Senior Advocate Amit Desai's Critical Take Of BNS | Ram Jethmalani Lecture Series

New Delhi: In the 5th edition of the Ram Jethmalani Memorial Lecture Series hosted by Republic Media Network's Editor-in-Chief, Arnab Goswami ; senior advocate Amit Desai offered his critical perspective on the new criminal laws recently passed by the Union government.

The event, brought together the top legal minds of the country to discuss and decode the newly introduced criminal Law, in which law treats first-time offenders with relaxations. 

Son of prominent lawyer Krishnakant Desai, Amit Desai expressed his concerns over the three newly enacted laws. 

Desai speaking at the lecture series, raised questions about whether these laws align with the core principles upheld by Jethmalani throughout his life, liberty, fearlessness, free speech, innovation, the rule of law, equality, and justice.

 Desai added, "The timing is significant as we mark the 75th year of independence with the introduction of new criminal laws. Today, Ram Jethmalani lives on as an idea, the idea of liberty, fearlessness, personal freedom, free speech, innovation, the rule of law, equality, and justice. But the question is, do these ideas find a place in the new laws?"

Desai specifically highlighted concerns about liberty and the Supreme Court’s recent struggle to balance individual freedoms at the address in the lecture at Republic. He  stated that "the Bharatiya Nyaya Sanhita (BNS) had adequately addressed issues related to the powers of arrest and bail, has the BNSS truly responded to these evolving challenges?"

Desai said that, "BNS Section 47 does not clarify that the grounds for arrest must be communicated in writing at the time of arrest."

Further critiquing , Desai stated, "Section 187 of the BNS modifies the rules around arrest but fails to ensure that a magistrate's first duty is to verify whether all constitutional and statutory provisions have been met before the accused is produced. If those provisions are not met, the accused should be immediately released."

Desai also took issue with changes to the rules around police remand. Previously, remand was limited to a 15-day period after the accused was presented before a magistrate. "Now, this has been changed to 15 days within the initial 40 or 60 days of the first production," Desai pointed out, adding that this effectively overturns the landmark ‘Anupam Kulkarni case’, in which Ram Jethmalani successfully limited police remand to 15 days to prevent abuse. "The original 15-day limit was designed to protect the accused from wrongful police actions. We are not meant to become a police state."

Desai expressed concerns about the broader direction of these changes and said that "This shift seems to move away from the protective approach traditionally taken by the courts."

In reflecting on these changes, Desai imagined what Ram Jethmalani might say, suggesting that "for even these seemingly minor alterations, Jethmalani would have said that these changes remind me of the police powers from the pre-independence era."

He concluded with a broader critique of the new laws, warning that they reflect a more retributive than reformative approach. "We seem to be moving towards a system that favors punishment over reform. More than 20% of offenses now carry the death penalty, compared to the previous laws," Desai stated.