On Friday, the Madras High Court raised concerns about the Central Government’s decision to repeal the existing criminal laws- the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Evidence Act- questioning why the government chose not to make necessary amendments to these laws instead. The remarks came during a hearing of three Public Interest Litigations (PILs) filed by DMK organising secretary RS Bharathi, challenging the constitutional validity of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA).
A division bench comprising Justice SS Sundar and Justice N Senthilkumar expressed scepticism about the motive behind completely overhauling the existing laws. “Why did you want to change everything? Was it to confuse the people? You could have made small amendments,” Justice Sundar remarked. The bench voiced apprehension that the new laws would bring confusion and require judicial interpretations, ultimately causing delays in the justice delivery system.
Justice Sundar also criticised the government for not adequately considering the Law Commission’s opinion while introducing the new laws. “When procedures are involved, citizens expect minimum protection. The Law Commission should be considered. Normally, in principle at least, even before touching a law for amendment, the legislature will refer the matter to the Law Commission,” he stated.
Senior Counsel NR Elango, representing the petitioner, argued that the new laws had complicated the process of obtaining certificates for the admissibility of electronic evidence. He pointed out that the new laws required such certificates to be issued by experts, recognized only if their respective departments, bodies, or agencies are notified by the Central Government. With very few laboratories notified under the Information Technology Act of 2000, this would create significant delays in proving cases involving electronic evidence in court.
Elango argued that these delays would violate Article 21 of the Constitution, which guarantees the right to life and personal liberty.
In his plea, RS Bharathi contended that the new laws aim to weaponize legal provisions to criminalise democratic expressions of dissent. He argued that these laws dismantle fundamental principles of criminal jurisprudence, such as the right to a free and fair trial, and centralise police power, providing immunity to police and state officials. Bharathi also described the new criminal laws as overly oppressive and arbitrary, failing to balance the objectives with citizens’ fundamental rights.
Bharathi further argued that the Parliament passed the new laws without meaningful discussion, against the legitimate expectations of citizens. He claimed that the new laws do not introduce substantial changes but merely reshuffle existing sections, causing confusion and inconvenience in their interpretation. He added that this shuffling would make it difficult for judges, advocates, law enforcement agencies, and the public to correlate the new provisions with the old ones for legal precedents.
Additionally, Bharathi criticised the new laws as an attempt to “Sanskritise” the titles without a genuine effort to revisit the legal provisions. He argued that these laws were enacted by a single limb of Parliament, the ruling party and its allies, without the involvement of the opposition parties.
Recognizing the importance of the issues raised, the court has asked the Central Government to file a counter-affidavit within four weeks and tagged the petition along with other pleas challenging the new criminal laws.
