Last week, a PIL was filed in the Supreme Court, demanding stay on the implementation of the three new Criminal Code Bills passed by the Parliament. They became Acts on December 25 after receiving President Droupadi Murmu’s assent. Surprisingly, the bills were passed and enacted without any parliamentary debate as most of the MPs were under suspension.
In the petition, the appellant Advocate Vishal Tiwari has demanded the constitution of an expert committee to analyse and examine the three criminal laws. The petition claims that the laws have many shortcomings and discrepancies. It also claims that the three bills were withdrawn, and redrafted bills were produced with some changes, which were passed in Parliament.
To examine the viability of the said laws, the PIL further seeks directions to immediately constitute an expert committee under the chairmanship of a former judge of the Supreme Court and its members comprising judges, senior advocates and jurists.
The date to implement these three new laws will be notified before January 26, a senior government official said on Tuesday, adding that it will take nine months to a year for the three criminal laws to be implemented across the country, and a pilot project is all set to begin in Ahmedabad in the next two months.
According to Madhurima Dhanuka, Programme Head, Prison Reforms Programme, Commonwealth Human Rights Initiative “The three Bills, which are essential to overhauling the criminal justice system, were introduced in Parliament in August: Bhartiya Nyaya Sanhita (BNS) Bill 2023, Bhartiya Nagarik Suraksha Sanhita (BNSS) Bill 2023, and Bhartiya Sakshya (BS) Bill 2023. Unfortunately, reformation might not be as simple as suggested, particularly as the laws continue to lack provisions that are necessary to preserve citizens’ rights.”
On the implementation, she said, “The implementation of the three new criminal laws should be complemented with revisions to the crime statistics reported by the National Crime Records Bureau, India. Then only will one understand whether this magnanimous exercise results in any substantive gains for the justice system in India and more importantly the people entwined with it.”
“There is nothing ‘Bharatiya’ about the claim that three new criminal laws brought in by the Modi government are an act of throwing out the colonial relics and introducing laws based on Indian laws and traditions. All the 3 Codes replacing the IPC, CrPC and the Indian Evidence Act by and large retain the same old provisions while introducing new provisions in each of these laws,” said Dr V. Suresh general Secretary of People’s Union for Civil Liberties (PUCL)
“We should break one myth – that the criminal laws prevalent till now are the same old 1860’s laws. This is a lie. The Criminal Procedure Code was completely revamped in 1973 after a thorough study. It can longer be said to be a British or colonial law. Similarly, the IPC and IEA have also had numerous amendments made to them bringing them up to date. So there is nothing new barring some provisions which arm the police with enormous powers without balancing citizen’s rights by providing for increased accountability on the part of the police and state,” added Suresh.
The PUCLGeneral Secretary further said, Section 41A of the Criminal Procedure Code was introduced through an amendment to the CrPC in 2008. This provision is titled, “When police may arrest without warrant”.
“This amendment was brought about as a direct consequence of 2 of one of the most important judgments of the SC: the first is ‘Joginder Kumar vs State of UP’ in 1994, in which the SC said the power of the police officer to arrest is one thing, the need to arrest is a different issue which the courts can look at. The police officer need not arrest on all occasions; the police need to arrest only if 3 situations exist: (1) If the accused will run away, escape or elude justice; or (ii) if he/she will destroy evidence; or (iii) he/she will threaten or intimidate witnesses,” he said.
He elaborated, “This important case was followed by the ‘DK Basu vs State of West Bengal’ (1997) in which the SC considered widespread police abuse and torture and laid down protective safeguards including that the police officer should wear name label, inform the arrested person the grounds of arrest, in which case he is being arrested, inform relations or friends about where the person will be kept and so on. It took the human rights movement another 10+ years to demand that the government incorporate this in regular law, so that every police constable in the country will know the law because it is in the Criminal Procedure Code. This is because police constables and lawyers in distant courts may not have access to legal journals to read the latest case laws.”
“It was thus that Sec. 41 and 41A was brought in in 2008 in which the police officer has to write in the arrest memo the reason why he is arresting a person and this had to be submitted to the judicial magistrate who had to question the police officer about this. This gave valuable protection to the accused and his family members and his lawyers to question both the police as also the judicial magistrate, who may have mechanically remanded the arrested person called accused,” explained Suresh.
Suresh further added, “In the new BNSS, the provisions of Sec. 41A as regards identification of the police officer have been retained, but very importantly, the provision that the reasons for arrest, the arrest card showing that the accused was informed of reasons for arrest and the requirement of the Magistrate to check this and question the police have all been dropped.”
According to experts, another key issue is about police remand. In the pre-repeals CrPC police remand can be for a maximum of 15 days only, within the first 15 days of arrest. The police can ask for remand to a maximum of 3 times. If either the 3 times they ask for police remand is over or 15 days is completed, the accused had to be sent to judicial custody out of the control of the police. This was an important safeguard. Normally across India, this is the time when torture is commonplace. So when produced for remand extension, the accused will meet his relatives or lawyer and complain about torture, etc. and ask them to initiate corrective action.
Experts believe the new law provides that even after the first period of police remand is completed, and the first 15 days of arrest have passed by, at any time during the 60 or 90 days, the police can ask for police remand by only writing an application giving reasons why they need to take him on police custody again. This is a dangerous provision and is bound to be badly misused. What the 3 new laws have done is “to change the character of the Indian state from a de facto police state into a de jure police state!” This is a dangerous slide and has far-reaching implications for our democracy.