Extramarital affairs to sedition, a few questions about new criminal laws, answered by lawyers

Is sedition outlawed? Will the new criminal laws make getting bail more difficult? Is the system ready for the new laws? Supreme Court and high court lawyers explain

Arnab Ganguly, TT, 02.07.24 : Two street vendors, one in Delhi and another in north Goa, were on Monday booked under Section 285 of the Bharatiya Nyay Sanhita, becoming among the first cases to be registered under one of the three new criminal laws that came into effect as the last midnight of June 2024 turned to 1 July.

The BNS replaces the Indian Penal Code, the Bharatiya Nagarik Suraksha Sanhita replaces the Code of Criminal Procedure and the Bharatiya Sakshya Adhiniyam replaces the Evidence Act.

“Whoever, by doing any act, or by omitting to take order with any property in his possession of under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to five thousand rupees,” says Section 285 of the BNS, under which the FIRs were reportedly filed against both the vendors.

“What is a public line of navigation? How does one define it?” asked Sanjay Hegde, senior advocate in the Supreme Court.

Under the new laws, Hegde told The Telegraph Online, “the police have been given discretionary rights at every step.

“As it is, India has a culture of arrest-first,” he added. “Criminal law has to be very certain, what is a crime and what is not a crime. The language used [in the new laws] is vague. ‘Annoyance’, ‘obstruction’, ‘disobeying orders’ are matters of value judgement. It will take at least two decades for the courts to interpret the language. In between, those who get caught in the process – if they do not have money – will have to go through untold misery.”

Union home minister Amit Shah told reporters on Monday that the first case under the new laws was about a motorcycle theft in Gwalior, Madhya Pradesh, registered 10 minutes past midnight.

He also said the Delhi police "dismissed" the case filed against the street vendor after an investigation. "By using the provisions of review, police have dismissed this case," he was quoted as saying by PTI.

Legal experts explain some disturbing provisions of the three new criminal laws

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Here are a few questions about the new criminal laws, answered by lawyers and experts.

Is sedition outlawed?

Yes and no.

The word sedition finds no mention in the Bharatiya Nyay Sanhita. But chapter VI of the BNS speaks “of offences dealing with the human body/of offences affecting life, section 113 clause 3 states, whoever conspires or attempts to commit, or advocates, abets, advises, or incites, directly or knowingly facilitates the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.”

Terrorism cases have till now been dealt with by the Unlawful Activities (Prevention) Act.

The words used in Section 113 (3) of the BNS are identical to UAPA Section 18.

In Chapter VII, which deals with offences against the state, Section 150 of the BNS says: “whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the Government of India, intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Under Section 152, it further adds, whoever, purposely or knowingly by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extent to seven years, and shall also be liable to fine.”

Delhi-based senior advocate Sanjay Ghose told The Telegraph Online that sedition has been brought in through the backdoor.

“Any criticism [of the government] can be construed as criticism,” Ghose said. “Moreover, they have given an officer of a police station to decide what is an act of terrorism and who can be called a terrorist. This leaves so much room for abuse of power.”

Will the new criminal laws make getting bail more difficult?

Under the Code of Criminal Procedure, police custody can be granted up to a period of 15 days, in case the investigation cannot be completed within 24-hours.

Section 187 of the Bharatiya Nagarik Suraksha Sanhita – the BNSS replaces the CrPC – says police custody can be authorised in whole or in parts at any time during the initial 60 days for offences punishable with at least 10 years of imprisonment, and 40 days for any other offence.

However, those people charged under offences that are punishable with death, life imprisonment, or imprisonment for ten years and more can be denied bail for up to 90 days.

“The lawyers will not be certain when there is a possibility of appealing for bail. This is granting excess power to the cops,” said Hegde.

What is the punishment for extramarital affairs?

Under offences related to marriage in the Bharatiya Nyay Sanhita, Section 81 says: “...every man who by deceit causes any woman who is not lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”

Section 82 says, “…whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine”.

Reacting to these provisions Ghose asked: “If a couple have a falling out and decide that they are no longer compatible, would that be counted as rape? Who will decide who deceived whom in such cases?”

Is the system ready for the new laws?

Indira Jaisingh, another noted Supreme Court lawyer, has warned that the new laws will create two parallel justice systems for at least decades.

Manoj Harit, advocate in Bombay High Court, agreed. “Two legal procedures are bound to create confusion,” Harit told The Telegraph Online.

“Implementation of the new laws will create an atmosphere of uncertainty and chaos. Lawyers are definitely going to file applications on behalf of their clients whether they want the cases to continue under the IPC or under the BNS. The matter could stretch from the lower courts to the Supreme Court. Ultimately, instead of a swift delivery of justice, it will be delayed.”

Many of those involved with the legal and judicial process expressed doubt whether those involved in the implementation in the interpretation of the laws and executing the judicial system are well-versed with the new laws.

“We attended a one-and-half day session at the Judicial Training Academy in Uttan Gorai. It was barely adequate,” a Maharashtra-based judge said under strict condition of anonymity.

In Bengal, too, similar sessions have been held, confirmed an advocate with Calcutta High Court.

“The Delhi consumer forum did not have a functioning toilet or water dispenser. There are vacancies in the number of judges and court staff. Amid such doddering infrastructure are we really prepared for this?” Ghose asked.

“Some of the things that have been mentioned like mandatory sentencing, time limit for hearing has never worked anywhere. Community service has been introduced. While a rich kid might be able to hire a lawyer and get away with a community service as decided by the court, a poor kid with a similar offence or even lesser one might not be able to get bail,” he added.

Recently in the Pune Porsche run over case that killed two, the perpetrator a minor was asked to write an essay. That was before the new laws came in.

At least three serving IPS officers in Bengal that The Telegraph Online tried to speak with regarding the new laws refused to air their opinion.

“It is too early to talk about the pros and cons. There are long-term implications which are difficult to identify right now,” said an additional-director-general-rank officer who did not want to be named.