India’s Legal Revolution: Navigating New Criminal Laws with Hope and Skepticism

Published On: 20th June, 2024

Authored By: Subhechcha Mukherjee
Shyambazar Law College

Abstract

The Indian Home Ministry has recently announced the introduction of three new criminal statutes: the Bharatiya Nyaya Sanhita of 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita of 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam of 2023 (BSA), slated to replace outdated colonial-era laws. These legislative reforms aim to modernize the legal framework, enhance efficiency, and ensure justice delivery aligned with contemporary societal needs. The BNS prioritizes offenses against women, children, and the state, introducing progressive measures such as community service as punishment. The BNSS focuses on digital integration, expediting trial processes, and safeguarding citizen rights, while the BSA introduces crucial amendments to evidence admissibility, recognizing digital records, and enhancing trial proceedings’ fairness and efficacy. Chief Justice of India DY Chandrachud’s insights underscores the critical role of infrastructure investment in realizing the reforms’ potential, emphasizing robust infrastructure and technological integration. However, concerns regarding privacy protection, police reforms, backlog reduction, and prisoner welfare highlight the need for holistic approaches to address systemic deficiencies.

Keywords: Criminal statutes, Colonial-era legislation, Code of Criminal Procedure, Judicial scrutiny, Prison reforms

Introduction

The Indian Home Ministry has recently declared the implementation of three fresh criminal statutes: Bharatiya Nagarik Suraksha Sanhita, 2023, Bharatiya Nyaya Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023, slated to take effect on July 1, 2024. These legislations revoke the outdated British-era Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act, respectively.

The primary purpose behind the implementation of any criminal legislation is to ensure that those found guilty are appropriately penalized, while simultaneously ensuring that the victims receive justice through established legal channels. It safeguards citizens from individuals who seek to cause physical harm or unlawfully take their possessions.

Criminal law fulfills various societal roles, offering numerous benefits to communities. Firstly, it maintains order by establishing a structured framework that fosters predictability, reducing disorder and uncertainty in society. Secondly, it aids in conflict resolution by providing a systematic approach to resolving disputes among citizens, promoting harmony and organization. Moreover, it plays a vital role in protecting individuals and their assets from potential harm and theft by criminals, thereby emphasizing the significance of property rights, particularly in capitalist settings. Additionally, criminal law aids in the effective functioning of society by enabling the government to execute essential duties such as taxation and environmental oversight. Lastly, it serves as a safeguard for civil liberties, ensuring the preservation of individual rights within the legal framework.

Amendments to criminal law are indispensable to ensure that the legal system remains aligned with evolving societal norms, technological progress, and new challenges. They serve to rectify deficiencies, fill gaps in legislation, and establish more robust legal structures that promote fairness and efficiency within the criminal justice system. By addressing emerging issues and adapting to changing circumstances, these amendments bolster the foundation of justice, bolster public confidence in the legal apparatus, and safeguard the rights and security of individuals in society.

In India, the current criminal statutes stem from the colonial era and were originally crafted to exert control and suppress the Indian populace, rather than to uphold justice or serve their needs. Many of these provisions have become outdated and irrelevant in today’s context. The enactment of the Bharatiya Nyaya Sanhita of 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita of 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam of 2023 (BSA) marks a significant departure from the Indian Penal Code of 1860 (IPC), the Code of Criminal Procedure of 1973 (CrPC), and the Indian Evidence Act of 1872 (IEA).

Explanation of the three new criminal laws

Bharatiya Nyaya Sanhita of 2023 (BNS)

Bharatiya Nyaya Sanhita of 2023 (BNS) replaces the Indian Penal Code of 1860 (IPC). In India, the Indian Penal Code of 1860 serves as the primary legislation concerning criminal offenses, encompassing a wide array of violations ranging from property crimes to those against the human body, public order, defamation, public health, and offenses against the state. Over the years, this foundational criminal law has undergone numerous amendments to introduce new offenses, alter punishment severity, and modify existing provisions. Additionally, various reports by the Law Commission have proposed changes to the IPC, addressing issues like food adulteration, crimes against women, and the death penalty.

In a bid to overhaul India’s criminal justice system, the Bharatiya Nyaya Sanhita Bill 2023 was tabled, offering 358 sections compared to the IPC’s 511. Presented by the Minister of Home Affairs, Amit Shah, in the Lok Sabha on August 11, 2023, the initial BNS Bill was subsequently withdrawn on December 12, 2023. It was replaced by the Bharatiya Nyaya (Second) Sanhita Bill, 2023, which successfully passed through both the Lok Sabha on December 20 and the Rajya Sabha on December 21 of the same year. Finally, the Bharatiya Nyaya (Second) Sanhita Bill, 2023, received the official assent of India’s President, Droupadi Murmu, on December 25, 2023.

The Bharatiya Nyaya Sanhita Bill of 2023 brings significant changes to the legal landscape of India, prioritizing offenses against women, the state, murder, and children. Notably, it replaces ambiguous terms with ‘child’ uniformly across the legislation for clarity.[1]

 The introduction of ‘community service’ as punishment for certain offenses marks a progressive shift. Key amendments include defining ‘child’ and ‘transgender’, incorporating electronic records into the definition of ‘document’, and revising the definition of ‘movable property’[2]. New provisions address offenses like abetment outside India, sexual intercourse through deceit, and gang rape of minors. The law also targets mob violence, negligence causing death, hit-and-run cases, and organized crime with stringent penalties.

 Noteworthy exclusions from the IPC include sedition, replaced with provisions safeguarding freedom of speech, and the introduction of snatching as a distinct offense. These changes aim to streamline legal procedures, enhance justice delivery, and uphold constitutional principles, ensuring a more equitable and transparent legal framework.[3]

In conclusion, the proposed revisions in Indian criminal legislation through the Bharatiya Nyaya Sanhita 2023 signal a significant stride towards a modernized legal system. Beyond mere amendments to existing IPC statutes, this introduction of new provisions holds promise for enhancing efficiency, equity, and transparency within the legal realm. However, the efficacy of this law hinges not only on its enforcement but also on diligent implementation and ongoing oversight. In its entirety, the BNS of 2023 presents a holistic legal framework aligned with the evolving demands of society and the pursuit of justice.

Bharatiya Nagarik Suraksha Sanhita of 2023 (BNSS)

Bharatiya Nagarik Suraksha Sanhita of 2023 (BNSS) replaces The Code of Criminal Procedure (Cr. P.C.),1973. In India’s criminal justice system, the Cr.P.C. 1973 serves as a structured framework ensuring fair trials and expeditious investigation and trial processes. Despite amendments over time to adapt to evolving needs, certain issues persist, including trial delays, low conviction rates, preliminary inquiries, backlogs, and limited technological integration. Acknowledging these challenges, the Minister of Home Affairs introduced the Bharatiya Nagarika Suraksha Sanhita Bill, 2023, in the Lok Sabha on August 11, 2023. This bill was subsequently replaced by the Bharatiya Nagarika Suraksha (Second) Sanhita Bill, 2023, introduced on December 12, 2023.[4]

The Bharatiya Nagarika Suraksha Sanhita (BNSS) of 2023 introduces significant alterations to India’s criminal justice framework. Comprising 533 sections, it prioritizes digital integration, emphasizing the use of forensic sciences and technology in investigations. Notable changes include the provision for FIR registration via electronic means and the conduct of legal proceedings electronically. Additionally, the law allows for the personal appearance of the accused through audio-video electronic means, as outlined in Section 355. Key amendments expand Section 2 with new definitions, validate mandatory zero FIR registration across all areas under Section 173, and mandate forensic investigation for offenses carrying at least 7 years of imprisonment, as per Section 176(3).[5] The BNSS sets specific timelines for various legal procedures to curb delays, empowers magistrates to order voice samples and finger impressions under Section 349, and permits inquiry, trial, or judgment in absentia of proclaimed offenders under Section 356.[6] Furthermore, it grants any police officer the authority to request a medical examination of the accused and broadens police powers in property seizure to include immovable properties. These alterations reflect a comprehensive effort to modernize and streamline the criminal justice process in India.

In conclusion, the Bharatiya Nagarika Suraksha Sanhita, 2023 endeavours to modernize India’s criminal justice system and cater to the requirements of a changing society. Its focus extends beyond mere dispensation of justice to safeguarding the rights of Indian citizens. The implementation of this legislation is poised to expedite the delivery of justice, ensuring timeliness in legal proceedings.

Bharatiya Sakshya Adhiniyam of 2023 (BSA)

Bharatiya Sakshya Adhiniyam of 2023 (BSA) replaces the Indian Evidence Act of 1872.

The Indian Evidence Act of 1872 holds significant sway over the admissibility of evidence in courtrooms, shaping the course of justice. In response to evolving societal needs, amendments were made in 2000 and 2013, with the Law Commission offering various recommendations, including those concerning police confessions, custodial violence, government privilege in evidence, and cross-examination. In a bid to enhance the justice delivery system, the Minister of Home Affairs introduced the Bharatiya Sakshya Bill, 2023, in the Lok Sabha on August 11, 2023. Subsequently, the bill was retracted on December 12, 2023, paving the way for the Bharatiya Sakshya (Second) Bill, 2023, presented in the Lok Sabha on the same day. The second bill secured passage in the Lok Sabha on December 20, 2023, followed by approval in the Rajya Sabha on December 21, 2023. Finally, on December 25, 2023, the bill received presidential assent, transforming into the Bharatiya Sakshya Adhiniyam, 2023, or Bharatiya Sakshya Act, 2023.[7]

The Bharatiya Sakshya Adhiniyam, 2023, comprising 170 sections, brings forth pivotal alterations to the Indian Evidence Act, 1872 (IEA), with 23 sections modified, 5 repealed, and 1 new section added.[8] A primary objective behind its enactment is to adapt to technological advancements and evolving societal norms. Retaining key provisions from the IEA concerning the burden of proof, confessions, and relevancy of facts, the BSA, 2023, introduces significant changes. Notably, it expands the definition of documents to encompass electronic and digital records, facilitates oral evidence electronically, and revises criteria for confessional admissions. Additionally, it recognizes digital and electronic records as primary evidence, broadens the scope of secondary evidence, and ensures equal legal standing for digital records. These amendments aim to establish comprehensive rules and principles for evidence, enhancing the fairness and efficacy of trial proceedings.

In conclusion, the Indian Evidence Act is instrumental in ascertaining truth within legal proceedings, constituting a vital aspect of the judicial system. While amendments have been made over recent years to accommodate evolving societal needs, the Act has struggled to keep pace with technological advancements. Consequently, the Bharatiya Sakshya Adhiniyam, 2023, aims to reconcile with technological innovations and streamline the prosecution process for greater efficiency.

Table showing new sections of the criminal acts

BHARATIYA NAGARIK SURAKSHA SANHITA,2023

SECTIONS

HEADINGS

2(1)(a)

“audio-video electronic”

2(1)(b)

“bail”

2(1)(d)

“bail bond”

2(1)(e)

“bond”

2(1)(i)

“electronic communication”

35(7)

When police may arrest without a warrant

86

Identification and attachment of property of the proclaimed person

105

Recording of search and seizure through audio-video electronic means

107

Attachment, forfeiture, or restoration of property

172

Persons bound to conform to lawful directions of police

336

Evidence of public servants, experts, and police officers in certain cases

356

Inquiry, trial, or judgment in absentia of proclaimed offender

398

Witness protection scheme

472

Mercy Petition in Death Sentence Cases

530

Trial and proceedings to be held in electronic mode

 

BHARATIYA NYAYA SANHITA,2023

SECTION

HEADING

2(3)

“Child”

48

Abetment outside India for offence in India

69

Sexual Intercourse by employing deceitful means, etc.

95

Hiring, employing, or engaging a child to commit an offence

103(2)

Punishment for murder

106(2)

Causing death by negligence

111

Organized crime

112

Petty organised crime

113

Terrorist act

117(3)/(40)

Voluntarily causing grievous hurt

152

Acts endangering the sovereignty, unity, and integrity of India

195(2)

Assaulting or obstructing public servants when suppressing riots, etc

197(1)(d)

Imputations, assertions prejudicial to national integration

226

Attempt to commit suicide to compel or restrain the exercise of lawful power

304

Snatching

324(3)

Mischief

341(3)/(4)

Making or possessing counterfeit seal, etc, with intent to commit forgery punishable under section 338

358

Repeal and savings

 

 

BHARATIYA SAKSHYA ADHINIYAM, 2023

SECTION

HEADING

2(2)

Words and expressions

61

Electronic or digital record

Diverse Perspectives

In remarks delivered at a conference, Chief Justice of India DY Chandrachud emphasized the critical role of adequate investment in infrastructure for India’s criminal justice system to realize the positive changes introduced by new criminal laws. Chandrachud stressed that while these laws are designed to align with contemporary needs, the effectiveness of their implementation hinges on urgent investments in infrastructure development and capacity building for forensic experts and investigating officers. He underscored the necessity for a robust infrastructure to fully harness the benefits of the new laws, calling for investments in training for forensic experts, investigators, and the court system.[9]

Chandrachud further highlighted the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates the completion of criminal trials within three years and the delivery of judgments within 45 days.[10] However, he cautioned that without adequate resources for courts and prosecution to leverage technology and ensure efficient trials, the guarantees of BNSS may remain unrealized.

Addressing concerns about privacy, Chandrachud pointed out the importance of safeguarding the rights of both the accused and the victim. He stressed the need for judicial scrutiny to protect civil liberties during search and seizure operations, as mandated by BNSS. Chandrachud also noted the challenges posed by digital offenses, advocating for enhanced capacity and infrastructure for police forces to address cybercrime effectively.

Dr. Deepak Sharma and Mr. Vidit, in an article on Live Law, underscore significant structural challenges persisting in India’s criminal justice system despite recent legislative updates and technological advancements. They assert that while legal reforms are vital for societal progress, addressing underlying issues is essential for meaningful change. The authors acknowledge the political determination behind legislative updates but caution against overlooking the profound implications and objectives of these changes.[11]

The article examines challenges faced by key components of the criminal justice system, emphasizing the need for police reforms to enhance efficiency and safeguard fundamental rights.[12] It stresses the importance of an independent prosecution wing with adequate resources to build robust cases. Regarding the judiciary, the authors highlight persistent backlog issues due to inadequate resources and excessive workloads, emphasizing the importance of transparency in judge selection to bolster public trust.

In the prison system, concerns about overcrowding, underutilization of provisions for undertrial prisoners, and declining investment in prisoner welfare initiatives are raised. The authors advocate for modernizing correctional facilities and implementing existing provisions effectively to uphold inmate rights.

In conclusion, the authors urge state governments to prioritize reforms and investments in law enforcement, judiciary, and correctional facilities to ensure an efficient, fair, and responsive criminal justice system. They stress the fundamental obligation of states to address systemic deficiencies and uphold principles of justice and accountability.

Also, in an article on Live Law[13], authored by a Former Judge of the High Court of Kerala, strong opposition is expressed against the proposed repeal of major criminal laws like the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure. The author argues that replacing these laws with new statutes could lead to confusion, delays in justice delivery, and challenges in legal interpretation. Instead, the author advocates for constructive amendments to existing laws while retaining their familiar sections, urging policymakers to reconsider their approach.

Considering these viewpoints, it becomes clear that although new laws signify progress in tackling modern challenges, their success depends on implementing supportive actions such as improving infrastructure, building capacity, and enacting systemic changes. Neglecting these fundamental aspects could mean that the transformative effects of the laws go unrealized, and the aspirations for a more effective, just, and responsive criminal justice system may not be achieved.

Conclusion

India’s recent criminal legislative reforms have elicited diverse reactions, reflecting a spectrum of perspectives from hopeful anticipation to cautious skepticism. While the new laws signify a departure from colonial-era statutes and promise modernization, concerns linger regarding their implementation and consequences. Scholars and former judges have urged caution, emphasizing the need for systemic reforms alongside legislative changes. Achieving a fair and efficient legal framework in India requires a balanced approach that integrates legislative updates with comprehensive improvements to address systemic deficiencies.

Reference(s):

[1] (The Bharatiya Nyaya Sanhita, 2023 no. 45 of …) https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf

[2] ibid

[3] Law F, ‘Bharatiya Nyaya Sanhita, 2023: Key Changes’ (Free Law: Get Free Headnotes & Judgments) https://www.freelaw.in/legalarticles/Bharatiya-Nyaya-Sanhita-2023#:~:text=The%20new%20BNS%20law%20introduced,compel%20or%20restrain%20exercise%20of

[4] Law F, ‘Bharatiya Nagarika Suraksha Sanhita (BNSS), 2023’ (Free Law: Get Free Headnotes & Judgments) https://www.freelaw.in/legalarticles/Bharatiya-Nagarika-Suraksha-Sanhita-2023

[5] (Bharatiya-Nagarik-Suraksha-Sanhita-513878.PDF) https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-513878.pdf

[6] Ibid

[7] ——, ‘The Law Came into Force, at a Time When India Was a Part of the British Empire, on September 01, 1872.’ (Free Law: Get Free Headnotes & Judgments) https://www.freelaw.in/legalarticles/Bharatiya-Sakshya-Adhiniyam-2023#:~:text=The%20Bharatiya%20Sakshya%20Adhiniyam%2C%202023%2C%20recognized%20digital%20and%20electronic%20records,the%20scope%20of%20secondary%20evidence.

[8] ‘The Bharatiya Sakshya Bill, 2023’ (PRS Legislative Research, 30 April 2024) https://prsindia.org/billtrack/the-bharatiya-sakshya-bill-2023

[9] Khanna G, ‘New Criminal Laws Would Produce Positive Impact Only If Infrastructure Development & Capacity Building Are Done : Cji Dy Chandrachud’ (Live Law, 20 April 2024) https://www.livelaw.in/top-stories/new-criminal-laws-would-produce-positive-impact-only-if-infrastructure-development-capacity-building-are-done-cji-dy-chandrachud-255623#:~:text=payment%20options%20available-,Chief%20Justice%20of%20India%20DY%20Chandrachud%2C%20while%20speaking%20at%20a,%22as%20soon%20as%20possible.%22

[10] Ibid

[11] Agarwal DrDS &Vidit, ‘Why Recent Criminal Law Reforms Might Not Fast-Track Justice in India’ (Live Law, 17 January 2024) https://www.livelaw.in/articles/why-recent-criminal-law-reforms-might-not-fast-track-justice-in-india-246927

[12] Ibid

[13] Ramkumar JV, ‘Is the Legislative Measure of Repeal and Substitution of the Three Existing Major Penal Statutes, an Inevitable Desideratum?’ (Live Law, 11 March 2024) https://www.livelaw.in/top-stories/new-criminal-laws-justice-ramkumar-critical-analysis-251792

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