INTRODUCTION
The Indian Penal Code (IPC) of 1860, the Criminal Procedure Code (CrPC) of 1973, and the Indian Evidence Act of 1872 comprise the main components of India’s vast criminal law system. The primary criminal code, the IPC, lists many offenses and the respective penalties. For example, Section 302 of the IPC describes murder; Section 376 rape; Section 498A describes abuse by a spouse or his family; and Section 420 deals with fraud. The Criminal Procedure Code (CrPC) defines the processes for implementing criminal laws. It addresses investigation, arrest, bail, trial, and appeals. It also specifies the duties and powers of police officials, magistrates, and judges. The Indian Evidence Act establishes appropriate evidence and the manner in which it must be presented in court. It regulates the legality of evidence in Indian courts.
India also has a number of special and local laws that target certain offenses in addition to these main laws. Some examples of these laws are the Narcotic Drugs and Psychotropic Substances Act, the Prevention of Corruption Act, the Protection of Children from Sexual Offenses Act, and the Dowry Prohibition Act. The protection of fundamental rights, such as those guaranteed by Articles 20, 21, and 22, which prohibit arbitrary conviction, guarantee the preservation of life and liberty, and prevent arbitrary arrest and imprisonment, is an additional significant role of the Indian Constitution in the criminal justice system. A strong legal framework that seeks to uphold individual rights while delivering justice is bolstered by other noteworthy statutes, such as the Information Technology Act for cybercrimes and the Juvenile Justice Act for juvenile offenders.
THE BACKGROUND
The Bharatiya Janata Party led government introduced three bills in the Lok Sabha in August, 2023 which was then referred to the parliament in December, 2023 which gave its recommendations but without much heed to the recommendations the bill was passed in the parliament as well in the absence of much of discussion since 142 opposition members were suspended. The bill has now sailed through the formality of the president`s ascent as well and is to be brought in force from 1st July, 2024.
The government additionally asserts its intention to eliminate colonial-era legislation and adapt criminal law to reflect Indian values and contexts. It emphasises that the term “colonial” does not merely pertain to the period in which a law was enacted. Rather, the essence of colonialism is characterised by the nature of the relationship between the government and its citizens. Therefore, in assessing the new law, it is crucial to examine whether it has effectively addressed and removed the colonial characteristics of the law, focusing on the dynamics of governance and citizenry.
THE NEED FOR THE NEW ACTS
The three new acts namely Bharatiya Nyaya Sanhita (BNS) replacing Indian Penal Code of 1860 (IPC), Bhartiya Nagrik Suraksha Sanhita (BNSS) replacing The Code of Criminal Procedure, 1973 (CrPC) and Bharatiya Sakshya Adhiniyam (BSA) of 2023 in place of the Indian Evidence Act, 1872. The Home Minister of India, Amit Shah has stated that the new laws provide for a scheme to protect witnesses, to bring airing public servants to hook, to make police more accountable, various provisions like Zero FIR and E-FIR for the convenience of the victims, provide and create separate directorate of prosecution which will help ensure timely justice, speed up the justice procedure and modernise criminal justice system and increase the rate of conviction.
A criminal justice system has 5 key players namely an accused, prosecution, witness, victim and the society at large. And to ensure justice and security to all the five is ought to be the objective of a criminal law. Thus the objective of a criminal law should be to have a speedy investigation procedure which the new criminal law fails keeping the accused in constant threat while the provision for default bail is also diluted. The new criminal provision has no provision for speedy trial. The new law has also lost the opportunity to bring in laws for witness protection. Further, the implementation of the new law will bring in nothing but more chaos due to the different interpretations and an increased number of litigation. Further, bringing in laws on terrorism in the ambit of the new criminal law without protection, bringing back sedition law in the name of treason and having laws controlling the women’s rights over their bodies is outrightly a violation of the Article 19 and Article 21 of the Constitution of India.
WILL THE NEW CRIMINAL LAW BRING IN THE DEVELOPMENTS CLAIMED BY THE HOME MINISTER?
The major changes that have been brought by the new criminal laws includes the following:
Police Custody: In the old law the duration for police custody was maximum of 15 days before going to jail. But as per the new criminal law the police can keep an accused in their custody for up to 30 to 90 days based on the nature of offence which will increase in the number of cases of torture and brutality by the police resulting in custodial death and will be unjust to the accused while conviction still remain scarce.
Bail Provisions: As per the new law bail shall not be granted to a person who has been charged by multiple offences which is a normal trend in the Indian system where multiple subsequent cases are filed against an individual based on an incident thus making it almost impossible to get bail. Further the judges have been reluctant to grant bail during the period of police custody, thus to increase the police custody is defying the concept of “Bail not Jail” as a rule and making it extremely difficult to get bail for the accused, thus taking away the civil liberty of the accused. This further over crowds the already overcrowded jails in India.
Legal Aid: The criminal law has no provision of legal aid for the individuals financially incompetent of affording to pay for the legal expenses which is a missed opportunity to support the economically weaker individuals of our country.
Documentary evidence and report: According to clause 3(30) of BNSS the judges cannot examine the genuineness of the report unless challenged by one of the parties which will burden the victim to ensure challenging of the report failing which the judiciary will be incapacitated to do so suo moto.
Law on Sedition: The earlier sedition law is replaced by even more draconian law which states that any person will be charged with treason who “endanger sovereignty or unity and integrity of India” and the punishment for the same will be 7 years of imprisonment. Owing to the history of the misuse of this colonial law to suppress the activists and oppositions, the arbitrariness of this law and in the definition of offence is a direct attract to the personal liberty and granting the investigative officer with an excessive power opens the door for its misuse against the citizens and their fundamental rights. Even though the new law does not mention the word sedition and criticism of government actions is not called an offence as long as it calls for change via lawful and democratic means fails to meet the standard of law, i.e. it leaves the room for mischievous interpretation wide.
Law in Terrorism: The special offence of terrorism under Unlawful Activities (Prevention) Act of 1967 (UAPA) has now been brought in the ambit of the new criminal law. While the highly misused definition of terrorism has been retained which states “with intent to threaten or likely to threaten the unity, integrity, security economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country”. Under the UAPA Act where there is prior sanction by the government and examination of all evidence by an independent authority required to prosecute someone on “terrorism” charges, the clause in the new criminal laws dos away with is and has granted the power in the hands of the police officers above the rank of Deputy Superintendent to decide on which law to apply. This has become a double barrel gun which will lead to the misuse of law as the police has got an unsupervised discretion to choose the common law over special law to do away with by the safeguards while the conditions to grant bail continue to be stringent.
The other changes to the old law includes one such provision which states that a copy of chargesheet can only be served to a victim if represented by an advocate thus encompassing extra power to the already powerful prosecutor. The new law has also missed the opportunity to do away with the colonial law on right to abortion thus the control over a woman’s over their body continues to be deprived. The law in terms of biometrics has also been altered in the aspect that the magistrate can now ask for the biometrics of all the individuals involved apart from the accused and the witness. This law comprimes on the right to privacy of the individuals and gives more power to the state relying on the fascist ideology of Mussolini which states that “Everything in the State, Nothing outside the State, nothing against the State.”
Further with the provisions on serving electronic summons and audio video summons the state is intending to put in their trust more on the electronics then the individuals which is a highly concerning aspect. Yet another bizarre law is that one is obliged in the direction of failing which they have the power to detain a person for 24 hours.
The new Bharatiya Nyaya Sanhita (BNS) Bill, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, and Bharatiya Sakshya Bill are presented as significant steps towards modernizing India’s criminal justice system. The BNSS Bill, with its potential to enhance police powers, is seen as a move to streamline law enforcement; however, it raises concerns about adequate checks and balances to prevent misuse of authority and custodial violence. The BNS Bill’s emphasis on expedited trials aims to reduce pendency in courts, yet there is a risk that the speed of proceedings might undermine the thoroughness of investigations and the fairness of the judicial process. The Bharatiya Sakshya Bill’s focus on integrating digital and forensic evidence aligns with contemporary advancements but highlights the need for addressing the digital divide and ensuring that law enforcement agencies possess the necessary technical expertise. While these reforms are steps in the right direction, a more nuanced approach with robust safeguards is essential to truly align them with the needs of today’s society.
In addition it is also observed that with the number of pending cases in the country and the criminal laws being prospective in nature, the two criminal justice systems will be going parallely for years to come from now on the implementation of the new criminal law, resulting in overburdening of the system with no technological or infrastructure advancement to tackle the same. the senior council of the Supreme Court of India. Indira has also written a letter dated 11 June 2024, highlighting possible reasons why the need for the three new criminal laws should not be implemented right away on 1 July 2024.
CONCLUSION
In conclusion, while the introduction of the Bharatiya Nyaya Sanhita (BNS) Bill, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, and Bharatiya Sakshya Bill represents a commendable effort to update India’s criminal justice framework, their practical efficacy remains uncertain. The enhanced police powers proposed by the BNSS Bill, though aimed at streamlining law enforcement, necessitate stringent oversight mechanisms to prevent potential abuses. Similarly, the BNS Bill’s focus on expedited trials, while addressing judicial delays, must ensure that the speed of justice does not come at the expense of thoroughness and fairness. Lastly, the integration of digital and forensic evidence under the Bharatiya Sakshya Bill, though progressive, requires significant investment in technological infrastructure and training to be truly effective. Thus, while these legislative efforts are a step towards modernization, their success will depend on careful implementation and continuous evaluation to ensure they meet the complex demands of contemporary society.
Authored by-
Shatakshi Mathur who’s an advocate in the Supreme Court of India & Riya Raj who’s an advocate with background in journalism.