India has recently passed three new criminal laws to replace colonial-era legislations, sparking significant debate and legal challenges. The new laws include the Bharatiya Nyaya Sanhita (Indian Penal Code), the Bharatiya Nagarik Suraksha Sanhita (Code of Criminal Procedure), and the Bharatiya Sakshya Adhiniyam (Indian Evidence Act). These laws have been the subject of controversy, with concerns raised about their potential impact on civil liberties and the justice system.
The Bharatiya Nyaya Sanhita, which replaces the Indian Penal Code, introduces several significant changes. It includes provisions to expand detention in police custody, decriminalize homosexuality and adultery, and define the notion of consent. However, critics argue that the new laws give authorities too much power, with provisions that could potentially lead to setbacks and delays in legal proceedings. There are concerns about the potential misuse of vague and broad nomenclature, which could have catastrophic effects on free speech, dissent, and journalistic freedom.
The Bharatiya Nagarik Suraksha Sanhita, replacing the Code of Criminal Procedure, has also been met with criticism. It attempts to digitize many aspects of criminal procedure and includes ‘digital evidence’ under the ambit of the evidence law without outlining procedural safeguards. This has raised concerns about the potential threat to fundamental rights such as privacy and free speech.
The Bharatiya Sakshya Adhiniyam, which replaces the Indian Evidence Act, has been challenged in the Supreme Court. A petition has been filed seeking a stay on the new laws, claiming that they suffer from many defects and discrepancies. The petition also highlights the lack of parliamentary debate and the need for an expert committee to examine the viability of the three criminal laws.
While the new criminal laws of India aim to modernize the country’s legal framework and remove archaic references, they have been met with criticism and legal challenges. The potential impact of these laws on civil liberties, free speech, and the justice system remains a topic of significant debate and concern.
Context
The Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872 (IEA), the Code of Criminal Procedure, 1882, the Police Act, 1861, and the Prisons Act, 1894 were enacted as the main laws to govern criminal justice in British India. The Code of Criminal Procedure was replaced in 1898 and again by the Code of Criminal Procedure, 1973 (CrPC). After the commencement of the Constitution, police and prisons were placed in the State List of the Seventh Schedule.
While, the IPC, CrPC, and IEA govern the overall criminal justice system, over the years various special laws have been enacted to penalise certain offences and provide for separate procedures. For instance, the Unlawful Activities (Prevention) Act, 1967 deals with terrorist activities and unlawful activities of individuals and associations. The Protection of Children from Sexual Offences Act, 2012 protects children from sexual assault and pornography. The Food Safety and Standards Act, 2006 is a regulatory law that penalises offences including food adulteration. Various states have also enacted laws to control organised crime.
On August 11, 2023, three Bills were introduced in Lok Sabha to replace the IPC, CrPC and IEA. These are the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB), respectively. The three Bills have been examined by the Standing Committee on Home Affairs.
Key Issues of Criminal Law Reform
- Contrasting reformative and punitive justice, the New Law aim to shift towards a rehabilitative system by advocating community service over imprisonment. However, their overall approach largely maintains the current punitive nature of the criminal justice system.
- Distinguishing between civil and criminal jurisprudence, the New Law retain various offenses from the IPC and CrPC that might be considered civil disputes, causing harm to individuals rather than constituting offenses against the public or the state.
- Examining trial procedures and the preservation of public order, the BNSS outlines investigation and trial processes, along with provisions for maintaining law and order. The debate arises on whether a criminal procedure law should encompass aspects of maintaining public order.
- Addressing the intersection with special laws, the New Law retain provisions from the IPC, which are also present in other specialized laws. Removing such overlaps could potentially streamline the legal framework and reduce inconsistencies and administrative redundancies. Additionally, the New Law introduce provisions from other laws concerning terrorism and organized crime.
- Regarding the age of criminal responsibility, the New Law maintain the minimum age at seven years, which deviates from international conventions and norms observed in other jurisdictions.
- Highlighting the issue of a high proportion of undertrials in jails, the BNSS preserves existing CrPC provisions, prohibits bail for individuals with multiple pending cases, and excludes the possibility of plea bargains for lesser offenses.
- Examining the codification of court judgments and committee recommendations, the New Law omit several court directions related to anticipatory bail and arrest procedures. Moreover, they overlook recommendations from high-level committees on matters such as arrest, confessions, bail, and the death penalty.
- Addressing institutional bottlenecks in the justice system, such as police vacancies and inadequate forensic capacity, the New Law do not provide solutions to enhance the efficiency of justice delivery.
- The New Law exhibits gaps not addressed in existing laws. For instance, the BNS eliminates the previous Section 377 of the IPC, resulting in the absence of a law criminalizing the rape of an adult man. Furthermore, various drafting errors are evident, such as the substitution of “provided that” with “unless,” thereby reversing the circumstances under which an intoxicated individual cannot be held accountable for an offense.
Obsolete illustrations within the New Law reference items like swords, horsewhips, cannons, chariots, and palanquins. Illustrations are designed to facilitate comprehension for the public and judges, providing examples that fall under specific sections. Consequently, illustrations should be pertinent to everyday life. For specific instances of gaps, drafting errors, and outdated illustrations, please refer to our Legislative Briefs on the respective New Laws.
- In 1979, the Supreme Court underscored that the primary objectives of administering criminal justice in India should prioritize the reformation and rehabilitation of offenders over merely deterring crime. The concept of punishment as a reformative measure, aimed at reintegrating offenders into society, plays a central role in the overhaul of the criminal justice system. The Report on the Draft National Policy on Criminal Justice (2007) advocated for the incorporation of specific reformative elements into criminal law. These elements encompass-
(i) the decriminalization of offenses that can be addressed through civil processes,
(ii) the integration of settlement without trial through mechanisms like compounding and plea bargaining, and
(iii) the authorization of compensation and community service for offenses such as vagrancy. The New Laws make a modest stride toward reformative justice by introducing community service as an alternative to incarceration for certain offenses.
However, their overall character predominantly adheres to the punitive nature of the criminal justice system. - The Criminal Procedure Code (CrPC) outlines the procedure for investigating and trying offenses, incorporating provisions for ensuring security and upholding peace, public order, and tranquility. It empowers a District Magistrate to issue necessary orders for preserving public order. The Bharatiya Nagarik Suraksha Sanhita (BNSS) retains these provisions, organizing them into separate chapters. Given that trial procedures and the maintenance of public order are distinct functions, the question arises whether they should be encompassed within the same legal framework or addressed separately. According to the Seventh Schedule of the Constitution, public order is a state subject. However, matters falling under the CrPC (pre-dating the Constitution) are categorized under the Concurrent List.
Finally, discussing drafting issues, the New Law fail to rectify certain gaps in offenses, contain numerous drafting errors, and utilize outdated illustrations. While the aim of the laws is to reform the criminal justice system, which was long overdue since independence, there are concerns about the potential implications for fundamental rights and the functioning of the legal system. The impact of these laws will likely continue to be a subject of debate and scrutiny. The specific details and implications of these laws are complex and multifaceted, and the full extent of their impact will become clearer as they are implemented and tested in practice.
ALSO READ: MARITAL RAPE: AN INTENTIONAL DELAY?
DISCLAIMER: The views, information, or opinions expressed in the blog are solely those of the author and do not necessarily represent those of Law Chakra and its employees.
