Legal Remedy

IT WAS JUST another night for Pankaj Kumar, son of Kailash Rai, as the 23-year-old street vendor stood behind his cart under a foot over bridge of New Delhi Railway Station when he suddenly found himself becoming part of Indian history. Or at least Indian legal history. At 12.15AM, the police filed a case against him. Except that it wasn’t under the Indian Penal Code (IPC) but the Bharatiya Nyaya Sanhita (BNS). The media reported that he was the first ever Indian to be charged under this new law that was replacing earlier colonial-era ones that governed criminal jurisprudence. The section was 285, which says: “Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to five thousand rupees.” On the scale of things one could be charged with, this is not much but it turned out to be Kumar’s lucky day. Because which government in its right mind wants to be remembered for bringing in an overhaul of outdated laws, and then beginning its implementation through a poor man just going about his daily work? Home Minister Amit Shah soon announced that using provisions under the very same new law, the police had reviewed the case and dismissed it. Instead, a real crime, of a motorcycle theft in Gwalior, that was registered at 12.10AM, was the first case regis­tered under the new law.

The three new laws—BNS, Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Bill (BSB)—that replaced the Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and the Indian Evidence Act on July 1, make sweeping changes to the country’s decades-old criminal justice system. They change not just various penal provisions, but seek to transform various facets of our criminal justice system, from building more forensic and technological interventions into our investigation-gatheringprocesstopushingformoretime-boundresolutionsand making the entire legal apparatus more capable of dealing with the modern nature of crimes.

Ashwani Dubey, advocate, Supreme Court, and author of the recently published End of Colonial Laws, a book about the new laws, says that the IPC had not kept up with the times because it was drafted way back in the 19th century. This is especially true now given how much technology has infringed on society.

“Laws drafted during colonial times by the Britishers fail to reflect the complexity of rapidly evolving society today. Issues like cybercrime, white-collar crime, organ­ised crime were either non-existent at that time or ill-defined in past legal frameworks. There was no comprehensive code that was able to cater to the problem of terrorism, etc. Even the Indian Evidence Act was also drafted during the British era and it needed to address digital evidence, CCTV footage, forensic science laboratories, and other issues. Sentencing structures were also often inadequate. Penalties might not be sufficient to deter certain crimes or reflect the severity of offence,” he says. He gives the example of chain snatching. The earlier penalties did not envisage it could potentially lead to death because of how it is done today. The criminals come on motorcycles at high speed and snatch the chains from women walking on the road, chang­ing their nature to a violent crime. “It should be treated like an attempt to murder. But that was not in the IPC earlier. There are many emerging issues like stalking, sexual harassment in the online sphere, and hate crimes driven by new forms of prejudice. We needed a law that was able to cater to today’s problem and also which could be relevant for the future,” he says.

Namit Saxena, an advocate at the Supreme Court, in fact, points out that our new laws shift the focus of our crim­inal justice system from the prosecutor to the victim. “Our laws were primar­ily written from the perspective of the prosecutor. The CrPC, for instance, in 1973, and subsequently, through some amendments, gained some victim-centric approach, but largely, it had little concern about the victim. The primary concern was because the state has failed to prevent a crime, the state was now duty bound to detect, ivestigate and pros­ecute the criminal,” he says. “The most important transition with the new laws is that when you read the new sections and provisions collectively, it gives an idea that this is now from the perspec­tive of protecting common citizens.” Giving the examples of how, according to these new laws, investigative officers need to provide routine information to the complainant about the case, and that a victim is heard in court before the prosecution withdraws a case with the court’s approval, Saxena says, “Earlier it was understood that the role of the victim was just to report a crime or the role of a complainant or informant was to report it. Otherwise, your job as an informant was over. But now, there are a lot of rights of the victim. So, this is a big transformation in how we understand criminal procedure in India.”

Dubey finds some changes particularly important. One of them is that trials can be held in absentia. In the CrPC, if an accused is not traceable, then sections 82 and 83 could be used to declare him an absconder and his property seized, but not much beyond that. “There was no law that punishment can be given unless the person is arrested. The cases used to hang in the courts from one year to another. Now, at least there is action in absentia. Courts can award punishment despite the person not being there, according to the BNSS.”

Another welcome new change is the zero FIR concept, where a complainant can get an FIR registered at any police station and not just where the offence was committed. Earlier, when the police weren’t sure of the jurisdiction where the crime was committed, the case went into a limbo. That has been addressed now. “Earlier also, there was a zero FIR, but it was not mandatory because the policemen used to take a ribbon and calculate that this portion is in my jurisdiction, this portion is in your jurisdiction. So, the court cases used to hang for months over which police station has the exact adequate jurisdiction. The zero FIR concept now is that when a complaint is received, the police is bound to register it and may transfer it to the concerned jurisdic­tional police station within 24 hours.” Yet another change is the electronic FIR, which means somebody can email a complaint and need not go to the police station. That, he believes, is also a land­mark move.

It’s late in the night on July 1, the first day of three new criminal laws coming into force, but Nipun Saxena’s phone cannot seem to stop ringing. “It’s just been chaos,” says Nipun, who works as an advocate in the Supreme Court. Most of these calls have been to clarify the confusion that has arisen in individual cases with the new laws coming into effect. One was for an individual whose 15 days of police custody were coming to an end, but who now worried if the new law would allow the police to detain him for longer. While the earlier CrPC permitted the police to detain an individual for a maximum of 15 days in police custody, any further detention having to be one under judicial custody; the new BNSS seemed to make the suggestion that an individual could now be detained beyond 15 days. Shah has however recently claimed that the cap of 15 days will still remain. Another caller wanted to know from Nipun if a bail application, for an individual being tried under the older law, now needed to be made under the new law. Yet another was about a case, where the police investigation had been completed, but the trial was yet to start. Will the investiga­tion now have to be reworked to fit the new law, or can the case continue under the old law? “So, you see,” Nipun says, “Multiple problems and questions will be faced as you go forward now.”

Legal experts like Nipun expect many more moments of chaos and confusion in this transition phase where the old laws give way to the new. What about cases where the crimes were committed on June 29, when the country was protected by the older set of laws, but got reported only on July 1, when the new law came into force? What about continuous offences, where a person, for instance, was kidnapped sometime last month and remained illegally confined even as the new laws kicked in? “The courts will have to decide which law is applicable,” Nipun says, as he talks about the confusion that might arise from con­tinuous offences. “Would it be the law when the offence was first committed? Or would it be the law when you approached the police?”

Not all of this is a surprise. Some teething issues, given the scale of the changes being introduced, were always expected. Dubey, for instance, thinks there might be short-term challenges as the system adapts to the new laws but not any major hurdles because even though section numberings will change, many of the offences remain the same. “Like murder was under some other section in the IPC, here it is in another. So, sections (numbers) have to be dealt with and they’re capable enough to tackle these problems. These are small issues. Technology has evolved and computers are there to assist.”

But some think the chaos won’t subside anytime soon. “That transition phase is going to go on for at least 20 or more years because unfortunately, that’s the gestation of a criminal case in India,” Nipun says. What will occur in these 20 or so years, law experts such as Nipun believe, is that there will be two sets of cases running concurrently in our courts, one involving older cases filed under the old set of laws, and another involving cases under the new laws, and this is going to further burden our courts. “That burden is definitely going to happen. No way it won’t happen,” says Kumar Askand Pandey, a law professor at Ram Manohar Lohiya National Law University in Lucknow. Pandey has spent a lot of his time in recent months holding workshops to train police and judicial officials in different parts of Uttar Pradesh and elsewhere, and he describes a sense of both anticipation and concern among them.

Pandey brings up the sections which allow first-time offenders accused of stealing something worth `5,000 or less to not be imprisoned, and differential treatment in acts of negligence that have caused some confusion among police and judicial officials he has interacted with. “A police officer brought this up with me recently. When thefts are committed, who is going to decide, and at what stage, the value of a property that has been stolen? Are police stations equipped with the data of all criminals to know if someone is a first-time offender? And in cases of negligent acts leading to deaths, there is now differential punishment. If a doctor is negligent and that negligence leads to the death of a patient, the doctor is still liable to be punished with two years’ imprisonment. But an engineer who is negligent in say fixing a machine that leads to the death of a person who is working on that particular machine, he would be liable to be punished with five years’ imprisonment. Now, this is clearly discriminatory,” he says.

The new laws have particularly kicked up a storm over some aspects. These involve bringing back sedition—something which the Supreme Court had put on hold and the government had said it would have a relook at—in another form, and according to critics, making its definition wider and looser. Another is the absence of any provision like that of Article 377 of IPC, which had partially been read down earlier to decriminalise consensual sex among same-sex partners, but which was still used to deal with cases where men and transgender individuals had been raped.

Some have argued that in the effort to make our legal system more efficient, the new laws end up giving far too much arbitrary powers to the police and curtail individual freedoms. One of the new provisions that have worried many is the one that asks investigating officers to conduct a preliminary inquiry before an FIR is lodged for any case that might draw a punishment between three and seven years for the accused. “Prior to 2014, police officers used to rely on this ghost of a preliminary inquiry. I call it ghost because there is no reference to such a procedure in the CrPC. The police would use this practice to shirk their responsibilities from registering a case. It also institutionalised corruption, and allowed political clout and other extraneous influences to gov­ern the discretion of the police officer. This was brought to an end by the Supreme Court in 2013 [in the Lalita Kumari vs State of UP case]. The new law now brings this practice back and takes away the invaluable right of the complainant to get his case registered,” Nipun says.

He expects this new provision to be harmful for both complainants and accused. While the complainant might be made to run from pillar to post to get his complaint registered, the police will now not be compelled to provide an FIR or notify an accused about the accusation (since no FIR has been filed) before calling him for a preliminary inquiry. “The accused will not know in what capacity he is being called. He could be a witness or an accused. He might even self-incriminate himself,” Nipun adds. According to Pandey, the period of 15 days when a preliminary inquiry is to be conducted before lodging an FIR could be harmful to the investigation too. “A criminal might come to know that a complaint has been lodged, he could destroy evidence. He could abscond as well,” he says.

Not all however agree such a provision is necessarily bad or not needed. “In India, the registration of false cases is a major issue,” says KVK Santhy, a professor of criminal law at Hyderabad’s Nalsar University. “People routinely make the wildest allegations to settle scores. So, in this context, making a preliminary inquiry isn’t wrong.” The success of criminal cases depends usually on how it is handled at the police station, from whether the case has been registered under the appropriate provisions to the way evidence is handled and collected. The new laws put a lot of emphasis on the use of technology and forensic science, and it is this aspect that worries many experts. Police officers, for instance, must now make video recordings of all searches and seizures, and recently released guidelines provide detailed instructions on how these videos must be recorded and saved. “Will a police officer sitting in some rural thana be able to do this? Absolutely not. If the seizure is not properly done, then the evidence becomes inadmissible. Imagine a situation where a murder weapon has been seized, but since the seizure was not carried out properly, it will be argued that it ceases to become admissible evidence,” Nipun says.

Many also worry about how digital data will be stored and protected. Calling the concerns over the protection of digital data legitimate, Santhy says, “A dedicated space to store data is one big problem, maintaining the chain of custody could be another.”

One aspect of BNSS that has many experts both hopeful and suspicious is the making of examination of crimes which attracts a prison sentence of seven years or more by forensic ex­perts mandatory. Given the woeful state of our forensic infrastruc­ture, where because of the lack of forensic experts and labs, reports can sometimes take years before they materialise, many are hope­ful that such a provision may lead to a rapid expansion in the coun­try’s forensic infrastructure. Others are more circumspect. “The way I see it, a very Delhi or posh metropolitan view has been taken with these [provisions],” Saxena says. “The parameters of conduct­ing a criminal procedure cannot be different from what is there in Ladakh or Rajasthan or Delhi. It has to be same.”

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