The president's assent has been given to the three new bills passed on 21st December 2023. The IPC,1860; the CrPC,1898 and the Evidence Act,1872 were replaced by the new bills passed by the Rajya Sabha during its winter session, with a vision to revamp the current criminal legal justice system of India.
The IPC, the official criminal code, was drafted in 1860 during the wake of the first law commission of 1834 under the Charter Act of 1833. Much later during 1973, the Criminal Procedure Code was enacted and became effective from 1 April 1974. Apart from these codes, the Evidence Act was originally passed during the British Raj by the Imperial Legislative Council in 1872.
These have construed the criminal justice system of India for so long and acted as foundational pillars in delivering justice. Through changing times and worsening crimes, they have been rightly amended. However, the question of implementing a huge shift in the legal system of India is yet to be unfolded in many ways. Democracy demands laws and rules of an independent India, abolishing the British Raj regimes.
In a similar attempt to put forth newer and better criminal laws in the country, the government introduced three bills namely Bharatiya Nyaya Sanhita replacing the IPC, 1860; Bhartiya Nagrik Suraksha Sanhita Bill replacing the CrPC, 1898 and Bharatiya Sakshya Bill replacing the Evidence Act, 1872. Along with changing names, there have been some key changes made in each, with more stringent punishment and providing justice promptly without delays. The claims of Home Minister Amit Shah of following up with the process of filing FIR to judgment online once the bills have been implemented. There is no doubt that at some point this step was needed ever since the outbreak of COVID-19 and lockdowns, restricting citizens ' justice.
Criticism of Bharatiya Nyaya Sanhita Bill, 2023
UAPA’s definition of the terrorist act under Section 15 was adopted under Section 113 of BNS, This is relatively more limited in comparison to the breadth of the offense as outlined in BNS I. Significantly, the Explanation in this segment empowers a Superintendent of Police or an officer of higher rank to determine whether the prosecution of a terrorist act should persist under the UAPA or section 113 of this legislation. However, there is still uncertainty regarding how the BNS applies to terrorism-related offenses under the UAPA.
Differences in the definition of child offenses exist due to inconsistencies in age thresholds within various laws. Although the BNS2 identifies a child as an individual below 18 years old, offenses such as rape and gang rape have different age requirements, leading to incongruity within the legal framework.
The BNS2 maintains the IPC regulations concerning rape and sexual harassment without incorporating the suggestions proposed by the Justice Verma Committee in 2013. These recommendations, which included proposals to render the crime of rape gender-neutral and to classify marital rape as an offense, have not been adopted in the BNS2.
Unnatural intercourse against men or bestiality is no longer an offense under BNS.
Major reform of Sedition law in the IPC, the word has been removed and replaced with a broad, ambiguous terminology in the BNS limiting the scope of free speech and journalism, more so criminalizing misinformation in a vaguely defined manner. In addition, crimes such as cyber-crimes, financial scams, etc are categorized as “organized crimes” with much more stringent punishments, also expansively worded.
Criticism of Bharatiya Nagarik Suraksha (Second) Sanhita, 2023
The bill puts significant power in the hands of the police. Increasing the maximum time for police custody from 15 days to 60 or 90 days (varying on the nature of the crime) poses a threat to people under police custody, and fabricated evidence due to excessive detention.
It permits the use of handcuffs in many different cases, which infringes an accused person’s rights. This is in contradiction to the directives laid down by the Supreme Court and the NHRC.
According to the CrPC, if an undertrial has completed half the maximum imprisonment for an offense (except for those punishable by death), they should be released on a personal bond. The BNSS keeps this rule but includes that first-time offenders can get bail after serving one-third of the maximum sentence. However, this doesn't apply to offenses punishable by life imprisonment or when multiple cases are pending against the individual. Since chargesheets often involve multiple offenses, many undertrial prisoners might not qualify for mandatory bail.
The ability to confiscate property obtained from criminal activities lacks the protective measures outlined in the Prevention of Money Laundering Act. This raises worries about potential misuse or insufficient supervision of this authority.
The BNSS2 keeps the CrPC rules concerning public order maintenance, sparking debate about whether trial procedures and public order management should be governed by one law or handled as distinct matters.
Evidence Presentation by Retired or Transferred Officers: The BNSS allows evidence collected by retired or transferred investigating officers to be presented by their successors. This departs from the conventional rules of evidence, where the author of the document should be subject to cross-examination.
Criticism of Bharatiya Sakshya Bill, 2023
Admissibility of electronic devices as primary evidence - The IEA permits electronic records as secondary evidence and outlines the process for admission. The BSB amends this, stating that well-kept electronic records are primary evidence unless challenged. This leads to two major problems i) tampering with electronic records, ii) electronic records’ admissibility is ambiguous.
Information obtained from an accused while in police custody is considered admissible under the IEA if it leads to a fact discovered. However, if the same information is received from an accused outside police custody, it isn't admissible. The BSB maintains this differentiation. The law commission
Furthermore, the bills were passed in the absence of around 141 members of the opposition (of both houses) due to their suspension amid a parliament security breach. A similar concern was raised by the former CJI NV Ramana in 2021 regarding the importance of parliamentary debate in terms of the enactment of laws. Moreover, even after going through the recommendations of the Standing Committee on Home Affairs for 3 months and releasing 3 separate reports, there are still many concerning provisions regarding the safety and privacy of the citizens. There was no public consultation of the bills and the expert's suggestions were not made public either. Although steps have been taken to ensure clarity and accountability, there is still a lack of reforms in many needed fields. A better, effective, and speedy justice system can only be established if deeply rooted structural barriers are taken care of. Problems of high vacancy and overburdened judiciary along with scientific and technological developments persist.
These Bills fail to address the deep-rooted injustices in our criminal justice system. While there are differences in the various versions of the bills, none of them fundamentally shift the approach to criminal law. Instead of decolonizing criminal law, these Bills solidify colonial-era principles, emphasizing the state's primary aim to exert maximum control over people through criminal law. The recent passing of three new bills aimed at reforming India's criminal legal system brings both promise and concern. While these laws aim for more stringent punishments and streamlined procedures, they also raise questions about certain limitations and potential drawbacks. The absence of a broader parliamentary debate, lack of public consultation, and unresolved issues regarding citizens' safety and privacy indicate the need for deeper reforms. Addressing structural barriers, including high vacancies and technological advancements, remains crucial for establishing a more efficient and just legal system in India. The ultimate aim of removing the colonial era from the criminal justice system ended up making the bills colonial and worsening the opportunity to finally address the issues of our flawed criminal justice system.