Author’s Note
The passage of the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, 2023 has been hailed as a transformative moment in India’s criminal justice history — a legislative effort aimed at dismantling colonial remnants and modernizing the justice delivery system. However, while the intent is commendable, the practical challenges confronting the system—ranging from police reform and prosecutorial inefficiency to judicial backlog and prison overcrowding—remain largely unaddressed.
This article critically evaluates whether the enactment of new procedural and penal codes alone can achieve the promised transformation or whether the structural bottlenecks within the four pillars of the criminal justice system—police, prosecution, judiciary, and prisons—continue to impede the realization of fast and fair justice.
1. The Law as a Catalyst for Change
Law is a powerful instrument of social transformation, capable of shaping societal behavior and institutional accountability. Criminal law, in particular, acts as the moral compass of society, reflecting contemporary values while maintaining order and justice.
While the introduction of new codes symbolizes political resolve to reform the criminal justice system and shed colonial legacies, legislative replacement without systemic reform risks remaining symbolic. A modern justice system cannot merely be built on renumbered statutes — it requires robust institutional capacity, accountability, and administrative will.
2. The Constitutional Context: Division of Responsibility
Parliament is constitutionally empowered to legislate on criminal law and procedure under Entries 1, 2, and 12 of the Concurrent List, but law enforcement, policing, and prisons fall under the State List. Thus, implementation and administration of justice fundamentally rest with the states.
The four foundational pillars—police, prosecution, courts, and prisons—form the operational backbone of the system. Without the active cooperation and modernization of these pillars, even the most progressive statutes will fail to deliver tangible justice.
3. The Police: Still Shackled by the Colonial Legacy
The police remain the first point of contact for justice-seekers, yet they continue to function under the Police Act of 1861 — a colonial relic designed for control, not service. Despite multiple commissions and the landmark judgment in Prakash Singh v. Union of India (2006), comprehensive police reform remains elusive.
Persistent Challenges:
- Vacancies: Nearly 21% of sanctioned posts (over 5.3 lakh) remain unfilled. The police-population ratio stands at 152.8 per lakh, far below the UN-recommended 222 per lakh.
- Structural Weakness: Only six jurisdictions have separated law and order from the investigation wing, as recommended by reform committees.
- Training Deficit: Outdated training modules, lack of forensic capacity, and insufficient digital skills hinder effective policing.
Violations and Judicial Interventions:
Arbitrary arrests, non-registration of FIRs, and incomplete investigations continue to plague the system despite repeated judicial interventions.
- Joginder Kumar v. State of U.P. (1993) and Arnesh Kumar v. State of Bihar (2014) emphasized the need for justifiable arrests.
- Lalita Kumari v. State of U.P. (2014) made FIR registration mandatory.
- Ritu Chhabaria v. Union of India (2023) condemned the filing of incomplete charge sheets to deny bail rights.
- Pankaj Bansal v. Union of India (2023) reinforced that reasons for arrest must be conveyed in writing.
These recurring violations show that the problem lies not in the absence of law, but in its consistent disregard.
4. The Prosecution: The Weakest Link in the Chain
In an adversarial system, the prosecutor’s role is to represent justice—not merely secure convictions. Yet, India’s prosecution services suffer from chronic neglect.
Key Deficiencies:
- Lack of Experience: Many prosecutors are fresh law graduates with limited courtroom exposure.
- Political Interference: Despite the creation of the Directorate of Prosecution, true autonomy is undermined by overlapping control with the police.
- Resource Deficiency: Limited access to forensic support, research assistance, and digital tools weakens case preparation.
The Supreme Court in State of Gujarat v. Kishanbhai (2014) lamented that acquittals often result from prosecutorial incompetence, urging accountability for investigating and prosecuting officers in such cases.
Without strengthening the prosecutorial wing, no law can ensure swift or fair trials.
5. The Judiciary: Overburdened and Understaffed
Despite impressive individual performances, the judiciary struggles under the weight of systemic inefficiency.
- As of 2023, 4.43 crore cases remain pending in Indian courts.
- The judge-to-population ratio stands at 21 per million, far below the recommended 50 per million.
- Inadequate courtrooms, digital infrastructure gaps, and excessive adjournments further compound delays.
While the Supreme Court disposed of over 52,000 cases in 2023, the sheer volume of pending cases highlights that numerical efficiency alone cannot substitute structural reform. The opaque judicial appointments system and post-retirement incentives also invite public skepticism.
True judicial reform demands not only numerical enhancement but also procedural streamlining, institutional transparency, and efficient case management.
6. The Prison System: Forgotten Custodians of Reform
Prisons—governed by the Prisons Act, 1894—are another colonial relic. The 245th Parliamentary Standing Committee Report (2023) revealed alarming statistics:
- Average occupancy: 130.2% across India.
- Undertrial prisoners: 77.1% of total inmates.
- Video conferencing use: Merely 6.68% of interviews in 2022 and 5.6% in 2023 were conducted through digital means despite 83.54% of jails being equipped.
Section 436A Cr.P.C., which mandates release of undertrials after serving half their maximum sentence, remains grossly underutilized. Uttar Pradesh and Delhi, in particular, have failed to extend its benefits to eligible prisoners.
Prisons are intended as reformative institutions but continue to function as punitive warehouses—overcrowded, underfunded, and under-monitored.
7. Conclusion: Reform Beyond Renumbering
The National Crime Records Bureau (NCRB) Report, 2022 highlights both progress and paradox: while the overall crime rate declined by 4.5%, charge-sheeting remains at 71.3%. The persistence of delays, underreporting, and ineffective enforcement points to a systemic malaise, not merely legislative deficiency.
The Bharatiya Nagarik Suraksha Sanhita, 2023 and its companion codes represent a sincere attempt at modernization, but they cannot substitute institutional reform. Without addressing the structural deficits in manpower, infrastructure, accountability, and training, legislative overhauls will remain cosmetic.
The States must now shoulder their constitutional responsibility — to fund, modernize, and empower the four pillars of justice. Fast-track justice cannot emerge from statutes alone; it requires efficient institutions, adequate resources, and a culture of accountability.
Justice delayed will continue to be justice denied — unless India’s reform agenda extends beyond legislative showmanship to genuine systemic transformation.
Disclaimer
The views and opinions expressed in this article are solely those of the author, R.K. Samyal, Advocate, based on his independent analysis of India’s evolving criminal justice framework. They do not necessarily represent the views of any institution or forum with which the author is associated. This article is intended solely for academic and informational purposes and should not be construed as legal advice.