Analysis of Criminal Amendment Bills

INTRODUCTION

With the intent to provide swift and speedy justice to, On 11th August 2023, the Union Home Minister of India introduced three bills in the lower house of the parliament, which were set to change how the entire criminal law system was being governed in India. The bills with several amendments were reintroduced on 12th December 2023. With the assent of Hon’ble President Smt. Droupadi Murmu, on 25th December 2023, the new bills have been passed by the parliament of India and have become Acts known as the Bharatiya Nyaya Sanhita, Baratiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Sanhita and are set to replace the Indian Penal Code, 1860, Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 respectively once they become operative.

The bills were referred to the Parliament Standing Committee on Home Affairs. The committee then proposed the new bills suggesting various changes in the criminal justice system in India. While introducing the new bills, respected Minister of Home Affairs Mr Amit Shah said:

“There are no major changes. We had continued with the old bills, several official amendments would have had to be made, so we decided to introduce new bills instead. Adequate time 48 hours were given to the members to study the bills. We do not want to pass such important pieces of legislation in a hurry.”

HISTORY OF CRIMINAL JUSTICE SYSTEM IN INDIA

The criminal justice system aims to achieve two primary objectives: punishing the guilty and protecting the innocent. In a democratic society, it is expected to ensure the safety and security of the public by effectively, swiftly, and legally addressing crimes and criminals. This is done by maximising the detection of reported crimes, promptly convicting the accused, imposing suitable punishments, and preventing repeat offences. The system ultimately seeks to reduce crime and maintain societal order.

Let’s discuss how the criminal justice system has worked and its evolution from ancient times to the present:

Criminal Justice System During Ancient Period:

During ancient times, laws were based on ‘Dharma’, which encompassed various rules of right conduct found in religious scriptures such as ‘Puranas’, ‘Smritis’, and ‘Shrutis’. The king’s authority was derived from ‘Dharma’, and he was expected to uphold it. The distinction between civil wrongs and criminal offences was clear, with civil wrongs related to disputes over wealth and property, and criminal offences including murder, theft, robbery, and assault. Judicial decisions were based on legal texts, social customs, and the king’s edicts, with the king being prohibited from violating the decisions.

The criminal justice system in a democratic society aims to protect the public, punish offenders, and rehabilitate criminals. It follows a process of arresting and trying offenders, and if found guilty, they are punished. The system operates based on the type of government, but generally involves similar steps such as arresting suspects, conducting investigations, and passing sentences on convicted offenders. The system’s goal is to reduce crime and maintain societal order.

Criminal Justice System During Mediaeval Times:

During the mediaeval period, the Mughal Emperors ruled the country, and the judicial administration was characterised by a sophisticated and centralised system that played a crucial role in maintaining law and order across the vast and diverse territories under Mughal rule. The Emperor, as the supreme authority, appointed Qazis (Judges) to administer justice at both the provincial and local levels. These Qazis were responsible for interpreting and implementing Islamic law, known as the ‘Sharia’, in civil and criminal matters, which were based on the ‘Quran’, ‘Sunna’, ‘Ijma’, and ‘Qiyas’. The Mughal judicial administration provided a methodical and hierarchical structure for the administration of justice, which helped to maintain stability and coherence throughout the empire despite sporadic incidents of corruption and abuse of authority.

Criminal Justice System In Present:

The Criminal Justice System in India is based on legal procedures established by the British during the pre-independence era. The Indian Penal Code (IPC), The Criminal Procedure Code (CrPC), The Indian Evidence Act, and the Constitution of India are the four pillars of the Indian Judicial System. The Constitution guarantees fundamental rights, the IPC lays out the process of resolving civil disputes, and the CrPC governs the resolution of criminal disputes. The Indian Evidence Act 1872 enshrines the law that applies to all disputes that require the production of any form of evidence, such as documents or statements of an individual. The system has three main components: the police, the judiciary, and the correctional system. The police are responsible for investigating and apprehending criminals, the judiciary delivers justice through trials and sentencing, and the correctional system is responsible for rehabilitating offenders and preventing them from reoffending. The criminal justice system in India is a legacy of the British system and has four subsystems: the Legislature (Parliament), Enforcement (police), Adjudication (courts), and Corrections (prisons, community facilities)

NEW CRIMINAL LAW AMENDMENT BILLS

Some key highlights of the new criminal law amendment bills are as follows:-

1. The Bharatiya Nyaya Sanhita 2023

Bharatiya Nyaya Sanhita, 2023 (BNS) makes several key departures from the Indian Penal Code 1860. Let’s discuss some of these:

• Promise to Marry- Clause 69 of the proposed Bharatiya Nyaya Sanhita (BNS) criminalises sexual intercourse based on deceitful promises to marry. The clause aims to address the issue of “Love Jihad” by punishing those who make a promise to marry a woman without any intention of fulfilling it. The punishment for such an offence can extend up to 10 years of imprisonment and a fine. The Indian judiciary has historically categorized sex involving unfulfilled marriage promises as rape under the IPC, and the proposed clause 69 extends its scope to encompass such instances of deceit-based sexual interactions. However, the clause has been criticized for undermining women’s sexual autonomy and regulating socially prohibited sex rather than punishing sexual violence

• Mob Lynching- Section 103(2) of the Bharatiya Nyaya Sanhita (BNS) introduces a new provision that addresses cases where five or more individuals commit murder based on factors such as race, caste, community, sex, place of birth, language, personal beliefs, or any other ground. Under this provision, each member of such a group will face punishment, including life imprisonment or the death penalty, and will also be liable for a fine. The BNS, which is set to replace the Indian Penal Code, aims to provide a comprehensive framework for addressing various criminal offences, including murder and hate crimes. The revised BNS Bill, passed in the Lok Sabha, has prescribed more stringent punishments for offenses such as mob lynching and hate-crime murder, aligning the sentencing with the severity of these crimes. The BNS has been the subject of various discussions and analyses, with some experts highlighting the need to consider a gendered lens when addressing provisions related to penalising murder, particularly in the context of femicide.
• Organised Crime- Under this provision, a crime committed out of hate on the basis of race, caste, community, sex, place of birth, language, personal beliefs, or any other ground by a group of five or more people will face punishment including life imprisonment or the death penalty, and will also be liable for a fine. This provision is a significant development as it brings the prosecution of organised crime under the purview of ordinary criminal law. The BNS aims to provide a comprehensive framework for addressing various criminal offences, including murder and hate crimes. The inclusion of this provision reflects a concerted effort to address and deter organised criminal activities, such as those involving kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cybercrimes, and human trafficking for prostitution
• Terrorist Act- Section 113 of the Bharatiya Nyaya Sanhita (BNS) addresses acts that threaten the unity, integrity, sovereignty, security, or economic security of India, or that intend to terrorise the people. It encompasses acts such as using bombs, dynamite, or other hazardous explosive substances, or any other means, to cause death, injury, or property damage. Under this section, if the act results in a person’s death, the accused will face punishment, including the death penalty or life imprisonment, and will also be liable for a fine. This provision is a significant addition to the BNS, aiming to combat terrorism and safeguard the security and integrity of the nation. It reflects a comprehensive approach to addressing and deterring acts that pose a threat to the nation’s stability and security.
• Hit And Run Cases- Section 106 of the Bharatiya Nyaya Sanhita (BNS) stipulates that an individual who causes the death of another person through a reckless or negligent act, not amounting to culpable homicide, shall be subject to imprisonment for a term that may extend to five years. This new provision represents an increase in the punishment for causing death by negligence, as the previous maximum penalty was two years. The amendment reflects a stricter approach to cases of negligence resulting in death. The BNS aims to provide a comprehensive framework for addressing various criminal offences, including those related to negligence and its consequences. The revised BNS Bill, which has been the subject of various discussions and analyses, seeks to align the sentencing for such offences with their severity, reflecting a concerted effort to address and deter acts of negligence that lead to loss of life.
• Snatching- Theft is considered as snatching when the offender seizes or takes away movable property from a person or their possession by sudden, quick, or forcible means. The punishment for snatching is imprisonment for up to three years and a fine. This definition of theft aligns with the broader legal understanding of the term, which encompasses various specific types of stealing, such as larceny, robbery, and burglary. The severity of the offence may lead to it being categorised as grand theft or petty theft, with corresponding legal implications based on the value and type of the stolen goods. The legal concept of theft is recognized as an offence against property in various jurisdictions, and it is often associated with the intent to deprive the rightful owner of their property.
• Medical Practitioners- Under the new criminal law, a registered medical practitioner who commits a negligent act while performing a medical procedure may face imprisonment for up to two years and a fine. This provision represents a change from the previous law and has been a topic of discussion and analysis within the medical and legal communities. The amendment aims to address acts of negligence within the medical profession and their legal implications, reflecting a broader effort to ensure accountability and patient safety. The provision has been the subject of debate, with some advocating for a more stringent approach to medical negligence, while others have emphasised the need for a balanced and fair legal framework for addressing such cases.

Deletion Made in BNS:

• Unnatural Sexual Offences- Section 377 of the Indian Penal Code, which criminalised homosexuality and other “unnatural” sexual activities, has been repealed under the Bharatiya Nyaya Sanhita (BNS). The new law reflects a significant change from the previous law, which had been in place since 1861 and was considered outdated and discriminatory. The BNS aims to provide a comprehensive framework for addressing various criminal offences, including those related to sexual orientation and gender identity. The repeal of Section 377 has been a topic of discussion and analysis within the medical, legal, and social communities, reflecting a broader effort to ensure equality and human rights for all individuals. The decision to decriminalise homosexuality has been hailed as a step towards freedom from discrimination, humiliation, and oppression, and it has found resonance in Indian society. However, there is still a long road ahead to ensure that the LGBT community can find its place in India, with some advocating for affirmative action and education to ensure that the community can live without stigma. The repeal of Section 377 represents a significant milestone in the struggle for human rights and equality in India.
• Adultery- The Bharatiya Nyaya Sanhita (BNS) no longer contains the adultery provision, which was overturned by the Supreme Court in 2018. The Supreme Court had ruled that Section 497 of the Indian Penal Code, which criminalised adultery for men but not for women, was unconstitutional. The BNS, which aims to replace the IPC, has removed the provision related to adultery, reflecting a significant legal change in the treatment of marital infidelity. This decision has been the subject of debate, with some advocating for the retention of the adultery provision to protect the sanctity of marriage, while others support its removal to ensure gender-neutral laws and individual autonomy.
• Thugs- The provision related to committing robbery or child stealing accompanied by murder has been completely removed from the Bharatiya Nyaya Sanhita (BNS). This change reflects a significant alteration in the legal treatment of such offences under the new law. The omission of this provision has been a point of discussion and critique, with some expressing concerns about the implications of removing this specific legal measure. The BNS aims to provide a comprehensive framework for addressing various criminal offences, and the removal of this provision is part of the broader effort to modernise and refine the legal approach to criminal justice in India.
• Gender Neutrality– The Bharatiya Nyaya Sanhita (BNS) has introduced several changes to make certain offences gender-neutral and to ensure gender equality in the legal framework. Specifically, the provision related to the procuration of a girl for “illicit intercourse” (Section 366A of the IPC) has been made gender-neutral. Additionally, the BNS has equalised the age limit for the kidnapping of minors, setting it at 18 years for both boys and girls. Furthermore, the offences of outraging a woman’s modesty (Section 354A of the IPC) and voyeurism (Section 354C) have been made gender-neutral, allowing for the booking of offenders of any gender under these laws. These changes reflect a broader effort to promote gender inclusivity and equality within the legal system.

The Bhartiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) seeks to replace Criminal Procedure Code, 1973 (CrPC).The CrPC provides for the procedure of arrest, prosecution or bail. The BNSS mandates forensic investigation for offences punishable for seven years of imprisonment or more. All trials, proceedings and inquiries may be held in electronic mode. Production of electronic communication devices will be permitted for research, questions, and trials; these devices may store digital evidence.A declared offender may be tried and a judgement rendered in his absence if he has fled to avoid prosecution and there is no immediate chance that he will be apprehended. Along with specimen signatures and handwriting, finger impression and voice samples, may be collected for investigations and proceedings. Samples may be taken from a person who has been arrested. BNSS made several key departures from the CrPC. let’s discuss some of these:

• Detention of undertrials- As per the CrPC, if an accused has sent half of the maximum period of imprisonment in detention, he must be released on personal bond. This does not apply to offences punishable by death. The BNSS adds that the provision will also not apply to (i) offences punishable by life imprisonment, and (ii) persons against home proceedings are pending in more than one offence.
• Medical Examination– The CrPC allowed medical examination in certain cases, including rape cases. Such examinations are done by registered medical practitioners at the request of at least sub-inspector-level police officers. The BNSS provides that any officer can request such an examination.
• Forensic Investigation– The BNSS mandates forensic investigation punishable for at least seven years in imprisonment. In such cases forensic investigators will visit crime scenes to collect forensic evidence and record the process on mobile phone or any other electronic device. If a state does not have a forensic facility, it shall utilize this facility in another state.
• Signature and Fingerprints– The Bharatiya Nyaya Sanhita (BNS) expands the powers of the magistrate in the collection of samples for investigation or judicial proceedings. While the Criminal Procedure Code (CrPC) allows the magistrate to order any person to provide specimen signature or handwriting, the BNS goes further by including the collection of finger impressions and voice samples for the same purposes. Additionally, the BNS permits the collection of these samples from individuals who have not been arrested, thereby enhancing the scope of evidence collection in the legal process.
• Timelines for Procedure- The Bharatiya Nyaya Sanhita (BNS) introduces specific timelines for various procedures to ensure the expeditious handling of legal matters. For example, it mandates that medical practitioners examining rape victims must submit their reports to the investigating officer within seven days. Additionally, it sets the following timelines: (i) delivering judgments within 30 days of the completion of arguments, which can be extended to 45 days, (ii) informing the victim about the progress of the investigation within 90 days, and (iii) framing charges by the sessions court within 60 days from the first hearing on such charges. These timelines are part of the BNS’s broader objective to streamline legal processes and ensure timely resolution of cases
• Hierarchy of Courts- The Bharatiya Nyaya Sanhita (BNS) introduces changes to the hierarchy of courts for adjudicating criminal matters in India. The BNS retains the Magistrate Court, which is responsible for the trial of most criminal cases. However, it eliminates the designation of “Metropolitan Magistrate ” by omitting the provision that empowered the state government to notify any city or town with a population of more than one million as a metropolitan area. The BNS also retains the Session Court, presided over by a session judge, and the High Court, which has inherent jurisdiction to hear and decide criminal cases and appeals. Additionally, the BNS retains the Supreme Court, which hears appeals from the High Courts and also exercises its original jurisdiction on certain matters. These changes reflect a streamlining of the categories of judges and a modernization of the legal framework under the BNS.

The Bharatiya Sakshya 2023

The aim of the Bharatiya Sakshya, 2023 was to repeal an existing Indian Evidence Act, 1872 ( Evidence Act). This note summarises the most notable change to the Evidence Act which has been proposed in the bill. The most significant changes in the bill pertaining to the consolidation of sections and removal of references from the colonial era while maintaining a construct largely similar to that of the existing Evidence Act. let’s discuss some of the changes made in The Bharatiya Sakshya 2023:

• Primary Evidence- Section 61 of the Evidence Act has undergone modifications in the Bill. The new section includes additional explanations that recognize:

For documents created using a uniform process like printing, lithography, or photography, each is primary evidence of the contents of the rest. However, if:-

1. they are copies of a common original, they are not primary evidence of the contents of the original.
2. In the case of electronic or digital records recorded or stored, each file is considered primary evidence.
3. When an electronic or digital record is produced from proper custody, such a record is primary evidence unless disputed.
4. For video recordings stored in electronic form or transmitted, each stored recording is primary evidence.
5. In situations where an electronic record is stored in multiple storage spaces in a computer resource, each automated storage, including temporary files, is considered primary evidence.

• Secondary Evidence- The Bharatiya Nyaya Sanhita (BNS) has broadened the scope of Section 63 of the Evidence Act, which pertains to ‘secondary evidence.’ The revised section now encompasses additional categories such as oral admissions, written admissions, and evidence from a person examining a document when the court cannot inspect the original. This expansion is expected to assist courts in determining the admissibility of documents. Additionally, the BNS specifies that for oral evidence to qualify as secondary evidence, it must pertain to the original document, not a copy thereof. These changes reflect a modernization of the legal framework to accommodate various forms of evidence and ensure their admissibility in legal proceedings.
• Electronic Evidence- Section 65B of the Evidence Act has been streamlined in the Bill, outlining the admissibility of electronic or digital records. It emphasises that such records will carry the same legal effect, validity, and enforceability as paper records. However, the admissibility of electronic or digital records is contingent upon meeting specific conditions.
• Public document- The Bill has consolidated Sections 74 and 75 of the Evidence Act, addressing descriptions of both public and private documents. The resulting provision maintains the same substance as the corresponding sections in the Evidence Act.
• Presumption as a document– The new provision expands upon Section 81A of the Evidence Act, focusing on presumptions related to gazettes in electronic or digital form. It also includes an additional explanation of the term ‘proper custody.’ However, the Bill excludes Section 82 of the Evidence Act, which previously addressed presumptions about documents admissible in England. Furthermore, modifications in the new Section 25 alter Section 86 of the Evidence Act, specifically removing references to the dominions of Great Britain and adopting a broader term for documents originating from any country beyond India. In addition, changes in the new section involve the alteration of Section 88 of the Evidence Act, substituting the term ‘telegraphic messages’ with ‘electronic messages.’
• Examination of Witness– The section related to witness examination closely mirrors Section 137 of the Evidence Act, albeit with a different structure. Additionally, concerning leading questions, the new section revises Section 141 of the Evidence Act, previously generic, by introducing specific circumstances as leading questions. The segment addressing refreshing of memory is a direct adoption of Section 159 of the Evidence Act, though with a structural modification.

       Moreover, the part on document production has altered Section 162 of the Evidence Act, introducing restrictions on the types of documents that can be produced. This is achieved by incorporating a provision that prohibits the production of privileged communications between ministers and the President of India.

CONCLUSION

The Bharatiya Sanhita Bills represent a pivotal moment in India’s criminal justice system, replacing outdated colonial laws. While aiming to modernise and address issues like terrorism, they bring both opportunities and concerns.

     Positively, the bill proposes increased penalties, a broader terrorism definition, and measures like speedy trials. However, fears persist about potential abuse of power and the erosion of individual rights. The broad terrorism definition and abolition of sedition, though addressing valid concern, raise worries about stifling dissent. Granting more state power in areas like investigation and detention raised concerns about overreach.

    Success depends on fair process, and safeguarding rights. Balancing modernization and safeguards will determine if these bills lead to a more just system or fuel ongoing debates about India’s legal future—whether it prioritises swiftness and harsh punishments or values individual rights and due process.

REFERENCES

1. https://www.lexology.com/library/detail.aspx?g=e57efe9a-16c3-4bdd-8135-ce16a0e483e7
2. https://indianexpress.com/article/explained/explained-law/revised-criminal-reform-bills-in-parliament-what-changed-why-9066678/
3. https://byjus.com/free-ias-prep/criminal-justice-system-in-india/
4. https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-sanhita-2023