Concerns as India replaces colonial-era laws with new criminal codes | Courts News

Opposition parties and lawyers in India are raising concerns over the government replacing colonial-era criminal laws with new legislation, saying the move risks throwing the criminal justice system into disarray.

India on Monday implemented an overhaul of the criminal laws, which Prime Minister Narendra Modi’s government said would make the country more just.

The Bharatiya Nyaya Sanhita, 2023 has replaced the Indian Penal Code, 1860; the Bharatiya Sakshya Adhiniyam, 2023 replaces the Indian Evidence Act, 1872; and the Bharatiya Nagarik Suraksha Sanhita, 2023 has been implemented in place of the Code of Criminal Procedure, 1882.

The new laws were approved by parliament in December during Modi’s previous term, with the government saying they aim to “give justice, not punishment”. It says they were needed as colonial laws had been at the core of the criminal justice system for more than a century.

Among the key changes is replacement of the sedition law frequently used as a tool of suppression, after its enactment under British colonial rule to jail Indian freedom fighters.

Laws dealing with sexual assault have been strengthened, while a previous law criminalising sodomy has been removed. Other key changes include the amount of time police can hold a suspect rising from 15 days to 60, and, in some special cases, up to 90.

No ‘worthwhile debate’

India’s top judge DY Chandrachud praised the new laws as a “watershed moment for our society”.

But the opposition said they were rolled out without a discussion in the parliament, while other critics said it could worsen an already glacially slow pace of justice.

Congress MP and former federal minister P Chidambaram said the parliament did not hold any “worthwhile debate” before passing the crucial laws. He said there was only marginal improvement in the new laws, which could have been introduced as amendments to existing laws.

“The initial impact will be to throw the administration of criminal justice into disarray,” he posted on X.

 

A week before the laws came into effect, West Bengal state’s chief minister Mamata Banerjee, also a key opposition leader, wrote to Modi, raising concerns about the laws and asking to defer their implementation, saying they were passed “in an authoritarian way in the dark hours of democracy”, local media reports said.

In an editorial, the Indian Express newspaper said criminal justice reform should not be “a one-time solution or one that just takes place in the books”, and called for police reform and addressing gaps in judicial infrastructure.

But Home Minister Amit Shah rejected the concerns, saying the laws “were debated for three months”.

“It is not fair to give political colour to this big improvement happening after centuries. I ask the opposition parties to support this legislation,” he said.

“About 77 years after independence, our criminal justice system is becoming completely indigenous and will run on Indian ethos,” he added. “Instead of punishment, there will now be justice.”

‘Crucial safeguards omitted’

Criminal cases registered under the repealed laws before Monday will continue to follow them, Shah said, adding that the first case logged under the new law was that of a motorcycle theft in the central city of Gwalior, registered 10 minutes after midnight.

But many lawyers say the new laws could create confusion, as they will run parallel to those on trial charged under the previous system.

Supreme Court lawyer Nipun Saxena told the AFP news agency that the new laws give power to the police to decide on a case when previously it was up to a judge to decide if a case could proceed to trial.

“Judicial functions cannot be transferred to police,” Saxena said.

The code has also been modernised – requiring video recordings to be made at the scene of serious crimes, as well as updating admissible digital evidence.

Saxena warned the changes could increase the number of cases awaiting trial by “30-40 percent”.

India already has a notoriously slow justice system, with millions of cases pending in the courts at any time.

“Many crucial safeguards have been omitted completely,” Saxena added, noting that the new laws violate “at least four articles of the constitution and many important judgements of the Supreme Court”. He said these relate to procedural safeguards, protection against illegal detention, and laws against self-incrimination.

After independence in 1947, India inherited the 19th-century penal code imposed by British rule, although it has been overhauled by previous parliaments.

“The claim that the changes decolonialise the criminal procedure code is spurious,” Saxena said.

“In the medium term, numerous challenges to the laws will be instituted in various courts,” said Chidambaram.

“In the long term, further changes must be made to the three laws to bring them in conformity with the constitution and the modern principles of criminal jurisprudence.”