Ambiguity from the new penal laws has caused confusion in India. sergeyadobestock.com 

The speed of implementation and resulting ambiguity stemming from the introduction in July of three new penal laws in India has caused confusion, say local lawyers, while others highlight missed opportunities for change. Other critics, meanwhile, have voiced concern about the potential effects on the rights of individuals. ‘These laws in many aspects have the potential to curtail civil liberties and violate human rights and the constitutional provisions’, says Tahera Mandviwala, Co-Chair of the IBA India Working Group and a partner at TDT Legal in Mumbai.

The changes – which the Indian government says will make the country more justice-focused and modernise the criminal system – were passed by parliament in 2023. The laws, individually the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam, replace three British colonial-era statutes, namely the Indian Penal Code, the Indian Evidence Act and the Code of Criminal Procedure. ‘About 77 years after independence, our criminal justice system is becoming completely indigenous and will run on Indian ethos’, said India's Home Minister, Amit Shah. ‘Instead of punishment, there will now be justice’.

The main changes include the introduction of a broader sedition law to encompass any act considered ‘endangering the sovereignty, unity, and integrity of India’ as well as longer sentencing periods. 

Under the government of Prime Minister Narendra Modi – recently re-elected to his third term – journalists, opposition politicians and activists have endured attempts to silence their criticism, while websites featuring content unfavourable to the government have been taken down and civil society organisations have faced tougher restrictions. The government has also been criticised for its treatment of minority groups. 

Many, says Mandviwala, see certain provisions of these new laws as representing an effort by the government to further its power – through strengthening the police – and to use it as a weapon to curb the opposition and target minorities. India’s government didn’t respond to Global Insight’s request for comment.

The new laws give police more power to make arrests, with the ability to detain people for longer. The new Code of Criminal Procedure allows the police to seek to keep an accused individual in custody for up to 15 days any time before the completion of 40 to 60 days of the allowed remand period, instead of only the first two weeks after an arrest. Aakar Patel, Chair of Board at Amnesty International India, said in a statement that he’s concerned about an increase in the use of torture and other ill-treatment as a result.

Other changes focus on modernisation – the requirement of crime scenes to be video recorded, the creation of a new online police complaints service and the potential for summons to be delivered electronically – while some aim to further protect women and children. Investigations of crimes against women and children are now to be completed within two months, those in need of medical care will receive it at no cost and sexual assault laws now define consent and criminalise the act of proposing marriage where it’s done in an attempt to engage in sexual intercourse.

Mihira Sood, Executive Director of the Centre for Child Rights and Juvenile Justice and a Delhi-based lawyer, says she would have liked to have seen a definition of rape that encompassed more gender-specific acts – as it stands, in India rape is only considered to be an act committed by a man against a woman – and a distinction made between a breach of promise to marry and a false promise to marry. Marital rape has also not been recognised as a crime. However, the Supreme Court is considering whether to make a legal amendment in this regard.

The laws needed updating, says Mandviwala, but some of these changes have ‘a retrograde effect instead of a forward moving and positive one.’ This could have been avoided if the laws had gone through due process, she says. According to the government, there were three months of discussions around the laws. However, numerous other commentators have expressed concerns about the process. P Chidambaram said there had been no ‘worthwhile debate’ and that criticisms weren’t addressed. This, he believes, will cause havoc for the administration of criminal justice.

Mandviwala says, ‘with these new laws having skipped the law commission and proper parliamentary debate’, and as the case law that has given form and substance to many of the criminal laws and procedures over the years has been excluded from the language and substance of the new legislation, ‘many see various loopholes and practical challenges in the new laws’. For example, the new online provisions may not practically adhere to the criminal procedure norms and protections relating to criminal procedure, she highlights. 

Dushyant Dave, past Vice-Chair of the IBA Arbitration Committee and former Indian Supreme Court Bar Association President, says that there will be particular confusion as to whether to try current pending cases under the old or new laws – the names of which, he adds, are ambiguous. 

‘It will fall on the lawyers and the judiciary to interpret these laws and help fill in the gaps and loopholes through judicial interpretation and enforcement’, says Mandviwala.

The government is yet to respond to the criticism of the new laws, but Patel argues that the legislation should be repealed and brought in line with international human rights standards. 

Dave meanwhile calls on the international community to pay attention to the changes and the impact they’ll have. ‘It’s important that the world understands what’s happening in India because we are the most populous democracy in the world and the world has a great stake in ensuring democracy’, he says.