be the average lifespan of a case in India.

Life and liberty

As per Jaising's letter, criminal laws deal exclusively with the matters of life and liberty and criminal harm that can be caused to an individual in different ways.

The laws also deal with civil liberties of the citizens, more particularly the freedom of speech, right to assembly, right to associate, the right to demonstrate and other civil rights, which Jaising says may be criminalised as a part of the law and order provisions under the criminal laws.

Impact of criminal laws on pendency cases 

Further, Jaising in her letter has states that the criminal laws may have an impact on the backlog of cases. Till now, no study has been conducted by the government to study the impact of the new laws on the pendency of cases.

Jaising has cited the data on pendency of cases from the National Judicial Data Grid, which according to her, paints a grim picture of an overburdened judiciary.

In a post on X (formerly Twitter), Indira Jaising wrote that the new criminal laws are likely to increase criminal litigation by 30 percent, which will be an additional burden to the existing backlog of cases. The judicial system may become unmanageable if the three laws are given effect, the letter further reads.

Lack of infrastructure

Jaising has raised concerns over the lack of efforts made to upgrade the infrastructure of the existing judicial system in her letter.

She has stated that no efforts have been made to train the courts at all levels to deal with the "vexed" constitutional issues of retrospective application of the criminal laws and how it would affect speedy access to justice.

While substantive criminal laws such as the BNS cannot be applied retrospectively, the provisions of the BNSS are procedural and could be applied retrospectively. This, however, will create an issue in pending cases as the question of which law will be applicable in a particular case will continue to arise. 

Jaising has requested that the implementation of the criminal laws be delayed till the judiciary at all levels, the investigation agencies, the government both at the Union and the state level and the citizens have an opportunity to debate and discuss its implementation.

She concludes by stating: "We, the people of India, have confidence that you will understand our concerns and address them promptly so that the Damocles' sword hanging on us does not fall on the nation on July 1, 2024."

Click here to read the letter.