Exploring India’s Latest Evolutions in Criminal Legislation: A Thorough Examination

In the wake of India’s emancipation from foreign dominion after seven decades, a critical inquiry arises: what truly embodies the essence of liberty? While nations like China have also achieved autonomy from external rule, and Afghanistan has been free from foreign interference for two years, is this the sole facet of independence? However, this aspect merely reflects one dimension of a nation’s freedom from external influence. Attaining sovereignty from foreign rule is just one component; equally pivotal is safeguarding the liberties and rights of individuals within a liberated country. India’s positioning at 112 out of 165 on the Human Freedom Index 2022 primarily stems from the perception that it falls short in this second aspect. To address this concern, the government has introduced three new legislative measures in the Parliament to reinforce the legal framework. The Bharatiya Nyaya Sanhita bill has superseded the erstwhile Indian Penal Code of 1860, while the Bharatiya Nagarik Suraksha bill has replaced the Code of Criminal Procedure of 1973. In addition, the Indian Evidence Act of 1872 has been replaced with the Bharatiya Sakshya Bill. These proposed bills encompass more than 313 amendments to the existing criminal laws, all to expedite the delivery of justice to a timeframe of three years. The government asserts that these laws are enacted to maintain order and control within India.

Chronology of the three new criminal law bills’ enactment:

The journey towards enacting the three new criminal law bills commenced in March 2020, with the central government constituting a panel tasked with proposing reforms to the existing criminal laws.

By February 2022, the government actively solicited public input and feedback, inviting suggestions from various stakeholders to inform the reform process.

These consultations culminated in a robust collection of perspectives and recommendations, laying the groundwork for subsequent legislative action.

In August 2023, the Union Home Minister, Shri Amit Shah, introduced the three new criminal law bills triggering a pivotal moment in Parliament’s legislative agenda. The road to reform wasn’t smooth, however. On December 12, 2023, the Union government withdrew the initial versions of the bills introduced in August. Demonstrating responsiveness, the bills were reintroduced, incorporating insights from the review process to address emerging needs and anxieties.

The three criminal law bills were passed by the Lok Sabha on December 20, 2023, and received the Rajya Sabha’s approval the very next day on December 21, 2023, amidst parliamentary proceedings marked by the suspension of more than 140 members of the opposition parties from both houses of Parliament. After completion of the legislative process, the President signed the bills into law on December 25, 2023.

In a press release issued on February 24, 2023, the Indian government announced that the three new criminal law acts would be enforced starting July 1, 2024. This achievement capped a significant legislative journey that aimed to reform India’s criminal justice system and align it with the evolving needs and values of the nation.[1]

The rationale for amending the archaic criminal laws:

While the criminal law bills were being passed in the Lok Sabha on December 20, Amit Shah underscored the imperative to revise the prevailing criminal acts, accentuating that the new legislation would primarily draw from Indian viewpoints rather than retaining British influences. He highlighted that this transition would free individuals from the colonial mentality and its corresponding symbols. Shah elaborated that the initial purpose behind labeling the Indian Penal Code (IPC) was to sanction Indians for crimes, rather than British individuals. Therefore, the proposed reforms aim to align the legal framework more closely with indigenous values and principles, thereby fostering a sense of empowerment and independence among the populace.[2]

The primary impetus behind the overhaul of the old laws stems from their antiquated origins dating back to the 1860s. In today’s world, numerous advancements and developments have emerged, leading to significant changes in various aspects of life. This encompasses the development of criminal activities, which have adopted new forms and methodologies that were unforeseen or unaddressed by the originators of previous laws. In recent years, India has also recognized the third gender, which necessitated recognition by the new acts. The word “crown” is mentioned in these acts more than 300 times, despite the fact that we no longer live under colonial rule.

THE BHARATIYA NYAYA SANHITA, 2023:

The Indian Penal Code comprised a total of 511 sections, whereas the new Bharatiya Nyaya Sanhita (BNS) Act includes only 358 sections. The updated law imposes more severe punishments for various offenses and incorporates clauses specifically targeting terrorism. Below, several significant changes are highlighted:

• Section 2 of the Bharatiya Nyaya Sanhita (BNS), 2023: The act now includes definitions for crucial terms such as ‘child’ and ‘transgender’, a decision made by the government following a landmark ruling by the Supreme Court in Navtej Singh Johar v Union of India.[3] By integrating ‘transgender’ within the definition of ‘gender’ under section 2(10) of the new legislation, the aim is to grant transgender individuals various rights and establish a legal framework that is gender-neutral. This action represents a significant stride toward inclusivity and equality in legal matters, aligning with the principles of justice and fairness championed by the judiciary. Furthermore, the definition of ‘document’ has been broadened to include ‘Electronic and digital records’, reflecting their growing importance in contemporary society. Additionally, the definition of ‘movable property’ has been revised. The revision illustrates an expansion of coverage to include diverse categories of movable assets. These modifications exemplify the legislative endeavor to adjust to current realities and guarantee relevance in meeting evolving legal and societal demands.
• Section 4: various penalties for offenders are outlined, with a notable addition being “community service,” a novel form of punishment in India. The impetus behind this endeavor stems from the imperative to mitigate the pressure on the prison system, as underscored by a report from 2021 revealing significant overcrowding, with facilities accommodating 554,000 inmates despite being designed for 425,000. The implementation of community service endeavors to tackle this challenge by offering an alternative to incarceration, especially for minor infractions. Such an approach not only alleviates the strain on correctional facilities but also ensures that individuals who are unable to afford fines are not disproportionately subjected to extended periods of imprisonment.
• Section 48: introduces a provision titled ‘Abetment outside India for offense in India’. This suggests that individuals planning to engage in illegal activities within India from abroad can be subject to prosecution under this law. Such a provision is likely influenced by recent occurrences, such as the Khalistan movement coordinated by pro-Khalistani factions in nations such as the UK, Australia, and Canada last year.[4]
• Section 63 “rape”: most of the provisions are similar to the old act, but one change is made in the exception part of this section. Section 63, exception 2 states that any sexual intercourse between husband and wife (wife being above 18 years of age) will not constitute rape. With this, the age of wife consent was increased to 18 because before, a wife aged between 16 to 18 was not considered a victim of rape.
• Section 67: introduced a new offence which states that sexual intercourse by a husband with his wife (without consent) during a decree of separation will be punished with imprisonment for 2 years, which may extend to 7 years, and a fine.
• Section 69: introduces a major offense, labelled as ‘sexual intercourse through deceptive means, etc.’ Any individual who engages in sexual activity with another individual by giving false hope, such as promises of marriage, employment, or any other reason, will be liable for 10 years of imprisonment and a fine.
• Section 70(2): increased the punishment for offenders by eliminating age discrimination of the girl in a gang rape case. Now, if any girl below 18 years of age is a victim of a gang rape, the offenders will be given the death penalty or life imprisonment.
• Section 103, “punishment of murder”: mob lynching is a new category under sub-section 2, which includes grounds like caste, community, sex, language, and many more. “Acting in concert” is a new term used in BNS, which will be interpreted by the courts in the upcoming years.
• Section 106: Doctors receive reduced punishment for causing death due to negligence. Sub-section 2 implements severe penalties for hit-and-run incidents.
• Section 111: the term “organized crime” is introduced and well-defined in this act. A group of offenses like contract killing, robbery, cybercrimes, and many more offenses committed by a group of people acting in concert for any financial or indirect benefit shall constitute organized crime. The maximum punishment that can be imposed on someone is the death penalty.
• Section 113: offers an expanded interpretation of the “terrorist act” offense, contrasting with the preliminary iteration of the bill introduced in August. The inclusion of terrorism within the purview of this law represents a significant departure, particularly given that the Indian Penal Code (IPC) does not explicitly address terrorism. Under this legislation, acts aimed at undermining the “economic security of India,” such as the production, smuggling, or dissemination of counterfeit currency or materials, are now classified as “terrorist acts.” Additionally, any activities that pose a risk to the nation’s unity, integrity, sovereignty, or security also fall under this designation. This broadening of the definition extends the scope of terrorism beyond conventional violent acts to include those targeting the economic stability and social coherence of the country.[5]
• Section 152: While sedition is not entirely eliminated from the BNS, it is presented in a more comprehensive form within this legislation, albeit without explicit labeling as sedition. Crimes falling under this classification now entail penalties ranging from a minimum of seven years to life imprisonment.

• Section 304: The Bharatiya Nyaya Sanhita introduces a novel offense named “snatching,” similar to theft, which entails the swift, sudden, or forcible seizure of movable property without consent. This inclusion seeks to more efficiently address and penalize such thefts within the legal system. Offenders will face imprisonment for a maximum of 3 years as punishment.

THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023:

The implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023 supersedes the Code of Criminal Procedure, resulting in a notable expansion of statutory provisions from 484 to 533 sections. Its main aim is to accelerate the dispensation of justice to the citizens of India. Below are outlined some of the key alterations:

• Detention regulations concerning undertrial prisoners: It places restrictions on who can be released on personal bail, especially those who are charged with serious crimes like life in prison or have many counts against them. This adaptation seeks to enhance examination and enforce stricter compliance with procedural prerequisites in situations where the accused are perceived to present a substantial threat to public safety or where the seriousness of the alleged offenses necessitates increased caution in granting pre-trial release.
• Implementation of strict timelines: Medical assessments for rape victims must be furnished within a span of 7 days, court judgments must be rendered within 30 days (with the potential for extension to 45 days), updates on the advancement of victims’ cases must be furnished within 90 days, while charges must be framed within 60 days of the trial’s initiation. These prescribed time limits highlight the legislation’s dedication to hastening legal procedures, fostering judicial efficacy, and guaranteeing prompt case resolutions, thereby reducing delays and backlogs in the legal system.
• Modifications in FIR: The BNSS introduces the concept of “Zero FIR,” under section 173 of the BNSS 2023, enabling complainants to file a First Information Report (FIR) for a cognizable offense at any police station, irrespective of the location of the offense, is now permissible. Subsequently, the concerned police station can transfer the FIR to the appropriate jurisdiction following its registration. This provision applies to all cognizable cases. Notably, the term “Zero FIR” was absent in the Code of Criminal Procedure (CrPC) until a recent Supreme Court ruling introduced it. Additionally, an Electronic FIR (E-FIR) can be lodged electronically. The FIR must bear the signature of the complainant and will be officially recorded within three days.
• Preliminary enquiry: If an offense carries a sentence of above three years and below 7 years, then a preliminary inquiry should be conducted before the registration of an FIR.
• Rights of arrested person: The scope of rights for an arrested person is increased under section 36 of BNSS. Now, the arrestee can even inform their legal counsel about their arrest, whereas before, only friends and relatives were covered.
• Electronic communication: The integration of electronic communication and audio-video electronic techniques into the various procedures delineated in the legislation is a notable characteristic of the BNSS. To facilitate this, the BNSS introduces new definitions elucidating terms like “audio-video electronic” and “electronic communication” under section 2(1)(a) and section 2(1)(i), respectively. Under section 176 of BNSS, witness and accused summonses can now be served through electronic means, with the State Government tasked with formulating rules governing the manner and format of such communication. Furthermore, pursuant to section 176 of BNSS, statements may be captured using audio-video techniques during investigations, while section 231 of BNSS permits the electronic transmission of documents like police reports. Moreover, search and seizure operations are subject to audio-video recording, with the recordings promptly submitted to the Magistrate. Additionally, Section 530 of the BNSS permits the electronic conduct of trials, inquiries, and proceedings, including appellate procedures.
• Metropolitan magistrates: The Indian court hierarchy is changed in the new act. Under the Cr. P.C, a metropolitan magistrate would be instituted if the city had a population of more than a million people. However, in the BNSS, the entire concept of a metropolitan magistrate is deleted from the act.
• Proceeds of crime: Magistrates may attach properties found to be proceeds of crime under Section 107 of the BNSS. In certain situations, they may do so immediately following a hearing with the parties involved, or they may do so temporarily and without prior notice. Section 86 permits the issuing of notices and their subsequent distribution to the parties involved. Courts are empowered by this section to seek assistance from foreign authorities for the attachment or forfeiture of properties owned by proclaimed offenders, with the objective of ensuring their presence or seizing assets held abroad by fugitives to avoid legal proceedings.
• Section 193 of BNSS: The victim should be informed by the police officer about the progress of the investigation within 90 days.

BHARATIYA SAKSHYA ADHINIYAM, 2023

The enactment of the Bharatiya Sakshya Adhiniyam replaced the Indian Evidence Act. The IEA had a total of 167 sections, but there was a slight increase to 170 sections in the BSA Act. A few changes were made in the BSA, a new section was added, 20 plus laws were modified, and 5 other sections were repealed. Below are outlined some of the notable alterations:

• Section 2: of the BSA, 2023, expanded the definition of “document” to include electronic and digital records, encompassing emails, server logs, computer or smartphone documents, messages, websites, locational evidence, and voice mail messages. Moreover, under the BSA of 2023, electronic oral evidence is allowed, while the preceding Indian Evidence Act described oral evidence as statements presented by witnesses in court regarding matters under investigation.[6]
• Section 23: The Evidence Act’s Sections 25 and 26, which deal with confessions made to police officers, have been combined into Section 23 of the Bill along with an additional clause. This clause allows for the utilization of information acquired during police custody for investigative purposes or as corroborative evidence, irrespective of its classification as a formal confession. Such an amendment expands the range of admissible evidence and strengthens the investigative capacities of law enforcement bodies.
• Section 39 and Section 41 of BSA: Section 39 of the BSA, mirroring Section 45 of the Evidence Act, has been amended to underscore the significance of expert opinions, notably those provided by examiners of electronic evidence pursuant to Section 79A of the IT Act, in relation to digitally stored information. Moreover, Section 41 amalgamates regulations pertaining to opinions regarding handwriting and digital signatures, previously outlined in Sections 47 and 47A of the Evidence Act, without alterations. As a result, courts now have the authority to assess opinions provided by experts proficient in both handwriting examination and digital signature validation.
• Section 57: It introduces new explanations regarding primary evidence. It recognizes documents generated through consistent methods such as printing, lithography, or photography as primary evidence of their content. Similarly, electronic or digital records, along with electronically stored or transmitted video recordings, are also regarded as primary evidence. Additionally, electronic records stored across different computer storage locations each hold the status of primary evidence.
• Section 58: This section pertains to Section 63 of the Indian Evidence Act. It expands the scope of secondary evidence by incorporating additional categories such as oral admissions, written admissions, and testimony provided by individuals examining documents, all classified as secondary evidence.
• Section 61:According to this clause, digital and electronic records are regarded by the law as being equally as significant as paper records.

CONCLUSION:

The introduction of new criminal law statutes has resulted in significant modifications to India’s legal system, representing important turning points in the development of the nation’s jurisprudential framework. In response to evolving social dynamics and technological breakthroughs, the government has initiated extensive changes aimed at fortifying and updating the criminal justice system. These acts broaden the legal vocabulary by introducing new terms such as “community service,” “organized crime,” “snatching,” and “acting in concert.”

The BSA widens the scope of evidence by incorporating electronic communication and digital records. Furthermore, the BNSS expedites the legal process by implementing simplified procedures, facilitating easier FIR filing and enabling electronic summons, thereby ensuring efficiency and accessibility for all.

Reference(s):

[1] New Criminal Laws Replacing IPC, CrPC & Evidence Act To Come Into Force From July 1, 2024,livelaw.in(24 Feb 2024 2:43 PM), https://www.livelaw.in/top-stories/new-criminal-laws-replacing-ipc-crpc-evidence-act-to-come-into-force-from-july-1-2024-250395?infinitescroll=1

[2] Abhinav Singh, Lower house of Indian parliament passes 3 criminal law bills, replacing IPC, CrPC, Evidence Act,wionews.com, (Dec 20, 2023, 07:52 PM), https://www.wionews.com/india-news/lok-sabha-passes-three-criminal-laws-replacing-ipc-crpc-and-evidence-act-

[3] Navtej Singh Johar v Union of India, (2017) 9 SCC 1

[4] Sayantani Biswas, Canada, UK, Australia, US witness surge in pro-Khalistan demonstrations. Will this strain India’s foreign relations?, livemint.com,( 09 Jul 2023, 04:23 PM), https://www.livemint.com/news/world/canada-uk-australia-us-witness-surge-in-pro-khalistan-demonstrations-will-this-strain-indias-foreign-relations-11688897594201.html

[5] Aiman J. Chishti, Major Changes Introduced by Bharatiya Nyaya Sanhita,livelaw.in(30 Dec 2023 8:05 PM), https://www.livelaw.in/top-stories/major-changes-introduced-by-bharatiya-nyaya-second-sanhita-

[6] Bharatiya Sakshya Adhiniyam, 2023,freelaw.in,( 09 February, 2024 ), https://www.freelaw.in/legalarticles/Bharatiya-Sakshya-Adhiniyam-2023