The challenges with The New Criminal Laws

Introduction

India's criminal justice system has entered a revolutionary phase with the advent of three significant legislative changes: 

• The Bharatiya Nyaya Sanhita, 2023 (BNS), superseding the Indian Penal Code, 1860; 
• The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), superseding the Criminal Procedure Code, 1973; and
• The Bharatiya Sakshya Adhiniyam, 2023 (BSA), superseding the Indian Evidence Act, 1872. 

These reforms are not cosmetic but a structural revamp to make criminal law more citizen-friendly, efficient, and tech-enabled. 

The shift aims to get rid of colonial traces, give more importance to the rights of victims, and combat modern crimes like cybercrimes and terrorism better. Though progressive in spirit, several legal experts, activists, and stakeholders have criticized several substantive and procedural provisions of the new legislation. Overcriminalization, unclear meanings, online monitoring, assumption of guilt, and gender insensitivity are among the issues raised. 

In this blog, we examine the complex challenges these new legislations pose, examine their implications for parties involved, and propose reforms based on constitutional ideals, comparative jurisprudence, and pragmatic implementation measures. Such a reform must be supported by sound safeguards, inclusivity, and transparency to really serve justice for contemporary India. 

OVERCRIMINALIZATION AND VAGUENESS OF PROVISIONS 

Among the most debated issues around the Bharatiya Nyaya Sanhita is the overcriminalization of behavior and ambiguity of some of the newly added provisions. Section 69, for example, criminalizing conduct threatening the sovereignty, unity, and integrity of India, shows eerie similarity to the antiquated sedition law (Section 124A IPC) that has been kept in abeyance by the Supreme Court. Phrases such as "anti-national activity" or "misinformation" remain undefined, making it highly discretionary in their understanding and possible abuse by the enforcement agencies. 

Loosely worded clauses like these contravene the doctrine of legality, under which laws have to be clear and predictable. The Indian Constitution under Article 14 ensures equality before the law, while under Article 19, the right to free speech is guaranteed. Loose laws can be used as instruments of oppression to quell dissent, clip the wings of press freedom, and target minority opinions, subverting these constitutional guarantees. 

Secondly, the making of "mob lynching" a new offence is commendable, but the omission to define mob or explicate command responsibility could lead to ineffective prosecutions. A criminal statute needs to state the ingredients of the offence clearly so that it is not subject to arbitrary use. Thus, there is a pressing need to revisit these provisions for clarity, proportionality, and fairness in criminal prosecutions.

TRAINING AND INFRASTRUCTURE DEFICIENCY 

The effective implementation of any legal change is largely dependent on the readiness of institutions that will implement it. With more than 29,000 police stations and thousands of courts of trial distributed across India, training law enforcement personnel, prosecutors, and judicial officers under the new criminal laws poses a gargantuan task. Until mid-2025, there remains a wide gap in the capacity-building programs needed to facilitate this change in the law.

Many officers still operate according to the defunct IPC and CrPC structures. This leads to confusion in the registration of FIRs, charges framing, and charge sheet filing, and this can lead to the most unjust and arbitrary arrests or dismissals because of procedural lapses. The lack of updated case management software, software for electronic FIRs, and standard investigation protocols under the BNSS is a serious hurdle. 

Further, the infrastructure currently available in lower courts is already congested. Most of the district and taluka-level courts have no basic digital resources, high-speed internet access, or trained personnel to handle digital evidence. Unless the government speeds up investments in judicial infrastructure, the new legislation has the potential to become dead letters. A staged and well-financed roll-out plan with accompanying far-reaching training programs and resource materials is necessary for the reforms to be effective and durable. 

PRESUMPTION OF GUILT AND DUE PROCESS CONCERNS 

An anchor of any democratic criminal justice system is that there should be a presumption of innocence. Yet, a number of provisions in the new legislation seem to erode this fundamental doctrine. For instance, according to the BNS, the onus of proof for crimes such as organized crime, gang violence, and terror financing can be placed upon the accused in certain circumstances. This is a departure from the general rule whereby the prosecution has to establish guilt beyond reasonable doubt. 

Although one needs good tools to fight serious crimes, procedural protection cannot be sacrificed. Reversing the burden of proof will disproportionately hurt marginalized communities who may not be able to afford good lawyers. Further, growing use of confessions and electronic evidence, without proper protection, raises the chances of coercion or fabrication. 

Article 21 of the Constitution provides for the right to life and personal liberty, which encompasses the right to a fair trial. The presumption of guilt goes against the very principle and can result in pre-trial punishments, extended detentions, and heightened custodial torture. Therefore, there is an urgent need to revisit such provisions and see to it that procedural protections are strong, particularly where national security and organized crime are involved. Laws have to find balance between public interest and individual freedom without undermining the rule of law. 

 PREVENTIVE DETENTION AND BAIL CHALLENGES 

The BNSS provides the police with sweeping powers of preventive arrest in the pretext of upholding law and order. The provisions of Sections 35 to 39 enable warrantless arrests in a wide array of circumstances, which can result in the abuse of authority, particularly against activists, journalists, and protesters. Preventive detention, while allowed under Article 22 of the Constitution, has been habitually abused in India, especially against voices of dissent. Bail jurisprudence largely stays the same in the new law, still being discretionary and frequently arbitrary. Albeit Supreme Court precedents such as Arnesh Kumar v. State of Bihar which had underlined bail over jail, undertrial prisoners constitute more than 75% of India's jailed population. The BNSS is not clarificatory enough in statute to give precedence to bail for petty offenses or to vulnerable persons. 

Lack of definitive, consistent bail standards results in differential treatment between jurisdictions and rising rates of incarceration. There is also no legislative requirement for the application of non-custodial options like probation, community service, or electronic monitoring. India has to codify comprehensive bail guidelines, encourage alternatives to arrest, and implement judicial review of preventive detentions in order to bring itself in line with international best practices as well as constitutional requirements.

 GENDER JUSTICE AND EXCEPTION OF MARITAL RAPE 

Even with considerable progress in acknowledging sexual violence in India, the new criminal legislation has not touched upon one of the most controversial issues in gender justice—criminalization of marital rape. Section 63 of the BNS, similar to its earlier incarnation under IPC Section 375 Exception 2, holds that sexual intercourse by a man with his wife (not under 18 years of age) is not rape. This legal stance cruelly opposes the right of bodily autonomy, dignity, and equality embodied in Articles 14 and 21 of the Constitution. 

Internationally, more than 100 nations have made marital rape a criminal offense, as in the case of South Africa, the UK, and the US. In India, several High Courts as well as the Supreme Court have recognized the necessity to revisit this obsolete exemption. The persistent immunity accorded to husbands perpetuates patriarchal beliefs that regard women as property within marriage. 

In addition, the new legislation continues to employ gendered terminology that only specifies rape in terms of male perpetrators and female victims. This leaves out LGBTQ+ victims and male survivors of rape from the protection of the law. The law should acknowledge that sexual violence is a violation irrespective of victim or perpetrator gender. 

It is the need of the time for India to make a progressive move by criminalizing marital rape and declaring sexual offences gender-neutral according to constitutional morality and international obligations such as CEDAW. 

 USE OF TECHNOLOGY AND PRIVACY ISSUES 

The new criminal codes focus on technological application in police and judicial processes. The BNSS and BSA have provisions that make electronic recording of evidence, online registration of FIRs, body cameras, electronic surveillance, and digital filing of documents and confessions possible. Although the reforms seek to enhance efficiency, they pose critical issues related to data privacy, overreaching surveillance, and cyber-security. 

India does not have an overarching regulatory framework for the regulation of law enforcement technology at present. Although the Digital Personal Data Protection Act, 2023 has been passed, its implementation and convergence with the criminal law system continue to develop. Unless the new laws are put under effective checks and balances, they have the potential to facilitate mass surveillance and infringe on the right to privacy established in Justice K.S. Puttaswamy v. Union of India (2017). 

Application of facial recognition technology, drone surveillance, and AI-powered profiling must be balanced with judicial control, transparency, and accountability measures. There should be explicit rules on consent, storage, and admissibility of digital evidence. 

While digital technology can support justice delivery, they should not be turned into tools of state overreach. India needs to establish a privacy-friendly digital infrastructure in its criminal justice system to ensure that it does not intrude into civil liberties and fundamental rights of citizens. 

 PUNITIVE ORIENTATION AND PRISON OVERCROWDING

The Bharatiya Nyaya Sanhita has a clearly punitive bent in proposing stricter sentences, including capital punishment, for a number of new crimes like mob lynching, terrorism, and organized crime. Though deterrence is a legitimate purpose of criminal law, evidence about deterrent effect being low is not strong. Rather than deterring crime, stricter sentences will tend to exacerbate overcrowding in prisons as well as judicial pendency. 

India's prisons are already overcrowded at more than 120% capacity, leaving most of them comprised of undertrials. The new legislation, by prescribing harsh minimum sentences and increasing the number of non-bailable offences, will further inflate this figure. The focus on retribution, rather than reformation, is especially misguided in a country where legal aid and rehabilitation facilities are available in short supply.

Moreover, the new legislation does not provide tangible alternatives to imprisonment in the form of restorative justice, plea bargaining options, or community service. They also fail to include clauses aimed at mitigating sentence disparity depending on socio-economic circumstances of the accused. 

In a welfare state, criminal legislation should not only punish but also correct, reintegrate, and reform criminals. A drastic need arises for changing from punitive justice to restorative justice, especially for first-time offenders, juveniles, and members of disadvantaged classes. 

 LACK OF A CLEAR TRANSITION MECHANISM 

One of the most obvious oversights in the implementation of the new criminal legislation is the lack of an explicit and well-considered transition mechanism. With thousands of pending cases under the Indian Penal Code, Criminal Procedure Code, and Indian Evidence Act, there is no clear determination of what will be done with these pending cases under the new regime. 

Legal professionals and trial courts are already seeing uncertainty regarding whether the new statutes would apply prospectively, retrospectively, or based on the stage of the trial. For example, if a charge was made under the IPC but the trial proceeds after the BNS comes into force, must the court reframe charges? What about instances where the Evidence Act was used to introduce certain documents?

This uncertainty has the potential to cause extended delays, procedural difficulties, and even constitutional litigation on matters of fairness and legitimacy. It could also add to the workloads of already congested police stations and courts, since officers will be struggling to familiarize themselves with new terms and procedures. 

The government should release transitional guidelines, model case handling protocols, and judicial circulars at once to bring about consistency and legal certainty. Similar to the transition to GST, which had a statutory roadmap, the criminal justice system needs a codified "Transition Code" to steer the country through this legislative revolution with ease. 

 COMPARATIVE INTERNATIONAL PERSPECTIVES

Observation of practices across the world provides useful insight into how criminal legislation may find a balance between state interest and constitutional freedoms. For example, criminal legislation in the United Kingdom is interpreted in line with the Human Rights Act, 1998, so that all provisions of law are scrutinized to ascertain whether they conform to the European Convention on Human Rights. Vague or wide laws are read down or struck down by the courts if they inordinately limit personal liberties. 

Procedural safeguards like Miranda Rights, the exclusionary rule for illegally obtained evidence, and constitutionally assured legal aid guarantee due process in the United States. Additionally, plea bargaining mechanisms and guidelines for sentencing assist in guaranteeing efficiency without sacrificing justice. 

Germany, like the inquisitorial tradition, focuses on the principles of legality, proportionality, and clarity in every criminal provision. Laws are written in definite terms, and public prosecutors have an obligation to follow inculpatory and exculpatory evidence, keeping the proceedings fair. 

India can take lessons from these models to implement statutory checks against overreach, enact rights-based procedures, and increase the transparency of the police. Embracing best practices from abroad does not involve discarding indigenous principles, but building upon them to forge a contemporary, constitutionally sound criminal justice system adapted to Indian realities.

 RECOMMENDATIONS AND THE WAY FORWARD 

To guarantee the sustainability and success of the new criminal law system, a combination of structural, procedural, and policy reforms must be undertaken. 

• First, there should be a constitutional re-examination of controversial provisions such as ambiguous offences and marital rape exemption, either by judicial examination or legislative reform. Ambiguous language must be clarified to prevent abuse. 
• Secondly, a country-wide training and capacity-building program should be initiated for police officers, judges, and prosecutors. Law schools, judicial academies, and police academies should update their curriculum in accordance with the new laws. 
• Thirdly, gender reforms should be given priority. Marital rape should be criminalized, and sexual offence provisions be made gender-neutral in order to protect all victims without discriminating on the basis of gender or sexual orientation. 
• Fourth, bail reforms are necessary. Transparent statutory provisions on bail, especially for minor offences and undertrial prisoners, will curb prison congestion and guarantee Article 21 rights. 
• Fifth, a code of transition needs to be developed to ensure clarity regarding the implications of new laws on pendency cases. 
• Last but not least, privacy, surveillance, and collection of electronic evidence need to be governed with stringent legal protection so that civil liberties are safeguarded. These changes, if adopted in good faith, will guarantee that the new criminal law is not only new in approach but reformative in nature.

CONCLUSION 

The enactment of the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam is a pioneering step towards bringing India's colonial heritage of criminal jurisprudence into the modern era. As meritorious as the intention behind reform is—prioritizing victim rights, digital justice, and speedy adjudication—the implementation of these statutes is fraught with pitfalls that need to be tackled proactively. 

From ambiguous definitions, overreach of surveillance, and gender insensitivity to confusion in procedure and institutional unreadiness, the threats are real. But all these can be overcome. With representative policymaking, robust legal protection, and open judicial review, the new legislations can become tools of real justice. 

India has reached a legal crossroads. The decisions made today will determine not just the future of the criminal justice system but also the liberties and rights of generations to come. Attention needs to switch from symbolism to substance, from enactment to enforcement, and from retribution to restoration. 

Law reform has to be a living and participative process. Toward that end, ongoing feedback, scholarly critique, and civil society input should guide future amendments. A genuinely fair criminal justice system is not merely effective but also fair, humane, and constitutionally sound.  

AUTHOR(s): Ms. Swati Kumari, fourth-year law student at Lloyd Law College, Noida