On August 11, also the last working day of the Monsoon Session of the Indian Parliament this year, witnessed a momentous occasion with the introduction of three Bills as an attempt to revamp the Criminal Codes and provisions thereof, both substantive and procedural. The Bills, ever since their introduction, have attracted a great din and bustle in the corridors of law – amongst the Bar and the academia as well.
These Bills introduced are the Bharatiya Nyaya Sanhita, 2023 to replace the erstwhile Indian Penal Code, 1860, Bharatiya Nagarik Suraksha Sanhita Bill, 2023 to suceed the Code of Criminal Procedure, 1973, and Bharatiya Sakshya Bill, 2023 to supersede the Indian Evidence Act, 1872.
Why the Overhaul?
Out of a total pendency of 5.06 crore cases, the share of criminal cases is 3.5 crores. The Union Law Minister in a written response in Parliament on the question of the pendency of cases, attributed the pendency to several factors, including the availability of an adequate number of judges, supporting court staff and physical infrastructure, the complexity of facts involved, nature of evidence, the co-operation of stakeholders viz. bar, investigation agencies, witnesses and litigants and proper application of rules and procedures.
According to the latest edition of the Prison Statistics India Report published by the National Crime Records Bureau, a staggering 77.1 per cent of India’s prisoners in 2021 were undertrials, whereas only 22.2 per cent were convicts – thus depicting a stark difference in the ratio of convicts to the undertrials. When countless individuals languish in jails for years together in the hope that Justice will be served to them one fine day, then the lesser said about the efficiency of the criminal justice system the better.
“From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. The three laws will be replaced and there will be a major change in the criminal justice system in the country…”
– Union Home Minister Amit Shah
The demand for revamping the criminal laws is not a recent phenomenon; rather, the same has been reiterated time and again with calls from several quarters and stakeholders, commissions, and institutions alike. The Criminal Justice System has a myriad of problems – viz. huge pendency of cases, inconsistencies, and inefficiencies in procedure pertaining to the arrest, bail, investigation, and trial; existence of several obsolete substantive provisions and lack of certain penal provisions; arbitrariness in police and prosecutorial actions, lack of modernisation in the law of evidence, etc.
Colonial Creations
Another significant criticism of these laws was that these were colonial creations whose provisions had become obsolete, with a lack of provisions criminalising acts that ought to be penalised, and that even many of these provisions were not in line with our constitutional and social values.
Several attempts have been made from time to time to carry out amendments as per need; these were mostly piecemeal reforms ushered in response to a specific challenge and lacuna. To bring in a comprehensive change, the Union Home Ministry, vide a notification dated May 4, 2020, constituted the Committee for Reforms in Criminal Law to review the three codes of criminal law.
Union Home Minister Amit Shah, while introducing the three new legislations, remarked that from 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. With these three laws, there will be a major change in the criminal justice system in the country.
As per the Minister, consultations were carried out in 18 States, 6 Union Territories, from the Supreme Court of India, 16 High Courts, 5 Judicial academies, 22 law universities, 142 MPs, 270 MLAs, and the public regarding these new laws, as well as the Bureau of Police Research and Development took responses from all the IPS officers, as well as the state and central forces.
As of date, the Bills stand introduced in the Parliament and referred to Parliamentary Standing Committee for review and recommendations, and the drafts are available in the public domain.
Changes & their Analysis
Bharatiya Nyaya Sanhita
The Bharatiya Nyaya Sanhita (BNS) comprises 356 sections, with 175 retained from the IPC with alterations, 22 being repealed, and 8 new sections being introduced.
A bare perusal of the new Bill signifies that there have been comprehensive changes carried out in the substantive criminal law, with the introduction of Community Service as punishment for petty offences, penalising instances of sexual intercourse by defrauding, including in the name of religion with a promise to marry, stricter punishment for sexual offences against minor, etc.
Another set of provisions has been specifically included that penalises murder committed by a group of people on the grounds of race, caste, community, sex, place of birth, or language. Sedition as such stands omitted, whereas strict provisions pertaining to organised crime, terrorist acts, and those endangering the sovereignty, unity, and integrity of India.
The provisions of unnatural sexual offences under erstwhile Section 377 of IPC and that of adultery as an offence under Section 497 of IPC have been revoked. Along with making changes in punishments for certain offences, attempt to suicide has been decriminalized unless done with intent to stop public servant from discharging public duty.
Bharatiya Nagarik Suraksha Sanhita
The Bharatiya Nagarik Suraksha Sanhita (BNSS) consists of 533 sections, out of which 160 have been retained from the Code of Criminal Procedure with revisions, 9 have been repealed, and 9 have been newly added.
As is apparent from reading the Bill, there has been an impetus for greater usage of technology at all stages, including conducting criminal investigations, giving electronic information to police officers with emphasis on the usage of scientific methods of investigation, the inclusion of communication devices for summons and to allow greater access to justice machinery by trials through videoconferencing.
There has also been an addition of certain safeguards against arrest, handcuffing only in certain grave offences, zero FIR and e-FIR, order for samples without arrest, digital display of details of arrested persons, no cognizance by the magistrate without hearing the accused, and duty of Jail Superintendent to apply for Bail for undertrial on completion of portion of imprisonment, thus adding to the security of the individual without compromising with due process and constitutional values.
Additionally, there are certain provisions to upscale the efficiency like Deemed Sanction to prosecute public servants beyond a period, no more than two adjournments, time-bound judgment delivery and uploading, and a timeframe for mercy petitions. Summary Trails have been allowed in all cases with imprisonment less than 3 years subject to conditions.
Reforms that come to the rescue of the victims include ex-parte trials in cases of proclaimed offenders not likely to be arrested, and Police to inform the victim/complainant about the progress of investigation within 90 days.
The Bill defines and clarifies certain procedures while also providing definite timelines for a lot of procedures that otherwise are not present in the CrPC. There is yet criticism of the Bill on the ground that it does not simplify the procedures prescribed under the present law.
While the Bill emphasises the use of electronic modes for recording statements of the accused and witnesses, it simultaneously calls for their signatures on the recorded statement and thus may defeat the entire objective. The same applies to a complaint made over electronic communication which is required to be signed within three days, and thus is counterproductive.
Concerns have also been raised in certain quarters as to the provision requiring the conduct of a preliminary inquiry before proceeding with the actual investigation on the apprehension that the same may lead to delay in investigation and loss of evidence. However, given the rampant misuse of the penal provisions for personal rivalries and false/frivolous cases, such a provision must be welcomed.
Another provision that has been flagged is that allowing investigating agencies to investigate during the trial could lead to more delays. However, as such, there are limitations about the time period as well as the requirement of permission of the Court to carry out the same.
One discrepancy that meets the eye is Section 262 of the new Bill which provides for filing of an Application for discharge after the framing of charges.
Once the charge has been framed, the accused must be put on trial and thereafter convicted or acquitted, he cannot be discharged. Discharge post-framing of charge is not contemplated in the existing framework.
There is an apprehension that allowing police officers to use handcuffs against persons accused of offences of a certain gravity might impinge upon fundamental rights. However, enlisting the conditions only when handcuffing can be done (as made in the Bill) would also help in reducing the frequent usage of handcuffs to detain people, irrespective of the gravity and nature of the offence.
Bharatiya Sakshya Bill
The Bharatiya Sakshya Bill has 170 sections. Of these, 23 sections stand sourced from the Evidence Act with amendments, 5 sections have been removed, and 1 new section has been added.
The Statement of Objects and Reasons of this Bill highlights that the Indian Evidence Act has been repealed because it fails to ‘address the technological advancement undergone in the country during the last few decades.’ The present law was not yet adept at the new technological advancements and ever-evolving avatars of electronic evidence.
The definition of Document under Section 2(1)© of the Bill has been expanded to include electronic or digital records, e-mails, server logs, computers, smartphones, laptops, SMS, websites, locational evidence, mails, and messages on devices.
The Bill provides for the admissibility of an electronic or digital record as evidence and it shall have the same legal effect, validity, and enforceability as paper records. This would permit the appearance of witnesses, accused, experts, and victims through electronic means.
Under the Bill, the ambit of what constitutes secondary evidence has also been expanded to include copies made from the original by mechanical processes, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them, and oral accounts of the contents of a document given by some person who has himself seen it, and that giving matching hash # value of original record will be admissible as proof of evidence in the form of secondary evidence.
However, conflict exists between Sections 61, 62 and Section 63 of the Bill, which deal with electronic evidence. While Section 61 attempts to place electronic evidence at par with documentary evidence, further supported by Section 62, which makes the procedure for proving documentary evidence also applicable to electronic evidence, Section 63 begins with a non-obstante clause and overrides the previous sections, thus creating a distinction between documentary evidence and electronic evidence.
There is also inconsistency in the definition of the Document in the Bharatiya Nyaya Samhita and the Bharatiya Sakshya Samhita, which needs to be brought in sync with each other; while the Nyaya Sanhita has a narrow definition not including the electronic and digital documents within its purview, the one under Sakshya Samhita is way broader.
Another significant fact that needs to be borne in mind while analysing the provisions of this Bill is that, unlike the two criminal codes, the law of evidence applies to criminal as well as civil law. Therefore, any changes brought into the language of the Act would warrant a rethink as to its repercussions on the Civil Procedure.
Conclusion
Any self-esteemed society or individual desires to undo the subjugation meted out and to break free from the shackles of foreign tools of exploitation imported and imposed upon it. It was a mark of disgrace that despite seven decades of independence, we were forced to carry on the legacy of and be governed by the archaic and colonial criminal justice system designed by Lord Thomas Babington Macaulay.
Before parting away, it is also pertinent to take note of the words of colonial origin that have been expunged in the new Bills, including Jury, Barrister, Commonwealth, Provincial Act, Her Majesty’s Government/Dominions, and references to Parliament of the UK, British Crown, etc. Overall, the Bills are evident in being driven by noble intent and have been delivered well with minor hiccups and typos here and there, which need to be corrected. Some of these anomalies have been detailed hereinabove, however, despite sincere attempts to weed out the same, it is not claimed that the lists are exhaustive in themselves.
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