The first FIR (First Information Report) under the new criminal laws was registered in a police station in Gwalior, Madhya Pradesh, at 12:10 am, on July 1, ushering in a new era for the criminal law regime in India. The old 19th century laws namely the IPC (Indian Penal Code), CrPC (Criminal Procedure code), and the IEC (Indian Evidence Act) are replaced by BNS (Bhartiya Nyaya Sanhita), BNSS (Bhartiya Nagarik Suraksha Sanhita) and BSS (Bhartiya Sakshya Adhiniyam) respectively.
The Criminal justice system (CrLJ) rests on four pillars: Police, Prosecution, Prisons and the Judiciary. Its efficacy lies in ensuring that the common citizen is duly protected from arbitrary arrests and detentions and that his basic rights under the Constitution are guaranteed. Hence it is not only plain laws but also enabling systems and procedures in the four pillars which are responsible for allowing a person to enjoy his freedom of speech and way of life in a democracy.
At the outset, the welcome change in the new set up is the ease of filing FIRs for the common man. Any crime can be reported at any PS (Police Station), as per the convenience of the victim. It will be incumbent on the PS to transfer the FIR to the concerned PS under whose jurisdiction the crime is committed. Besides, the online facility of filing the FIR will also be very convenient for the public.
The new system lays great stress on technology, to assist investigation and prosecution and in the court trials too. The crime scene has to be filmed and all searches and seizures have to be recorded on camera. Vehicle thefts in Delhi are seeing better investigation because each venue of crime is being recorded on mobiles, requiring the Investigating officer (IO) to go to the spot and make enquiries instead of just making entry in the lost vehicle list. The new laws retain provisions for mandatory videography of police statements and audio-video recordings of vulnerable victims with physical or mental disabilities. Audio-video recording of rape victims is also mandatory. The electronic evidence collected during investigation is admissible in court and the entire chargesheet in digital form can be filed after completion of investigation.
Further, forensic science will play a much greater role in investigation. In grave crimes, visit of forensic science team to the spot is a must for collecting evidence. This would enable marshalling of evidence in a proper form in the court. The Union Cabinet recently gave approval for establishment of campuses of the National Forensic Science University (NFSU), establishment of Central Forensic Science Laboratories (CFSL) and enhancement of existing infrastructure of the Delhi campus of NFSU, with a total financial outlay of Rs 2254 crores from 2024-25 to 2028-29.
Adding mob lynching as separate offence in BNS is a timely reminder of the social fault lines that tend to surface from time to time. The punishment is also harsh, serving a clear warning to the miscreants who are polarizing society with such actions. The new Nyaya Sanhita also defines terrorism and organized crime despite the special laws already made for them like the UAPA (Unlawful Activities Prevention Act) and MCOCA (Maharashtra Control of Organized Crime Act) respectively. To control the menace of hit and run cases, it has been made a new offence with enhanced punishment and economic offence is also defined in the new criminal law.
In addition to stress on technology for better investigation and protection of human rights, clear timelines have been given for period of investigation, court trials and the final judgement, which would come as a huge relief to those seeking justice. Courts have to give decisions within 45 days of completion of hearings and charges in a trial have to be framed within 60 days of the first hearing. A welcome beginning is that no arrest would be made for crimes with punishment of less than 2 years and the award of community service as punishment for petty crimes.
Taking note of the present-day realities, there is a new chapter on women and child related offences. While death sentence or life imprisonment has been prescribed for gang rape of a minor, buying and selling of a child has been made a heinous offence. Medical reports of rape victims must come in 7 days and all hospitals are mandated by the new laws to provide free first aid or medical treatment to the victims of crimes against women and children. Such victims are also to be kept informed of the regular progress of their cases within 90 days.
While the new laws have been welcomed for the attempt towards decolonization and simplifying the criminal justice regime, concerns have also been raised from certain quarters over some changes. Supreme Court struck down on the Sedition Section 124A IPC, but it has reappeared in a different form in the new law under Section 152 BNS. Detractors argue that this could be misused against freedom of speech in some cases. Others have questioned the need of redefinition of terrorism, organized crimes in the new laws when there are already special Acts to deal with them and where they have been defined. Another matter of concern is the period of Police remand which remains 15 days but can be distributed over first 40 or 60 days of investigation. This will make bail hard to get from the courts. Lastly, the option given to the police to do a preliminary enquiry before registering an FIR has also been questioned by the experts.
Management of any change is extremely important, especially when it concerns the criminal justice system.
First the awareness program envisaged by the government has to be carefully monitored so that it reaches the farthest sections of the public. The police stations are already on the job, holding meetings in their areas with various committees, organizations and associations.
Secondly, the stress on technology entails huge expenditure in the coming years since the present infrastructure is woefully inadequate. Forensic science units and teams with vehicles will have to be established in each of the 800 odd districts of the country.
Third, the training of the police officers, prosecutors have to be done in a sustained manner to meet the new demands and changes in laws. To adapt to new technology, they have to update themselves with audio-video recording with their mobiles, maintenance of digital records etc.
For successful implementation of new laws, the police which is the main agency to interpret and implement them have to be geared up to embrace the change. It is imperative now to implement the Supreme Court directives of introducing the Model Police Act by the various States and ushering in the reforms related to fixity of tenure of police officers, appointment of Directors General of Police (DGPs), institution of Police complaints authority, police establishment board and the state security commission. Besides, a number of internal reforms are called for within the police department to be initiated by police chiefs and the state governments. Lastly, Police being a state subject, the state governments will have to apportion larger chunk of the budget to police to improve infrastructure and induct new technology for implementing the new laws. Centre modernization grants and special schemes would not be enough to achieve the targets set for 5 years to be fully enabled in digital mode and be well equipped with the forensic infrastructure.
Restructuring of the prosecution agency is called for. Much greater reliance on prosecution work is needed for filing a well compiled chargesheet to be presented to the court. The world over, prosecution guided investigation is conducted to cover all gaps and lapses before the charges are filed before the court. In India, there is negligent support of the prosecution in investigation and the prosecutors also lack the requisite caliber to argue in court before better prepared and known defense lawyers and judges.
According to the Article 21 of the Constitution, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. This right is available to all citizens and all laws in India are subject to these rights given by the Constitution. Hence there cannot be an illegal detention or arrest of any citizen. The right of a prisoner is speedy trial is also to be protected.
The implementation of new laws will ultimately be tested against these basic principles. After all, laws are made for the common man to ensure liberty and justice in a democracy. The four pillars of the criminal justice system will have to strive towards faithful implementation of new laws under the ambit of article 21 of the Constitution.
ABOUT THE AUTHOR
Yashovardhan Azad is Chairman of DeepStrat, a former Central Information Commissioner and a retired IPS officer who served as Secretary, Security, and Special Director, Intelligence Bureau. The views expressed are personal.
