New Indian criminal laws spark controversy and protests

(Photo: Shireen Bhatia/CT India)

The newly implemented criminal laws in India have already led to their first cases. On 1 July 2024, Delhi police registered the inaugural case under the Bharatiya Nyaya Sanhita (BNS) against a street vendor, charging them under Section 285 for negligent conduct concerning fire or combustible matter. In a more high-profile incident, an FIR was filed under Section 79 of the BNS against Trinamool Congress MP Mahua Moitra for alleged "derogatory" remarks against National Commission of Women chief Rekha Sharma, marking the first instance of a politician being booked under the new laws.

These cases come as India's criminal justice system undergoes a major overhaul, with three new laws coming into effect on 1 July, replacing century-old British-era legislation. The BNS, Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) have superseded the Indian Penal Code (IPC), Code of Criminal Procedure and Indian Evidence Act, respectively.

The Indian government, led by Home Minister Amit Shah, claims these laws aim to promote speedy justice and remove colonial influences. However, the changes have ignited widespread debate and criticism from legal experts, opposition politicians, and human rights organisations.

Key changes and new provisions

The new laws introduce several notable changes:

1. Zero FIR: Complainants can now file First Information Reports (FIRs) at any police station, regardless of jurisdiction.

2. Electronic reporting: Incidents can be reported through electronic communication, eliminating the need to visit a police station physically.

3. Mandatory crime scene videography: For serious offences, forensic experts must visit crime scenes, and evidence collection must be videographed.

4. Expedited investigations: Probes into offences against women and children must be completed within two months.

5. Electronic summons: Courts can now serve summons electronically, expediting legal processes.

6. Witness protection: State governments are mandated to implement witness protection schemes.

7. Exemptions from police station visits: Women, individuals under 15 or over 60, and those with disabilities or acute illnesses can receive police assistance at their residences.

8. Free medical treatment: Victims of crimes against women and children are guaranteed free first-aid or medical treatment at all hospitals.

Concerns and criticisms

Despite these seemingly progressive changes, the new laws have faced significant criticism:

1. Reintroduction of sedition: While the Supreme Court had suspended the use of the colonial-era sedition law, the BNS has reintroduced it under Section 153, with a broader definition that critics argue leaves room for misuse.

Speaking to Christian Today, Advocate Rohit Singh from Uttarakhand said, “The new laws have brought back provisions which have been discarded the world over. The potential for misuse is very much there.”

2. Extended police custody: The BNSS allows police to hold accused persons for up to 90 days, a significant increase from the previous 15-day maximum. This has raised concerns about potential human rights abuses.

Singh was very critical of this particular provision. "The new laws allow police to keep accused individuals in remand for 90 days, a significant increase from the previous 15-day limit. This change effectively sidelines the judicial process," he said.

3. Ambiguous bail provisions: The new laws provide limited guidance on bail applications, potentially making it more difficult for accused persons to secure release.

4. Trials in absentia: The provision allowing trials to proceed without the accused present has been criticised as regressive.

5. Data protection concerns: The BSA allows for the admissibility of electronic records as evidence, which some worry could be misused in the absence of robust data protection laws.

Political and legal reactions

The implementation of these laws has sparked varied responses across India's political landscape. In Tamil Nadu, Chief Minister MK Stalin has ordered the formation of a committee to review the new laws and propose state-level amendments. The committee, led by retired Madras High Court Justice M Sathyanarayanan, has been given one month to submit its report.

Stalin had previously written to Union Home Minister Amit Shah, urging the Centre to defer enforcement of the laws. The Tamil Nadu government has raised concerns about the Sanskrit names of the new laws, arguing they go against the Constitution. They also claim that no proper debate was held in Parliament and state governments' opinions were not considered.

Legal professionals have also voiced their concerns. On 8 July, lawyers across India held protests against the new criminal laws, arguing that they might overburden the judicial system. Two lawyer associations in Tamil Nadu, representing over 13,000 members, announced plans to boycott court proceedings in protest.

"I have heard that nearly 500 lawyers have surrendered their papers, and about 40% of advocates from various courts are vary of practicing law now. These sweeping changes appear to have dealt a severe blow to the legal profession," lamented Singh.

Delhi-based lawyer Shadan Farasat commented, "It only increases and complicates work for lawyers," adding that many provisions will need to be interpreted afresh by courts, potentially increasing litigation.

Human rights concerns

Amnesty International has strongly criticised the new laws, stating that they "would have debilitating consequences on the effective realisation of the rights to freedom of expression, association, peaceful assembly, and fair trial." The organisation argues that the government's claims of removing sedition laws are untrue, and instead, these laws have been reintroduced with increased minimum punishments.

"All power has been given to the police, raising concerns about potential human rights violations given the political pressures often faced by law enforcement," said Singh.

Amnesty also raised concerns about the BNSS allowing police to seek 15-day custody of an accused any time before the completion of 40-60 days of the allowed remand period, warning that this lack of clarity could lead to torture and other ill-treatment.

Implementation challenges

Legal experts have highlighted potential obstacles in implementing the new laws, including logistical issues, the need for judicial capacity building, and ensuring fair access to justice. There are concerns about the readiness of various criminal justice system entities across different states to adapt to these significant changes.

Critics argue that thorough training and preparation are crucial for law enforcement officers and court authorities to effectively understand and apply the new rules. Some have called for a comprehensive and impartial evaluation of the criminal justice institutions' readiness before fully implementing these laws.

Others like Singh who is also a Christian are worried about how the laws would be misused against the community. "Under these new laws, if the police arrest a Christian, they can keep them in remand for 90 days without judicial intervention, so there are concerns about potential religious persecution getting aggravated," he said.