Potential Erosion of Civil Liberties, Increased Strain on an Already Overburdened Judiciary

Newsreel Asia Insight #253
June 16, 2024

As India gears up to enact three sweeping new criminal laws effective July 1, 2024, civil liberties advocate and Supreme Court lawyer Indira Jaising has sounded a significant alarm. Urging a delay in the implementation of these laws, Jaising points out not only potential constitutional infringements but also the risk of increasing the already considerable pressures on the judiciary.

The Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act are set to be replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS), Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Sakshya Adhiniyam (BSA). There has not been a judicial review on how these laws may infringe on civil liberties and impact the overburdened judiciary, says Jaising, a former Additional Solicitor-General, in a letter to Union Law Minister Arjun Meghwal, as reported by The Telegraph.

Jaising also wrote an op-ed on the issue, for The Indian Express. “These laws have been in operation for over a century and have received interpretations at the hand of the Supreme Court of India. Predictability and certainty of criminal laws is one of the fundamental principles of the rule of law. People base their conduct on laws in existence and modulate their conduct to avoid criminality. When there is uncertainty about criminal laws, the life and liberty of citizens is in grave danger as the consequence of violation of criminal laws is arrest,” she explains.

Jaising points out that the new statutes may infringe on freedom of speech and assembly, potentially criminalising these fundamental rights under vague new definitions. She expressed grave concerns about the redefinition of sedition in the BNS, which includes references to the “sovereignty and integrity of India” for the first time, potentially broadening the scope for charges against individuals involved in protests or riots.

She also warns that using both old and new legal rules at the same time could confuse every ongoing court case. This situation could last for 20-30 years, leading to two different criminal justice systems operating side by side. Additionally, while the main laws cannot apply to actions that happened before they were enacted, the new procedural rules could still affect current cases, possibly harming those being accused.

The BNS and BNSS bring major changes to legal procedures and rules. For instance, the BNSS requires initial investigations for some crimes, which might conflict with Supreme Court decisions that demand the immediate filing of FIRs (First Information Reports) for cognizable, or recognised serious, offenses. Jaising contends that these new procedural requirements could disrespect past Supreme Court decisions and threaten the freedoms these rulings aim to protect.

Jaising criticises the government’s failure to publish any studies on the new laws’ impacts on the existing backlog of cases, nor has there been any effort to upgrade the judicial infrastructure or sufficiently train judiciary personnel to handle these profound changes.

These concerns contrast with the recent introduction of a National Litigation Policy, which aims to lower legal expenses and reduce the government’s role in legal cases. Jaising argues that the new criminal laws, by potentially adding more pressure on the courts, could undermine the objectives of this policy.

The National Judicial Data Grid currently shows over 83,000 pending criminal cases, a figure that Jaising fears could rise by 30% due to these new laws. This increase could deny effective access to justice, further straining an already stretched system.

Jaising’s urgent plea to delay the implementation of these new laws calls for a debate and more thorough consideration of the laws’ far-reaching effects.