01-07-2025
One year of new criminal laws: The challenges of implementation
The new criminal laws (NCLs) — the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) — came into force on July 1, 2024, amid much debate and discussion. The NCLs have been projected as encouraging speedy justice, tech-centric, forensic-centric, victim-centric, and future-proof, and have given an unprecedented spur to the conversation on the decolonisation of laws.
Nevertheless, reflecting on laws should not be viewed as a static, one-off exercise, but rather as a continuous process. Given that the NCLs are approaching their first anniversary, efforts must be made to assess their implementation, feasibility, shortcomings, and challenges.
Normative changes in legal regimes often create implementation ambiguities and confusion. The experience with NCLs has not been different. A change in criminal law typically affects four major components of the criminal justice system: Police, prosecution, judiciary, and the bar. The second half of 2024 saw a flurry of training programmes to familiarise functionaries with the NCLs. While the writers of this article, being educators, provided extensive training sessions which were mandated for police, prosecutors, and the judiciary, such mandatory training for practising advocates remained either noticeably absent or insufficient. Further, highlighting the divide between legislative intent-based classroom learning, the functionaries faced significant challenges in the real-world implementation of the laws.
First, even as the aspirations of a 21st-century digital criminal justice system are obviated by the NCLs, their implementation has been stymied by a lack of adequate infrastructural support at the ground level. Several police stations, especially in remote areas, lack basic access to the internet and tools enabling digital access. Courtrooms, too, are not yet uniformly and adequately equipped to handle digital submissions and virtual hearings. Similarly, not all prisons are equipped with digital equipment to facilitate digital appearances in court. While these appear to be infrastructural issues unrelated to the substance of the criminal laws, it bears noting that the feasibility of the laws' implementation must be a normative consideration for legislators.
Second, the primary measure to achieve speedy justice has been the introduction of timelines in the BNSS. For instance, victims must be informed about the progress of the investigation within 90 days; the supply of police reports to the accused must be completed within 14 days; discharge applications must be filed within 60 days, and charges must be framed within 60 days. These timelines are laudable in theory. However, there is a notable absence of enforcement mechanisms, other than the statutory provisions on timelines, to ensure compliance by the functionaries. Achieving these timelines realistically requires additional resources. In this context, it is pertinent to note that the India Justice Report 2025 (IJR) observes an average vacancy rate of 22 per cent in the police forces and the district judiciary, respectively. Imposing timelines without simultaneously accounting for the increased manpower requirements disproportionately burdens the existing functionaries.
Third, there has been an appreciable thrust on forensics under the BNSS and BSA. However, as noted above, infrastructural and manpower-related issues continue to plague implementation. According to the IJR, there were 47 per cent administrative vacancies and 49 per cent scientific vacancies nationwide in forensics. The number of forensic laboratories capable of handling vast caseloads effectively and efficiently remains unnervingly low. Although both the Centre and state governments have taken measures to give impetus to forensics and rectify the shortcomings, such measures will take time to bear fruit.
Fourth, implementation challenges have also arisen in terms of the substance of NCLs. For instance, the use of the phrase 'digital record' in Section 61 of BSA in juxtaposition to 'electronic record' in Sections 62 and 63, without any conceptual differentiation, creates avoidable ambiguities. The measure under Section 63(4), BSA, which requires a certificate from both the person in lawful control of the device and an expert for the admissibility of an electronic record, without providing for the actual notification of such experts, creates procedural difficulties.
Fifth, although the revamped arrest procedure under the BNSS has introduced transparency and accountability, several practical challenges remain unaddressed. For instance, although the BNSS requires that the grounds for arrest be clearly communicated in a language understood by the accused, in practice, the arresting police officers often read out the grounds for arrest in a legalistic and formalistic manner, which is incomprehensible to the accused. Similarly, while the arrest memo must specify the grounds for arrest in furtherance of judicial directions, arrest memo formats in several states omit this. Ideally, given the pertinence of an arrest memo, a format should be appended to Schedule 2 of the BNSS. Nevertheless, there is a need for states to update the format and make the same available to all police officers.
Sixth, the introduction of community service as a form of punishment under the BNSS has been a welcome reform, marking a seminal shift in Indian penology. However, the lack of a formal mechanism for implementing the provision in the BNSS provides an opportunity for uneven implementation. Some states and UTs have issued guidelines specifying how the punishment is to be executed but a majority of states are yet to do so. Most states lack the infrastructure required to implement such a punishment.
The challenges are not limited to the ones discussed here. At this juncture, several of these problems can be classified as teething issues, which can and must be rectified as early as possible. This requires the institutionalisation of an implementation stocktaking and feedback mechanism that allows the functionaries of the criminal justice system to communicate the challenges they face in real time. Simultaneously, systematic research is required to pre-empt potential challenges that will arise as the criminal justice system adapts to the new regime and cases reach appellate levels.
Bajpai, Vice-Chancellor of National Law University Delhi, served as the Convenor of the Criminal Law Reform Committee of India. Kaushik is an Assistant Professor at NLU Delhi
