Reforms in the Criminal Law Framework of India
EN Explains
Throughout history, India has emphasised restorative justice, a philosophy embedded in its ancient texts. Upholding this tradition, the Indian government has embarked on a transformative journey by implementing three new criminal laws that came into effect from July 1, 2024. These new codes mark a significant departure from the legal framework inherited from the colonial era, previously governed by the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act (IEA). Christened the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA), these codes have a visionary approach integrating upcoming technological advancements for the next half-century. Recognising the short-comings of the past, the government has meticulously removed outdated sections and replaced them with contemporary provisions. The new offences attract enhanced penalties for terrorism, mob lynching, organised crime, and offences against women and children.
The core objective is to prioritise rehabilitation over retribution, expedite trials, safeguard victim rights, and ensure a more equitable and efficient legal system. To achieve this ambitious goal, a comprehensive training programme has equipped over 12,000 law enforcement trainers who will in turn guide approximately 225,000 police officers in navigating the intricacies of the new legal landscape.
Key Features
The new laws incorporate several key features designed to modernise and enhance the effectiveness of India's criminal justice system.
· The new laws define terrorist acts as acts done with the intent or potential to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to terrorise people.
· The new laws provide for the death penalty or life imprisonment for mob lynching committed by five or more people based on race, caste, community, gender, place of birth, language, or personal belief.
· Trials can be now conducted in the absence of fugitive criminals.
· Summary trials will be hence conducted for cases involving sentences of up to three years, aiming to resolve more than 40% of cases in sessions courts.
· A first-time offender who has completed one-third of their imprisonment can be released on bail by the court.
· Provision of community service has been made as a penalty for minor offences under these new laws.
· Forensic investigation is mandatory for offences punishable with at least seven years of imprisonment.
· Videography during searches and seizures has been made mandatory. No charge sheet will be valid without such recording.
The Bharatiya Nyaya Sanhita (BNS), 2023
The Bharatiya Nyaya Sanhita, 2023 has replaced the Indian Penal Code 1860, retaining all provisions of the IPC with 358 sections included. However, it includes new offences while eliminating court-obstructed offences and increasing penalties for other offences. A total of 20 new crimes have been added in the Act, and the imprisonment sentence has been increased for 33 of them. The BNS includes the following new offences, deletions, and other amendments:
· Crimes and murders related to mob lynching and hate crimes have been included in the code to prevent them.
· The punishment for death due to negligence has been increased from two years to five years. In the case of a registered medical practitioner, imprisonment may be extended up to 2 years along with a fine, if they cause death by accident during a medical procedure.
· Adultery has been removed as an offence in line with the Supreme Court's decision.
· False misleading promises of marriage and publishing false and misleading information have been declared as an offence.
· Any attempt to obstruct or compel a public servant from performing their duties is considered an offence with a provision for punishment.
· The section on fraud (Section 310) in the IPC has been completely removed.
· Some laws related to children have been amended to bring about gender neutrality.
· Sedition has been redefined with a broader definition and presented under the new name “treason”. There is also a provision for graded fines for damaging public property.
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
The Bharatiya Nagarik Suraksha Sanhita, (BNSS) 2023, aims to overhaul the Criminal Procedure Code (CrPC) of 1973, introducing significant changes to India's criminal justice system. Here are some highlights of the proposed bill:
The BNSS mandates forensic investigation for offences punishable with seven or more years of imprisonment. Forensic experts are now required to visit crime scenes to collect and document forensic evidence. Trials, inquiries, and proceedings may be conducted electronically, and electronic communication devices likely to contain digital evidence will be admissible during investigations, inquiries, or trials.
A significant change is that trials can be conducted and judgments pronounced in the absence of a proclaimed offender who has absconded and shows no immediate prospect of being arrested. Additionally, the BNSS allows for the collection of specimen signatures, handwriting, finger impressions, and voice samples for investigations or proceedings, even from individuals not under arrest.
Despite these advancements, the BNSS raises several key issues:
· Extended Police Custody: The BNSS allows up to 15 days of police custody, authorised in parts during the initial 40 or 60 days of the 60 or 90 days judicial custody period. This may result in the denial of bail if the police have not exhausted the 15 days.
· Property Attachment: The powers to attach property from crime proceeds lack the safeguards found in the Prevention of Money Laundering Act.
· Bail Provisions: Unlike the CrPC, which allows bail for an accused detained for half the maximum imprisonment time, the BNSS denies this for individuals facing multiple charges, potentially limiting bail in many cases.
· Use of Handcuffs: Permitting the use of handcuffs in a range of cases, including economic offences.
· Evidence by Successors: The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors, violating standard rules of evidence that require the document's author to be cross-examined.
· Missed Reforms: Recommendations from high-level committees on sentencing guidelines and codifying the rights of the accused have not been incorporated into the BNSS.
The BNSS represents a significant shift in India's criminal justice system, with both progressive elements and contentious issues that require careful consideration.
The Bharatiya Sakshya Adhiniyam (BSA), 2023
The Bharatiya Sakshya Adhiniyam (BSA), 2023 aims to replace the Indian Evidence Act of 1872 (IEA) while retaining most of its provisions on confessions, relevancy of facts, and burden of proof. Here are some highlights of the proposed bill:
The IEA categorises evidence into two types: documentary and oral. Documentary evidence is further divided into primary (original documents) and secondary (evidence proving the contents of the original). The BSA retains this distinction and classifies electronic records as documents. Notably, it reclassifies electronic records from secondary to primary evidence and expands the definition to include information stored in semiconductor memory or any communication devices like smartphones and laptops.
Additionally, the BSA broadens the scope of secondary evidence to encompass oral and written admissions, as well as the testimony of individuals skilled in document examination.
Despite these updates, the BSA raises several key issues:
· Tampering of Electronic Records: The Supreme Court has recognised the susceptibility of electronic records to tampering. While the BSA allows for the admissibility of such records, it lacks safeguards to prevent tampering and contamination during the investigation process.
· Certification Contradictions: Currently, electronic records must be authenticated by a certificate to be admissible. The BSA retains these provisions but also classifies electronic evidence as documents, potentially by passing the need for certification, and creating a contradiction.
· Coerced Discoveries in Custody: The IEA permits the admissibility of facts discovered from information received from an accused in police custody, a provision retained in the BSA. Courts and committees have noted that such discoveries can result from coercion, lacking adequate safeguards.
· Custody Distinction: The Bharatiya Sakshya Adhiniyam or the Indian Evidence Act allows information obtained while the accused is in police custody to be admissible, but not if the accused is outside custody. The Law Commission has recommended removing this distinction.
· Unaddressed Recommendations: Several recommendations from the Law Commission have not been incorporated into the Bharatiya Sakshya (Second) Bill 2023, including the presumption that injuries sustained by an accused in police custody were caused by the police officer.
The BSA, 2023 represents a significant step towards modernising India's evidence law, particularly by recognising the importance of electronic records. However, it also highlights the need for additional safeguards and revisions to address concerns of tampering, coercion, and contradictory provisions.
India's justice system is getting a major overhaul with the introduction of these three new criminal laws. These laws prioritise rehabilitation over pure punishment and leverage technology to streamline the legal process. Faster trials, stronger protections for victims, and a fairer system are all on the horizon. To ensure a smooth transition, the government is providing extensive training for law enforcement and judicial officials. While these reforms are undoubtedly progressive and address current issues, they require close monitoring to iron out any wrinkles. The ultimate goal is to create a modern legal system that adapts to the changing needs of Indian society, striking a healthy balance between the old and the new.
Initiatives for Smooth Implementation
· States have been given the freedom to amend certain provisions of the Indian Civil Protection Code.
· The BNS may also be amended soon to incorporate a section on sexual crimes against men and transgender persons.
· Until such an amendment is proposed to resolve this discrepancy, police officers have been instructed to use other relevant sections under the BNS if they receive complaints of a similar nature, such as physical harm and wrongful confinement.
· The IPC and CrPC will run concurrently for some more time along with the new laws as several cases are still pending in courts and some crimes that took place before July 1, 2024 that are reported later will have to be registered under the IPC.
· Online First Information Reports (FIR) now can be filed through the Crime and Criminal Tracking Network System, enabling e-FIRs and Zero-FIRs to be filed in multiple languages without the need to visit a police station.
· Training and assistance have been organised to help all states adapt to the new system.
(Source: PIB/MHA/Lok Sabha)
(Compiled by Navya Saxena, Sudhit Mishra, EN Team. Feedback on this article can be sent to feedback.employment news@gmail.com)