Editorial 1 : New code, old capacity
Context: New criminal codes, same old challenges of the justice system
New Criminal Code
- Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) replace the longstanding IPC, CrPC, and Evidence Act with the intention to safeguard the rights of the public and to eliminate obstacles in the people’s access to those rights and adapt them according to present-day needs.
Speeding Up Trials
- According to the new laws judgments must now be delivered within 45 days after trial completion, and charges must be framed within 60 days of the first hearing.
- This raises concerns about the system’s preparedness to cope with the stringent timelines.
- National Judicial Data Grid (NJDG) data show that 5.1 crore cases are pending across all courts.
- The workload that averaged 2,391 per judge in 2022 has gone up to 2,474 in 2024.
- This has led to people being held in prisons while awaiting trial or investigation. Between 2020 and 2022, the number of undertrials has gone up from 3.7 lakh to 4.2 lakh.
Bail Provisions
- Prisoners must be afforded more opportunity for bail, the BNSS now extends the provision of bail, as provided under CrPC’s Section 436A, to allow first-time offenders who have served a third of their sentence to apply for bail.
- The shortening of time is welcome. But practice, indicates a considerable laxness across the justice system in ensuring that “bail not jail” is a reality.
Safeguards against unjust incarceration in the system
- Free legal aid
- Prison visiting lawyers for anyone without representation.
- Undertrial review committees that recommend which inmates could be given bail.
- State Human Rights Commissions whose members can visit jails anytime to see if there are overstays.
Increasing the Numbers
- The entire system, from police to legal aid to the judiciary, will need significant increases in numbers in order to overcome the concerns.
- The India Justice Report records a 21% vacancy in lower courts and a 30% vacancy in high courts.
- Every increase in the number of judges will require a bump up in physical infrastructure and supporting administrative manpower and machinery.
- A cost-benefit analysis that measures the cost of increasing human resources and infrastructure against the administrative cost of lengthening trials and incarceration is imperative.
Sexual Violence and Female Police
- The BNSS mandates that statements of victims in sexual violence cases must be recorded in the presence of female police officers and must be video graphed.
- Despite the sharp rise in gender-based violence cases, only a small percentage of women officers are at ranks qualified to take statements – 80% of women police personnel are in the constabulary.
- The growing number and load of cases on a small number of officers can discourage the victims to come forward and can jeopardise the trust between victims and law enforcement.
Forensic Investigations
- The new laws mandate forensic investigations for crimes punishable by seven years or more and videography for search and seizures.
- The move from coercion towards more rigorous evidence-based law enforcement must be welcomed.
- But there is a chronic shortage of labs and trained forensic professionals, inadequate infrastructure, mismatches between human resources, equipment and demands from the ground, and of course underfunding.
Technology and Evidence
- The embrace of technology assumes that electronic evidence presented in court is tamper-proof and that the chain of evidence has remained intact as it passes from hand to hand over time.
- Standards to ensure that the integrity of all kinds of evidence has been maintained will need to be overhauled with rapid changes in technology.
- Judges will need to be upskilled to be able to provide reasoned decisions for accepting or rejecting the evidence’s authenticity.
Way Forward
- The success of the new laws requires comprehensive, across-the-board training to upgrade quality and knowledge and change mindsets.
- Decades of neglect in training infrastructure requires urgent correction, ensuring that all stakeholders (police, forensic personnel, public prosecutors, defence counsel, and judges) are equipped to apply the law with utmost fairness.
- Without urgent attention to the foundational issues, the promise of a faster, more accessible and equitable criminal justice system will fail to be implemented.
Editorial 2 : Dividing Water
Context: Tread cautiously on Indus Water Treaty (IWT)
Indus Waters Treaty: Review and Modification
- India is asking Pakistan for review and modification of the Indus Waters Treaty.
- The two countries have a longstanding dispute over two run-of-the-river power projects — the fully operational Kishanganga on the Jhelum, and the under-construction Ratle project on the Chenab.
- IWT asks India to “let flow” the waters of these western rivers to Pakistan.
- The Treaty allows India to use these rivers’ waters for non-consumptive purposes, including projects that use the natural flow of these water bodies.
- Pakistan objects to these projects despite the Hague-based Permanent Court of Arbitration (PCA) giving India a go-ahead for Kishanganga.
- In July 2023 the PCA intervened and said it has the competence to adjudicate on Kishanganga and Ratle.
- India disagreed on the ground that the next step under the IWT’s graded approach should be mediation by a neutral expert.
India’s point of view
- India’s claim stems from the role India assigns to renewable energy in its climate action plans.
- The 850-MW Ratle hydroelectric project is a part of its approach. It also has huge employment-generating capacity.
- The IWT provides for modification from time to time.
- India has legitimate ecological and economic concerns but talks on an energy-sharing agreement, which should have been the next step to IWT, have proved a non-starter.
Way Forward
- IWT has withstood war and terrorism.
- Both the countries should continue to safeguard the spirit of cooperation underlined in the treaty.
- Climate change, has amplified the IWT’s underlying principle that water doesn’t recognise national borders and upper riparians have a responsibility to lower riparians.
- Both India and Pakistan should make efforts to protect the treaty in times of myriad ecological crises.