Criminal Justice Reboot-12: What senior lawyers have to say about the three new laws
Criminal Justice Reboot-12: What senior lawyers have to say about the three new laws
The three new criminal laws that come into effect from July 1 signify a transformative moment for the criminal justice system in India. Ever since the three bills were introduced in Parliament last year, they triggered a robust debate, with the roll-out of these laws eliciting mixed reactions both against and in favour of the overhaul.
As the largescale changes become a reality from Monday, India Today spoke to senior lawyers to understand how they see the implementation of these new laws.
According to Senior Advocate Kapil Sibal, instead of getting rid of our colonial legacy, we are not only perpetuating it but also making our laws far more oppressive.
Earlier this month, Sibal, in a conversation with India Today, said that the three new criminal laws should be reconsidered by the new government and ensure that they are reasonable.
"If these are implemented, they are much worse than the colonial laws that were framed, which I am against," Sibal had said.
Senior Advocate Indira Jaising had earlier told India Today that at this point of time, we will have two parallel justice systems running in the country and the new criminal laws are likely to increase criminal litigation by 30 per cent, which will be an additional burden on the existing backlog of cases.
Senior Advocate Rajeev Dhavan says the new criminal laws were not necessary, pointing out that the titles in Hindi are not acceptable.
He added that while the provision on sedition is gone, anti-government and other offences are reinforcing the totalitarian state, as is pre-trial detention. The correct procedure was to review the existing laws and not abolish them.
"The CrPC was reformed in 1973. This expensive farce is part of a larger plan to detain and punish people," he said.
Senior Advocate Arvind Datar said there was no need to touch the IPC and Evidence Act as these laws have stood the test of time. He added that it is going to create practical difficulty as people will have to virtually relearn the law.
"The Companies Act was replaced. What did you achieve?" he asked. Datar said the government could have first implemented the laws in one state, to see how they worked out, and then implement it pan-India.
Saying that the language issue may also flare up, he pointed out that under the Constitution, the title of any bill has to be in English.
According to him, law reform is not making a new law, and reform should not be in law but in implementation of law.
"Ultimately, the law is meant for citizens, a person who is arrested who may be innocent, how does it help him at all? It makes matters worse as anybody can be put in jail for 60 days. Instead of promoting liberty, you are curtailing liberty. On the one hand, the President says they condemn the emergency as human rights are violated, but these laws are the same, no? Worse, a person has no remedy," Datar said.
Datar added that the real problem now is that it is very difficult to get bail at the lower court stage, since the judges are hesitant as they may face some vigilance enquiry.
"In the Madras High Court, every day the bail judge decides 200 cases. In every state, 150-200 bail cases are decided by high court judges every day. Why should it come to high court for some petty liquor cases, or small offences? That has to be addressed, not just changing definitions or section numbers," he said.
Senior Advocate Sidharth Luthra said that while it is too early to say how the new laws will work, he finds the philosophy behind the new laws both reformative and deterrent.
Luthra added that the new laws are a restructuring exercise, and there is easing of evidentiary restrictions while applying the Act even to court-martials, and there is certainly ease of operation for investigators. The deletion of certain offences and community service are a notable change.
With regard to interaction between the new code and existing laws like the UAPA, Luthra said that terrorism and organised crime exist already in UAPA and some state laws such as MCOCA.
"There is a concern about the absence of safeguards as in those laws. Yet, the reverse burden of proof is not available to the prosecution, and also there is the absence of restrictive bail conditions, which is beneficial to the accused," he said.
Senior Advocate Sanjay Hegde stated that the criminal laws benefit from certainty, and the new code, passed in a hurry with no discussion in Parliament, will inject uncertainty and chaos into a tottering system.
"Every section is up for grabs and re-interpretation. There has been no training at the first level of the police station, where the basic documents like the FIR that determine a trial are filled up," he said. He added that the codes enhance police powers to an unconscionable level at the expense of the civil liberties of citizens.
Senior Advocate GV Rao called the new legislation on criminal laws and adducement of evidence replacing the British-inducted laws an "extremely welcome step".
According to him, regular law reforms are a sine qua non of a vibrant democracy. There have been 89 Law Commission Reports on the subject of criminal law reforms, and the new laws are a result of all those recommendations. However, he added that there may be a need to further review them in future as well.
"The idea is to eschew archaic legal architecture and bring in a more modern version which is applicable to our society. Criminal laws have a great responsibility to be reformative in a big way rather than just being punitive. Modern scientific tools of investigation are also to be adopted, taking into account vast technological developments globally," he added.
Senior Advocate Sanjoy Ghose called it a "mindless exercise" simply to earn someone a place in history as being the new lawgiver of Amritkaal. He added that the changes the new laws propose could well have been effected through an amendment.
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