Haste Makes Waste: Notes on Implementing India’s New Criminal Codes
Abhinav Sekhri*
Two years ago, on August 11, 2023, the Union Government of India introduced three new draft laws to replace the colonial codes which anchored the criminal process of erstwhile British India till 1947, and later independent India, for more than 150 years. The Indian Penal Code of 1860, the Indian Evidence Act of 1872, and the Criminal Procedure Code of 1973 (originally enacted in 1861), were to be replaced by the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Sakshya Adhiniyam (BSA), and the Bharatiya Nagarik Suraksha Sanhita (BNSS) respectively.
The laws were passed with unseemly haste in December 2023[1] and introduced with great publicity on July 1, 2024[2] — the entire primary material for which can be found on the MCLR+ website.[3] Compared to the publicity blitz on their introduction, however, there was hardly a mention as the measures passed their first anniversary in July 2025.[4] While honest feedback from within the state machinery may take some time to come, one hopes that there will soon be stock-taking efforts by research groups and scholarly assessments on their way. Till such time that these better-resourced efforts become available, let’s make do with some impressions from the ground.
Some Inertia, and Great Confusion about Repeal and Savings
Perhaps the anniversary fanfare has been muted because it does not feel like the new laws are in force. Given the huge backlog of cases, most work is still being carried on in terms of the previous regime.[5] On top of which there is the natural difficulty in adjusting to a new set of provisions after having worked with the old regime for decades. This has seen some courts, such as the Delhi High Court, issue instructions that pleadings under the new procedural law must mention the equivalent provision from the old law.[6] The ghost of the old codes is far from being vanquished just yet.
Where the inertia has become something more problematic is in how the judiciary has addressed the issues arising from the clunky provisions explaining the applicability of new laws to existing proceedings. A little background first. In the traditions of statutory drafting instilled during colonial rule, laws in independent India carry ‘repeal and savings’ clauses detailing how new laws replace prior ones. The three new criminal codes carry them too. When it comes to the procedural law — where such details matter most — the clause in the new law[7] is identical to the clause in the 1973 version[8] of the law, which had replaced an 1898 version.
Introduction of the 1973 version was vexed by litigation, which continued for more than five years afterwards for the creases to be (mostly) ironed out.[9] This was because the repeal clause did not have a simple thumb rule — all existing cases continue under the old law — but sought to create a nuanced scheme of stage-based application: a ‘case’ would be artificially divided into stages that had no pre-defined meanings within the law, and litigation at each stage would continue under the old regime till its completion, after which it would shift to the new regime.
This previous experience formed a trove of knowledge which could have been shared prior to rolling out the new laws, but this was not done in the ‘trainings’ that took place. Questions about how to apply the new procedural law to existing cases unsurprisingly arose from the get-go.[10] At this stage, we saw courts respond to the issue as if this was a problem of first impression, almost totally ignoring the rich vein of precedent available to help them.
One year later we still do not have any definitive judicial answers on how to apply the new criminal procedure law to existing cases. In a system where the Supreme Court can take up an issue ‘suo motu’ — or on its own terms — you would think there was no dearth of opportunity to do so.[11] But the ‘suo motu’ proceedings are usually reserved for more important matters such as taking care of stray dogs in a city.[12] The result is inconsistency and uncertainty, which do not bode well for any legislation and worse still for a comprehensive code.
New Interpretive Conundrums
In another dimension, India needed new criminal codes because a 150-year-long lifecycle had led to the language of the older laws being interpreted ceaselessly by courts and had created many instances where the text could no longer be understood without reference to holdings in one case or another.[13] There was a grave need to fuse the judicial interpretation with the text by introducing new codes. In this — our — dimension, however, this fusion did not occur. The perceived failure of the legislature to consider what the Court has said in respect of a specific offence even prompted a rebuke from the bench early on.[14]
In the year since the new laws arrived a fresh lifecycle of judicial intervention has begun. There are many examples, but one will suffice. The new procedural law has introduced a fresh right of hearing for accused persons at the pre-trial stage. In a system clogged by delays, it made little sense to elongate the trial further, but the haste of passing the new laws brooked few doubts over legislative wisdom.[15] Once the ball landed in the courts’ court, different appellate courts construed the clause in entirely different ways. Some pushed for an extensive hearing, seeing this new stage as a masterstroke to weed out bad cases, while others saw the delay problem looming and sought to limit the hearing’s scope.[16] Most recently, the Indian Supreme Court has simply excluded its application outright from one category of criminal cases, citing the policy problem of delays and very little legal argument.
Placing the Cart before the Horse
There is then the problem of placing the cart before the horse, best exemplified by the digitalization of the criminal process. This is an omnibus idea, suggesting that the new laws would employ cutting-edge technology, conduct hearings online, use forensic science, and create digital records of proceedings — in short, enhance digitalization, a key promotional push that continues to be part of official propaganda statements.[17] There are severe limitations in the enforcement of these ideas, though. Some limitations are hardwired into the law itself. For instance, the new criminal procedure code provides that all investigations should have forensic science analysis, but only within five years of the law coming into operation.[18]
In many other scenarios, the law needed an architecture for proper application and enforcement, but this was not in force and is yet to be realized. A case in point here is the electronic evidence law. Indian evidence law includes a certification requirement for introducing electronic evidence at trials.[19] Since this requirement was introduced in 2000, it has attracted great confusion, controversy, and calls for simplification. Yet, surprisingly, rather than simplify the legal regime, Parliament made it even more complicated by prescribing additional certification from an expert for such evidence to be led at trial.[20] There was only one problem: there are hardly any such experts available in the country. This practical reality has seen some courts proactively place the relevant clause in cold storage, while practitioners in other parts of the country keep struggling with finding ways of complying with it.[21]
A Different Idea of Codification?
In the 19th century, the codification enterprise in British India was a testament to a new idea of scientific lawmaking: That a law could comprehensively conceive of all possible problems, legislate for them in advance, and be involved in a task of perpetual revisions to account for hitherto unfamiliar scenarios. The honesty or vacuity of this professed aim notwithstanding, history does suggest that the initial idea held good for some time with multiple revisions made to the procedural code between 1860 and the 1890s, and some to the penal code as well.[22] But in the 20th century, the pace of change slowed down, the codification experiment faded in the face of common law tradition, and one accepted a measure of uncertainty occupying the statutory text.
Looking at the new laws, one wonders what lesson from history was learnt here. Was it the experience of the 19th century of codification, or the 20th? If the 19th century efforts are the barometer for judging India’s new codes, then this effort is an obvious failure. But if the 20th century is the yardstick, then have all the criticisms (mine included) of the new laws being nothing but a pretense been misguided? Given that, in last year’s comprehensive recodification effort, Indian legislators aimed to be truly decolonial, maybe the latter is what codification means for the 21st century post-colony: Not an effort to predict and pre-emptively provide solutions to all legal problems, but re-jigging what worked (while scoring political brownie points), knowing that in the end that the common law judicial tradition will do what it wants.
* Abhinav Sekhri is a legal writer and lawyer practicing in New Delhi, India. He specializes in criminal law, evidence, and procedure.
[1] Manish Tewari, ‘New criminal laws must go through Parliament again’ The New Indian Express (21 June 2024) [https://www.newindianexpress.com/opinions/2024/Jun/20/new-criminal-laws-must-go-through-parliament-again].
[2] Soibam Rocky Singh, ‘As new criminal laws take effect from July 1, legal community braces for change’ The Hindu (1 July 2024) [https://www.thehindu.com/news/national/as-new-criminal-laws-take-effect-from-july-1-legal-community-braces-for-change/article68352331.ece].
[3] MCLR+ Resources: India – Criminal Code Reform [https://crimlrev.net/mclr-resources-india-criminal-code-reform/].
[4] Ministry of Home Affairs, Government of India, ‘Union Home Minister and Minister of Cooperation Shri Amit Shah holds a press conference in New Delhi on three new criminal laws, calls the laws victim-centric and justice-oriented’ (1 July 2024) [https://www.pib.gov.in/PressReleasePage.aspx?PRID=2030088].
[5] Suchitra Kalyan Mohanty, ‘Only two HCs have full strength of judges amid pendency load’ The New Indian Express (5 October 2025) [https://www.newindianexpress.com/thesundaystandard/2025/Oct/05/only-two-hcs-have-full-strengthof-judges-amid-pendency-load].
[6] Nupur Thapliyal, ‘Delhi HC Tells Lawyers To Not Use Old Criminal Laws In New Filings, Asks Them To Also Mention New Criminal Laws For Filings In Old Cases’ LiveLaw (28 September 2024) [https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-new-criminal-laws-filings-270984].
[7] Section 531, Bhartiya Nagarik Suraksha Sanhita, 2023.
[8] Section 484, Code of Criminal Procedure, 1973.
[9] Abhinav Sekhri, ‘BNSS Repeal and Savings – Initial Views’ Proof of Guilt (16 July 2024) [https://theproofofguilt.blogspot.com/2024/07/bnss-repeal-and-savings-initial-views.html].
[10] Aditya Mukherjee and Jayati Sinha, ‘CrPC or BNSS?: The Tug of War Around July 01, 2024’ SCC Online Blog (23 August 2024) [https://www.scconline.com/blog/post/2024/08/23/crpc-or-bnss-the-tug-of-war-around-july-1-2024/].
[11] Gauri Kashyap, ‘Supreme Court Review 2024: Suo moto cases at an all-time high’ Supreme Court Observer (21 December 2024) [https://www.scobserver.in/journal/supreme-court-review-2024-suo-moto-cases-at-an-all-time-high/].
[12] V. Venkatesan, ‘Stray dog “menace”: Making sense of the Supreme Court’s intervention’ Supreme Court Observer (16 August 2025) [https://www.scobserver.in/journal/stray-dogs-menace-making-sense-of-the-supreme-courts-intervention/].
[13] Arghya Sengupta, ‘Inconsistent decisions’ The Hindu: Frontline (17 April 2013) [https://frontline.thehindu.com/cover-story/inconsistent-decisions/article4613887.ece].
[14] Abhinav Sekhri, ‘Perpetual Criminal Law “Reform” and Violence against Women: The Indian Codification Experiment Stumbles to the Starting Line’ [https://crimlrev.net/2024/05/26/perpetual-criminal-law-reform-and-violence-against-women-the-indian-codification-experiment-stumbles-to-the-starting-line-abhinav-sekhri/].
[15] Amir Suhail, ‘Opportunity of Hearing to the Proposed Accused at Pre-Cognizance Stage in Complaint Cases: Implications of Proviso to Section 223(1) of the BNSS’ SCC Online Blog (25 June 2025) [https://www.scconline.com/blog/post/2025/06/25/opportunity-of-hearing-to-the-proposed-accused-at-pre-cognizance-stage-in-complaint-cases-implications-of-proviso-to-section-2231-of-the-bnss/].
[16] Tellmy Jolly, ‘[Section 223 BNSS] Notice Of Hearing Can Be Issued To Prospective Accused Only After Examining Complainant And Witnesses: Kerala High Court’ LiveLaw (30 January 2025) [https://www.scconline.com/blog/post/2025/06/25/opportunity-of-hearing-to-the-proposed-accused-at-pre-cognizance-stage-in-complaint-cases-implications-of-proviso-to-section-2231-of-the-bnss/]; Mustafa Plumber, ‘S. 223 BNSS | Notice To Accused Can’t Be Issued Before Recording Sworn Statement Of Complainant & Witness: Karnataka HC Lays Down Procedure’ Livelaw (27 September 2024) [https://www.livelaw.in/high-court/karnataka-high-court/karnataka-high-court-clarifies-procedure-issuance-of-notice-private-complaints-section-223-bnss-270936].
[17] Srishti Ojha, ‘Criminal Justice Reboot-8: Old CrPC gets a huge digital & tech boost in new avatar’ India Today (29 June 2024) [https://www.indiatoday.in/law/story/criminal-justice-reboot-8-old-crpc-gets-a-huge-digital-tech-boost-in-new-avatar-2559912-2024-06-29].
[18] Section 176(3), Bhartiya Nagarik Suraksha Sanhita, 2023.
[19] Section 65(4), Indian Evidence Act, 1872.
[20] Section 63(4), Bhartiya Sakshya Adhiniyam, 2023.
[21] Upasana Sajeev, ‘S. 63(4) BSA | MEITY Must Notify Electronic Evidence Experts In Each District Of TN Within 3 Months: Madras High Court’ LiveLaw (31 Oct 2024) [https://www.livelaw.in/high-court/madras-high-court/madras-high-court-section-63-bsa-meity-notify-experts-within-3-months-274015].
[22] The Criminal Procedure Code was introduced in 1861, and amended comprehensively in 1872, 1882, 1898 and 1923, with minor revisions taking place in between as well, prompted by specific judicial decisions or events. In respect of the Indian Penal Code, amendments were introduced as and when gaps were identified, often due to judicial decisions. Most famously, perhaps, sedition was inserted as a distinct offence in the code in 1870, and its exceptions changed in 1898.
Suggested Citation: Abhinav Sekhri, “Haste Makes Waste: Notes on Implementing India’s New Criminal Codes,” MCLR+ (crimlrev.net) (Oct. 23, 2025) (https://crimlrev.net/2025/10/23/haste-makes-waste-notes-on-implementing-indias-new-criminal-codes-abhinav-sekhri/) [➡︎ pdf]