Context

• The recent announcement by the Minister for Law and Justice about a National Litigation Policy aims to transform the government into an efficient and responsible entity.
• Simultaneously, the Home Minister has revealed that three new criminal laws will come into effect on July 1, 2024.
• These developments present a significant overhaul of India's criminal justice system, raising questions about their impact on the legal landscape, particularly concerning citizens' rights and the judiciary's efficiency.

The Essence of Criminal Law and its Compliance

• Criminal law's primary purpose is to comply with established procedures, as it has the potential to deprive individuals of life and liberty.
• Article 21 of the Indian Constitution emphasises that no person shall be deprived of life and liberty except by the procedure established by law.
• Traditionally, this procedure has been governed by the Criminal Procedure Code (CrPC), which has now been replaced by the new laws.
• The Indian Penal Code (IPC), which defines criminal behaviour, has also been revised, introducing new crimes, and altering existing definitions.

Potential Impact of Three New Criminal Laws

• Increased Complexity and Legal Uncertainty
  • The primary objective of the National Litigation Policy is to streamline governmental litigation, reducing costs and the number of cases involving the government.
  • However, the simultaneous implementation of three new criminal laws, revising almost every section of the IPC, CrPC, and Indian Evidence Act, complicates this goal.
  • The established legal framework provided by these laws has offered predictability and certainty, essential for citizens and legal practitioners to navigate the judicial system effectively.
  • With the introduction of the new laws, there is an inherent period of adjustment where lawyers, judges, and law enforcement officers must familiarise themselves with the new provisions.
  • This transition period will likely involve increased legal disputes as interpretations of the new laws are contested in court.
    • For instance, changes in definitions of crimes and procedures will necessitate numerous legal challenges, each requiring time and resources to resolve.
    • This increased complexity directly translates to higher legal costs for all parties involved, including the government.
• Burden on Legal Practitioners and the Judiciary
  • Legal practitioners will face a significant learning curve as they adapt to the revised laws.
  • The need for extensive training and the drafting of new legal strategies will place additional demands on their time and resources.
  • Moreover, the judiciary will encounter a surge in cases as old and new legal frameworks coexist, leading to disputes over which laws and procedures apply to specific cases.
  • This duality not only confuses but also lengthens the legal process, further straining an already overburdened judiciary.
• Increased Litigation and Case Backlogs
  • The National Judicial Data Grid highlights a severe backlog of over 83,000 criminal cases pending in Indian courts.
  • The introduction of new laws without thorough evaluation and preparedness could exacerbate this backlog by an estimated 30%.
  • As legal practitioners and the judiciary grapple with the new laws, the number of pending cases is likely to surge.
  • Each new legal challenge regarding the interpretation and application of the new laws will contribute to this backlog, causing interminable delays.
• Financial Implications for the Accused
  • For individuals accused of crimes under the new laws, the financial implications are significant.
  • Legal representation will become more costly as lawyers invest additional time in understanding and arguing the nuances of the new legal framework.
  • Furthermore, prolonged legal battles due to disputes over procedural and substantive changes will increase legal fees.
  • This situation disproportionately affects those from lower socio-economic backgrounds, who may struggle to afford extended legal services, thereby impacting their right to a fair trial.
• Additional Legal Costs for the Government
  • As the state is the primary litigant in criminal cases, increased litigation due to the new laws will require more resources for legal representation and court proceedings.
  • The government will need to allocate additional funds to manage the increased caseload, which could otherwise be used for public welfare programs.
  • This scenario contradicts the National Litigation Policy's goal of reducing governmental legal expenditure.
• Infrastructure Upgrades and Resource Allocation
  • The judiciary's infrastructure will need significant upgrades to handle the increased burden.
  • This includes hiring additional judges, expanding court facilities, and implementing advanced case management systems.
  • Without these upgrades, the existing judicial infrastructure will be overwhelmed, leading to further delays and inefficiencies.
  • The financial and logistical resources required for these upgrades are substantial, and without a clear audit and plan, the implementation of the new laws risks overwhelming the system.

Some Other Areas of Concern Regarding the Implementation of Three New Criminal Laws

• Dual Systems of Criminal Justice
  • From July 1, the coexistence of old and new criminal justice systems will complicate legal proceedings.
  • Substantive laws, which define crimes, cannot be applied retrospectively, while procedural laws can be, unless they adversely affect the accused.
  • This duality will likely lead to disputes about which procedures apply, causing further delays as these issues reach the Supreme Court.
  • This uncertainty compromises citizens' rights, as they navigate an unpredictable legal environment.
• Disrespect for Judicial Precedents
  • The Bharatiya Nagarik Suraksha Sanhita, 2023, mandates preliminary inquiries in every cognizable offense punishable by three to seven years of imprisonment.
  • It contradicts the Supreme Court's ruling in Lalita Kumari vs Government of Uttar Pradesh (2013), which limited such inquiries to exceptional cases.
  • This undermines judicial authority and heralds an era where legislative actions can override judicial protections of liberties.
• The Risk of Dual Prosecution
  • Incorporating stringent provisions from the Unlawful Activities (Prevention) Act (UAPA) into the new laws allows for dual prosecution for the same offense under different agencies, such as the NIA and local police.
  • This duality increases the complexity and potential for abuse within the legal system, threatening citizens' hard-won rights and liberties.

Potential Solutions and Recommendations to Mitigate the Impacts

• To mitigate these impacts, it is crucial to conduct a comprehensive judicial audit before the new laws come into force.
• This audit should assess the potential increase in litigation, the necessary infrastructural upgrades, and the financial implications for both the government and private citizens.
• Additionally, phased implementation and extensive training for legal practitioners and judiciary members can help ease the transition.
• Adequate support for lower-income individuals, possibly through enhanced legal aid services, will ensure that access to justice is not compromised.

Conclusion

• The introduction of the National Litigation Policy, alongside the Bharatiya Nagarik Suraksha Sanhita2023, Bharatiya Nyaya Sanhita2023, and Bharatiya Sakshya Adhiniyam 2023, presents a paradox.
• Without a comprehensive judicial audit to assess their impact, implementing these laws could undermine fundamental rights and access to justice.
• Therefore, it is imperative to delay their enforcement until their implications are thoroughly evaluated and addressed to ensure they contribute positively to India's legal landscape.