Why lawyers are protesting over ‘twilight cases’ caught between old and new criminal laws

At a press conference on July 1, the day the three new criminal laws came into operation, Union Home Minister Amit Shah told reporters that “every aspect of the new laws has been discussed extensively with different stakeholders for four years and no law in Independent India has been discussed at such length”.

Quite apart from the fact that the government has declined to share any details of these purported discussions, the press conference itself threw up evidence that the change in the legal regime had not been adequately thought through.

Shah was asked to clarify what remained a point of ambiguity: would pending cases registered before July 1 be tried under the old laws or the new laws?

The home minister said: “If the date of crime is before July 1, then it will be tried under old laws, if it is later, it will be tried under new laws.”

Despite Shah’s clarification, confusion continues over twilight cases – criminal cases where there is uncertainty about which legal framework applies to them because different stages of the case occurred before and after the transition from the old to the new criminal laws on July 1.

What is making this worse is that in the last three weeks, governments and the high courts have issued multiple advisories about these cases, sometimes at odds with each other.

The result is chaos in the courts, with lawyers staging protests across the country and the Bar Council of India having to appeal to them to refrain from agitating against the new laws.

Twilight cases

July 1 witnessed a seismic change in the criminal justice system of India. Three new criminal laws that were notified in December last year came into operation that day.

The Indian Penal Code, 1860 – the comprehensive criminal code of India for the last 164 years that enumerated all the criminal offences and prescribed their punishments – was replaced by the Bharatiya Nyaya Sanhita, 2023.

The Indian Evidence Act, 1872 – the law that governed the admissibility of evidence in Indian courts – gave way to the Bharatiya Sakshya Adhiniyam, 2023.

The Code of Criminal Procedure, 1973 – the procedural law that provided the framework for the conduct of police investigations and trials – was replaced by theBharatiya Nagarik Suraksha Sanhita, 2023.

As Scroll had reported last month, even till a few days before the implementation of the new criminal laws, the police constabulary in and around Delhi was unsure how to proceed in cases where an offence had been committed before July 1 but the complaint was made on or after July 1. Would the first information report invoke the old Indian Penal Code or the new Bharatiya Nyaya Sanhita?

Less than a week before the laws came into effect, Delhi police and Telangana police issued circulars to clarify the matter. They said the old criminal laws would apply to crimes that had occurred and were registered before July 1, while crimes that occurred and were registered on or after July 1 would come under the new laws.

In the case of twilight cases in which the crime occurred before July 1 but was registered on or after July 1, the old substantive criminal law – the Indian Penal Code – and the new procedural criminal law – the Bharatiya Nagarik Suraksha Sanhita – would collectively apply. This means the offences made out against the accused would be drawn from the IPC, but the case would be investigated and prosecuted using the criminal procedure laid out in the new law.

However, even this clarification was not enough. Soon, more questions arose.

Conflicting interpretations

Every case passes through different stages of the criminal justice process – inquiry or investigation, trial and appeal. Cases registered before July 1 were stuck at different stages. Soon, high courts across India were faced with difficult questions about which law applied to them at what stage.

The high courts answered these questions in different voices.

On July 9, Justice Arun Monga of the Rajasthan High Court ruled that if a first information report for a crime had been filed before July 1, then the subsequent proceedings – that is, the investigation and the trial – would have to follow the old Criminal Procedure Code even if the investigation or trial commences after July 1.

Two days later, Justice Sumeet Goel of the Punjab and Haryana High Court took a contrary stand. He ruled that if the first information report had been lodged before July 1 but any court application or petition relating to it is filed on or after July 1, then the filing shall have to be done under the new Bharatiya Nagrik Suraksha Sanhita. Any court proceedings initiated under the old Criminal Procedure Code from July 1 onward would be invalid, the court held.

The same day, the Chief Justice of the Punjab and Haryana High Court issued a circular stating that fresh cases could be filed in the high court under both the new or the old criminal laws and the court registry could not object to it. Both these decisions of the Punjab and Haryana High Court are inconsistent with each other, although ordinarily, a circular issued by the chief justice of a court carries greater strength than a judicial order by a single judge.

In the Delhi High Court, Justice AJ Bhambhani also pronounced a set of orders on similar questions. On July 12, he ruled that in a first information report filed under the old criminal laws, the anticipatory bail application filed on or after July 1 will have to be filed and governed by the Bharatiya Nagrik Suraksha Sanhita.

In a separate ruling, he decided that if an appeal in a criminal matter was pending before the courts prior to July 1, it would continue to be governed by the Criminal Procedure Code.

But if an appeal had been filed after July 1, it would be governed by the Bharatiya Nagrik Suraksha Sanhita, even if the trial of the case was conducted under the Criminal Procedure Code. However, the Bhambhani declined to declare this as an authoritative interpretation of the question and left it open to be decided.

On July 15, Justice PG Ajithkumar of the Kerala High Court in an order referred to and largely endorsed the interpretation by Justice Goel of the Punjab and Haryana High Court via the judicial order on July 11.

‘Not well thought-through’

Criminal law experts that Scroll spoke with said the situation was chaotic and a consequence of poorly-drafted laws.

“It is a total mess,” said Arvind Verma, Professor of Criminal Justice at Indiana University, Bloomington in the United States and a former Indian Police Service officer in the Bihar cadre. “We are now dependent on individual judges to interpret the applicability and provisions of the new laws.”

Naveed Mehmood Ahmad, Senior Resident Fellow with the Criminal Justice Team at the legal policy think-tank Vidhi, told Scroll, “This is what happens when one makes sweeping laws without thinking things through.”

He said that High Courts will continue to render multiple interpretations on twilight cases. “How this will play out remains to be seen,” he said.

Verma had a gloomier outlook. “If someone doesn’t agree with a particular interpretation by a high court, they may appeal against it,” he said. “This will lead to increased litigation, further burdening the legal system.”

Ignoring past lessons

This uncertainty and confusion could have been anticipated and prepared for. When the earlier Criminal Procedure Code was enacted in 1973, questions over its applicability to “twilight” cases had led to prolonged litigation across courts.

Delhi-based criminal lawyer and legal writer Abhinav Sekhri notes that Section 531 of the Bharatiya Nagrik Suraksha Sanhita, which repealed the Criminal Procedure Code, 1973, has the same problems as Section 484 that had repealed the 1898 Code of Criminal Procedure.

Both times, the repeal sections split the criminal process into five parts: appeals, applications, trials, inquiries and investigations. But these terms are not clearly defined and there are several other stages in the criminal process apart from them, leading to confusion in the courts.

According to Sekhri, the primary defect in the repeal sections in the old and the new procedural law is that they deviated from the “ordinary rules of statutory interpretation whereby procedural laws are always given retrospective effect”. That is, a newly notified procedural law usually applies to pending matters.

Sekhri described the splitting up of criminal processes as “a method of remarkable inexactitude” in transitioning from the old regime to the new. This lack of clarity leads to differing interpretations by courts about what each term includes, he said.