New criminal laws may create ’confusion’ amid loopholes: What we need to know

India will officially get its three new criminal laws on July 1. Will all cases be filed under the new criminal laws after their implementation? What happens to hundreds of cases registered before July 1? What happens if an offence is committed before July 1 and the case is filed after the new criminal laws come into force?

The three new criminal laws which will come into effect from July 1 are Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita 2023 and Bharatiya Sakshya Adhiniyam 2023. These laws will replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPc) and the Indian Evidence Act, respectively.

Two Supreme Court advocates told Mint that cases filed before July 1 will continue to be heard and tried in court under the three old laws. However, they were divided over the treatment of offences committed before July 1 but reported after the enactment of new laws. Will the case be then tried under old or new laws?

Lawyers divided

Senior Advocate of the Supreme Court Pradeep Rai said if the date of the offence committed falls before July 1, then the case will be filed under the old laws – even if it is reported/registered after the enactment of the new criminal laws. This is because the new laws didn't exist when the crime happened (before July 1). Hence, new laws won't be applicable in this case, not even a part of it.

This meant that if a person was murdered before July 1, the case would be filed under old laws (Section 302 of the IPC) and not under the new laws – simply because the new laws were non-existent when the offence took place.

"It will completely depend on the date of adoption of the laws," Rai said. "Suppose there's an offence that happened prior to the adoption of the new law, then the crime will be dealt with depending on the place of occurrence and date," he explained.

However, another Supreme Court advocate, Nipun Saxena, shared a different viewpoint. He said there would be a problem when the offence is committed before July 1, and information about a case is received after that date.

In this scenario, “you will register the offences under the new code [for recording evidence] but under previous laws,” Saxena said.

When asked how the decision will be made on when to apply old or new law to a case, he said a “judge will decide” in each matter. "There will be a discussion on which combination to apply: old substantive or new procedure; new evidence or old evidence," he said.

Confusion in the judicial process

While the statements of these two advocates contradicted, they both contended that "there is going to be a huge confusion as to which law would apply where and what would it govern".

Rai said, “There will be confusion at the start. The situation will be clear only after the verdicts in upcoming cases are pronounced.” He said even small amendments in a section triggers confusion. 

He said, “Today, in terror cases, one can't take 90 days remand, in PMLA [Prevention of Money Laundering Act] cases, you can't take 90 days remand, and in general cases, suppose in Section 323, you can take for 90 days in the name of progress in investigation…this won't be acceptable.” Moreover, the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 states a provision to extend police custody up to 90 days.

How will the problem be fixed? A guideline may be formed

Rai highlighted that there will be confusion about many sections of the new laws, and they have to be decided by the court. He said there may be some amendments, and a guideline may also be formed. “Fore example, a policy may be introduced as to when someone can be taken into remand for 90 days,” he said.

"Within a period of six to seven months, there will be pronouncements which will establishe a guideline-kind of thing as what kind of cases you can exercise these jurisdictions and these powers," Rai said.

Lack of proper training for lawyers and police, except...

The two advocates said there has been no formal training for most of the lawyers and police officers.

Rai said there's no training programme for lawyers and officers and that "they will self-study." He said judges are having a training programme at their judicial academy, especially in Delhi. But in other states, there's no proper mechanism by which lawyers can be trained. "We all are doing self-study and seniors are guiding younger persons...," he said.

Meanwhile, Saxena said while the laws have just been passed in last December 2023, the time period is less than 6 months to train lawyers who are instrumental in the Criminal Justice Administration System (Complainant's counsel, defence counsel and prosecutor) – which has not been undertaken.

"Perhaps only one category of lawyers have received training which is the Prosecutors. However, for a large majority of defence counsel and complainants counsel there have been no meaningful steps taken to train them about the new laws," he added.

Earlier in June this year, it was reported that the central government asked all Ministries to include the newly passed criminal laws in training programs.