Below is the full transcript of the inaugural remarks of the Chief Justice of India, D.Y. Chandrachud, at a conference on ‘India’s Progressive Path in the Administration of Criminal Justice System’ in New Delhi on 20 April.
A very good morning – Shri Arjun Ram Meghwal, Hon’ble Minister of State, Independent Charge, Ministry of Law and Justice; Shri R Venkataramani, learned Attorney General for India, Shri Tushar Mehta, learned Solicitor General of India; Shri SKG Rahate, Dr Rajiv Mani, Dr Anju Rathi Rana, Government of India, and to everyone present here.
I am delighted to be here at the Conference on India’s Progressive Path in the Administration of Criminal Justice System. India is set for a significant overhaul of its criminal justice system with the upcoming implementation of three new criminal laws. The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam will replace the Indian Penal Code 1860, the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872 respectively. These laws signify a watershed moment for our society because no law affects the day-to-day conduct of our society like the criminal law. Criminal law directs the moral arc of a nation and has the ability of depriving people of their cherished liberties. The underlying justification for the substantive provisions is the age old harm principle which is best summarised in the saying, ‘Your right to swing your arms ends just where the other man’s nose begins.’ Procedural law which governs crimes from the state of setting the criminal process in motion to the conviction for the commission of the offence ensures that no person is charged and subsequently convicted for offences without due process of law.
The traditional harm principle has found resonance with the understanding that crime is immoral. The father of criminology, Raffaele Garofalo defined crime as “an immoral and harmful act that is regarded as criminal by public opinion because it is an injury to so much of the moral sense as is possessed by a community – a measure which is indispensable for the adaptation of the individual to society.” The ideals underpinning the combination of harm and immorality are premised on the perception that deprivation of liberty leads to repentance and moral salvation.
There are two problems with this approach. The first one is that it is not a victim-oriented approach. The impact of the harm on the victim is not considered. Victims of crimes often feel like their agency over their own decisions is lost by the commission of a crime. Our laws must aim to give victims a sense of agency and control in the criminal process as well as a sense of justice. The second problem with the harm and immorality approach is that it advances a perpetrator perspective to crime which views crimes as an individual failing. It does not address systemic causes which push people to commit crimes. For example, a law addressing gender violence will rightly condemn such violence as immoral and punish it. But it does little to change the sexist and patriarchal framework of our society which induces the commission of these crimes.
Our laws need to address these concerns and obviate age old issues like delays in examination of witnesses, conclusion of trials, overcrowding of prisons and the issue of undertrial prisoners. The 248th Report of the Standing Committee of the Rajya Sabha on the Bharatiya Sakshya Samhita of 10 November 2023 noted that the Indian criminal justice system has struggled to keep pace with the profound technological changes our socio- economic milieu that have radically re-imagined the way in which crimes manifest in the society. The growing scope of technology and new age crime which use the digital landscape to create networks of collaborative units to commit crimes cannot be pinned to an investigative situs. This has presented challenges in investigation of crimes, admission of evidence and prosecution as well as justice delivery. As the distinguished American jurist Justice Oliver Wendell Holmes said in “Law in Science – Science in Law” “Everyone instinctively recognizes that in these days the justification of a law for us cannot be found in the fact that our fathers always have followed it. It must be found in some help which the law brings toward reaching a social end which the governing power of the community has made up its mind that it wants.
The newly enacted criminal laws have transitioned India’s legal framework on criminal justice into the new age. Much needed improvements have been introduced to protect victim interests and carry out the investigation and prosecution of offences efficiently. The BNSS encompasses a holistic approach to deal with crimes in the digital age. It prescribes audio visual recording of search and seizures and the presence of a forensic expert at the crime scene for offences punishable with more than seven years imprisonment. The audio-visual recording of search and seizures is an important tool for the prosecution as well as for protecting the civil liberties of citizens. The judicial scrutiny would safeguard the rights of citizens against procedural impropriety during search and seizures.
Similarly, the presence of a forensic expert at the scene of the crime will enhance the efficiency of the investigating team and allow for crimes to be decoded with the aid of the latest advancements in forensic technology. While we make strides in this direction, we must now confront the challenges of fulfilling the aims of the new criminal legislations. Detailed rules need to be formulated on the type of devices to be used for recording, incorporating the principles of natural justice and lay down the consequences of not carrying out such recording.
Since I took over as the Chief Justice of India, and even before that when I was the chairperson of the e-Committee of the Supreme Court, I have advocated for creating a natively digital court infrastructure. We have strategically and persistently worked towards creating technologically equipped court systems which can facilitate a citizen centric and efficient mechanism from the filing of a case to its disposal. It was therefore very heartening to notice that Section 532 of the BNSS allows for all trials, inquiries, and proceedings under the Code to be conducted electronically. As laudable as this addition is, we must continuously introspect and protect the privacy of the accused as well as the victim when dealing with digitisation of proceedings and creating digital evidence. In the digital age, the data and sensitive information of person’s has gained paramount importance. This data can allow us to gain unparalleled efficiency and ease. However, the power which comes with personal data puts a corresponding duty to make systems which are immune to penetration and leakage of the data.
In the courts, we confront the challenges of data leak every day. The safety of a person, the stigma attached to an accused, the threat perception of a witness will be compromised if the privacy of the stakeholders is not protected. We must inspire public confidence securing the privacy of our citizens to gain an overall efficiency and trust in the criminal justice system. Technology holds the key to a futuristic court system. It eases the court procedures for the litigants, court staff, and the judges. In particular, clauses (iii) and (v) of Section 532 of the BNSS allow for the examination of witnesses and evidence through the electronic mode. The access ushered in by this provision will impact the access of witnesses to the courts, and reduce delays in trials on account of absence of witnesses.
While the new criminal laws create provisions which are synchronised to our times, we must also ensure that the infrastructure accompanying these procedures are developed adequately for the country to reap the benefits of the new laws. This naturally means that we must heavily invest in capacity building of our forensic experts, conduct training of investigating officers, and invest in our court system. Key provisions of the new criminal law would only produce a positive impact if these investments are made as soon as possible. Let us take the example of the timeline prescribed for the completion of trials and pronouncement of judgments after the judgment is reserved. The BNSS provides that criminal trials must be completed in three years and that a judgment must be pronounced within 45 days of it being reserved. This stipulation is a breath of fresh air for addressing the issue of case pendency as well as the rights of the victim and the accused in a criminal case. However, if the court infrastructure and the prosecution lack material resources to harness technology and conduct an efficient and speedy trial then the guarantees of the BNSS may run the risk of becoming merely directory and unimplementable.
Citizen centric approaches have been adopted for supply of a copy of the First Information Report to the victim and to inform them about the progress of investigation, including by digital means. Additionally, the BNSS has made a positive development in protecting the fundamental rights of undertrial prisoners. Section 481 of the BNSS prescribes default bail for an accused person who has undergone one-third of the term of punishment for the offence charged against him. This is a reduction from the earlier prescription under the CrPC where an accused must have undergone half of the term in prison for the offence he is charged with.
The BNSS prescribes that in cases where the punishment for the offence is seven years or more, the victim shall be given an opportunity of being heard before withdrawal of the case by the Government. Summary trial has been made mandatory for petty and less serious offences. The magisterial system has also been streamlined.
Bearing in mind the evolving nature of crime, and the emergence of new digital crimes, it is imperative to boost the infrastructure and capacity of our police forces. Crime in contemporary times reflects the technological advancement of our age. Unfortunately, because of the inertia in the law and the procedures governing investigation, our ability to hold criminals to account has been affected. Our attention must be focused on improving investigations by allowing for multi-disciplinary investigating teams with law enforcement officers, and domain experts in the field of cyber-crime, and pattern recognition.
Technology must also be harnessed to improve the capacity of prosecutions and the court to work more efficiently. The prosecution can use technology to streamline paperwork and data to identify similar cases. This will enable the courts to streamline the listing process. The digitisation of files, and infrastructure for conducting witness examination online must be harnessed to record and peruse voluminous material with the swiftness of a tap on the screen.
Our laws and their implementation is an ever evolving area. There is no finality to any law or the manner of its implementation. However, we must be willing to embrace positive changes to meet the needs of our times. I expect that with the implementation of the new criminal laws, we will discover loopholes and areas which need to be addressed. Such debates would be helpful in enhancing the efficiency of our criminal justice systems. However, the ideological framework at the heart of our analysis must be justice oriented with a civil liberty centric approach which balances the interests of the victim and the accused.
The moral advantage of a criminal justice system in a democratic society is that it affords the victim an opportunity to reclaim their agency and confront an accused. It also lies in the fact that all persons, no matter how high of low, would get full opportunity to defend themselves before a court of law. I hope that the various panel discussions in this conference spark a positive conversation on various aspects of the new criminal laws. These conversations are vital for our collective growth in an evolving legal landscape. As we look to the future we must learn from our past and take its teachings with us. To conclude with a quote by Justice Oliver Wendell Holmes, “The law is the witness and external deposit of our moral life. Its history is the history of moral development of
the race.”
Also read: 3 new criminal laws to come into effect from 1 July, section on 10-yr jail for hit & run put on hold