Sweeping changes are on the horizon for India's criminal justice system, with the government set to replace the longstanding Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act with new laws starting July 1st. The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam aim to overhaul and modernize archaic British-era legislation still in force. However, several leading figures from the Bar Council of Delhi (BCD) have raised serious concerns about certain provisions in the new laws that they believe could undermine civil liberties and due process.

In a letter to Union Home Minister Amit Shah dated March 27th, BCD Vice Chairman Sanjeev Nasiar, Secretary Kumar Mukesh, former Chairman and current member K.C. Mittal, and former Vice Chairman and member Himal Akhtar urged the government to reconsider implementation of these sweeping reforms. Their primary objection relates to the significant increase in the maximum period of police custody permitted under the new laws.

Alarming Extension of Police Remand

Currently, under the Code of Criminal Procedure 1973, the maximum period an accused can be remanded to police custody is 15 days. The proposed Bharatiya Nagarik Suraksha Sanhita seeks to extend this to between 60-90 days in certain cases. This represents a staggering four to six-fold increase in the time a suspect can be detained by police before being presented to a court.

The BCD office-bearers warn that enabling such lengthy periods of custody creates a dangerous situation ripe for abuse of power and human rights violations. "The new laws will enable four to six times longer periods of custody, which could become an instrument in the hands of unscrupulous police officials to commit atrocities and custodial torture," their letter states bluntly.

They argue that the existing 15-day limit was carefully instituted to prevent harassment, ensure expeditious investigations, and act as a check on the arbitrary exercise of power by police and investigative agencies. Extending this period so dramatically undermines those crucial safeguards in the name of expediency.

"It's against Fundamental Rule of Civil Liberty and Human Rights...The police can't be made to assume such powers under criminal justice system," the letter declares.

History of Custodial Torture in India

The BCD's vehement opposition to lengthier remand periods stems from India's troubling track record of custodial violence, torture, and even extrajudicial killings by law enforcement officials. Despite constitutional protections and frequent judicial admonishments against such practices, custodial torture and deaths remain alarmingly prevalent.

Just last year, the National Campaign Against Torture documented no fewer than 107 deaths in police custody across India. Countless more cases of assault, forced confessions, and other abuses occur regularly behind closed doors. Extending the maximum remand period increases the window for such human rights violations to occur with less scrutiny or accountability.

The Delhi High Court itself has repeatedly called out the national capital's police for a "routine" pattern of custodial violence and torture, lamenting that such abuses show no signs of ending despite innumerable court orders and guidelines issued over the decades. Just last month, the High Court took the rare step of initiating criminal contempt proceedings against Delhi police officials for flagrantly disregarding its orders in a custodial death case.

With such a troubling backdrop, the bar leaders argue there is no justification for vastly expanding the potential duration of police custody and its associated risks. As the letter states, "It has serious evil consequences."

Moreover, they cite the landmark 1980 Supreme Court case of Sunil Batra v. Delhi Administration, which held that handcuffing of prisoners and undignified treatment is "inhuman, unreasonable, and against the constitutional mandate." The new laws propose handcuffing of undertrials and convicts in certain circumstances, another provision the BCD office-bearers condemn as unconstitutional.

Constitutionality and Practicality of Other Provisions Questioned

Beyond custody and prisoner treatment concerns, the BCD takes issue with several other components of the proposed legislation:

Community Service as Punishment: The letter argues that introducing community service punishments like cleaning public toilets or streets is "totally against human dignity" and an impractical, unregulated mechanism ripe for further abuse.

Mixing of Hindi & English: By reformulating British-era laws that have become entrenched legal precedent using a mix of Hindi and English terminology, the new codes create confusion and make it necessary for all legal stakeholders to essentially relearn basic principles from scratch, setting up "more chaotic situations daily."

Evidentiary Issues: Provisions related to organized crime, terrorist acts, and admissibility of documentary evidence are also questioned as being overly broad or unclear.

Arbitrary and Unspecified Crimes: The BCD raises concerns about certain crimes being defined vaguely, such as "false or misleading publication of information" or "endangering the sovereignty and integrity of India," creating room for potential overreach.

At its core, the letter reflects a wariness of granting law enforcement sweeping new powers free of sufficient checks and balances. As the authors put it, "in any civilisation, the police could not be given a free hand with wide-ranging powers as that could lead to a 'police raj' rather than the rule of law in accordance with the Constitution of India."

The Central Government's Stance

For its part, the Central Government has framed the new criminal reform laws as a long-overdue modernization effort aimed at establishing criminal laws that are "contemporary, comprehensive, scientific and in line with the principles of human rights and natural justice."

In introducing the bills, the Home Ministry stressed they incorporate recommendations from experts, judgments of constitutional courts, and global best practices. It cited goals like:

1. Shifting towards a principle-based as opposed to archaic case-based legislation
2. Making justice more accessible by codifying laws in Hindi and other regional languages
3. Establishing a comprehensive framework for cyber crimes
4. Modernizing investigation procedures and evidence standards
5. Strengthening human rights protections like establishing statutory rights of victims and accused
6. Regarding the extension of police remand periods specifically, the Ministry has stated this will allow for more thorough evidence collection in complex, technology-facilitated crimes while still being subject to judicial oversight.

A Balancing Act Between Enforcement and Civil Liberties

Unquestionably, the Indian Penal Code and associated criminal laws are archaic relics badly in need of an overhaul after being largely untouched since being transplanted from 19th century Britain. Crimes facilitated by modern technology and communications, issues like organized crime, terrorism, corruption, and human trafficking all represent new challenges requiring updated legal frameworks.

However, the BCD office-bearers' objections reflect a valid concern that in pursuit of more effective law enforcement, core civil liberties and constitutional rights must not be bargained away. Balancing those interests has always been a delicate line to walk in any justice system.

India's own sordid history of police abuses, political overreach, and human rights violations perpetrated in the name of security and law and order should reinforce the need for robust due process protections. Granting law enforcement expansive new powers in the preventive detention and interrogation realms is a risky proposition without commensurately strong accountability mechanisms.

At the same time, the need to equip police and prosecutors with modernized tools and evidentiary procedures to counter increasingly sophisticated criminal enterprises is inarguable in the 21st century. The scales must be balanced appropriately.

Public Dialogue and Review Process Needed

Ultimately, reforms as sweeping and impactful as replacing foundational criminal codes necessitate careful scrutiny, extensive public dialogue, and a willingness to revisit and refine provisions that threaten core civil liberties more than ensuring practical enforcement. The system-wide repercussions are too monumental to be rushed into implementation.

Several of the BCD office-bearers' critiques about vaguely defined crimes, mixing languages and legal terminologies, or introducing impractical punishments like conscripted community service reflect a need for more comprehensive review beyond security imperatives alone.

With the new laws set to take effect in just a few months' time, India faces a tight window to have these conversations and find the right balance. The government would be wise to engage stakeholders like the bar associations, rights advocates, law enforcement, and the judiciary in an open process to address legitimate concerns.

Unwise implementation that swings too far in an enforcement-over-liberty approach could prove even more destabilizing than the outdated laws the reforms aim to replace. Public faith and constitutional legitimacy should remain paramount priorities alongside substantive policy efficacy goals.

Comprehensive criminal justice reform is arduous by nature and the new regime is sure to face further legal challenges and evolving interpretations for years to come even after implementation. But getting the foundations correct from the outset to preserve India's democratic values