New Code, Old capacity

Contact Counsellor

CategoryPolity

Last Updated21/09/2024

The recent enactment of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) marks a significant overhaul of India’s criminal justice system.
These laws replace the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and the Indian Evidence Act, with the intention of modernizing and expediting justice.
While the new codes are aimed at addressing current challenges and improving public access to justice, their effective implementation faces several hurdles.

One of the most ambitious reforms under the BNSS is the imposition of stricter timelines for trials. Judgments must be delivered within 45 days of trial completion, and charges framed within 60 days of the first hearing.
This is a commendable goal, but the National Judicial Data Grid (NJDG) highlights the overwhelming backlog of 5.1 crore pending cases across Indian courts. With an increasing caseload—now averaging 2,474 cases per judge—meeting these timelines could be challenging.
Without addressing the systemic issues of judicial vacancies and resource shortages, these goals may remain aspirational rather than achievable.

Another reform is the expansion of bail provisions. Under BNSS, first-time offenders can now apply for bail after serving a third of their sentence, an improvement over the previous rule, which only allowed this after half of the sentence.
This is a step towards reducing the undertrial population, which has grown from 3.7 lakh to 4.2 lakh between 2020 and 2022. However, the reality of bail in India remains fraught with delays and inconsistencies, and systemic change is required to make “bail not jail” the norm.

The lack of adequate personnel and infrastructure poses a critical challenge. With 21% vacancy in lower courts and 30% in high courts, the judiciary is severely understaffed. Each new judicial appointment demands additional physical infrastructure and administrative support.
While budgets for the judiciary have increased in recent years, they have not kept pace with rising state GDPs or inflation, hampering the necessary expansion of judicial capacity.

A noteworthy reform mandates that statements from sexual violence victims must be recorded by female police officers and videographed.
While this is aimed at creating a safer environment for victims, the ground reality shows that 80% of women police officers are in the constabulary, which makes it difficult to ensure that qualified personnel are available for this sensitive task.
The logistical challenges could deter victims from reporting crimes, which could undermine the intention behind the reform.

The new codes mandate forensic investigations for crimes punishable by seven or more years and require videography for search and seizures. These steps toward evidence-based law enforcement are vital.
However, India faces a chronic shortage of forensic labs, trained professionals, and adequate infrastructure. Even with the National Forensic Infrastructure Enhancement Scheme injecting Rs 2,254 crore for upgrading forensic capacities, the mismatch between demand and resources remains a significant bottleneck.
The reliance on electronic evidence also introduces new complexities. Maintaining the chain of custody and ensuring the integrity of electronic evidence is essential, yet requires judges to be upskilled in understanding and ruling on such evidence.
Expert witnesses must be available, impartial, and subject to rigorous cross-examination.

For these reforms to succeed, the entire criminal justice system requires comprehensive training.
Police officers, forensic personnel, prosecutors, defense attorneys, and judges must all be educated not only on the technical aspects of the new laws but also on the underlying principles of justice and fairness. Decades of neglect in training and infrastructure make this an urgent priority.