INTRODUCTION

• In 2023, Parliament passed three criminal laws, which President Droupadi Murmu assented to in December of that year, with the laws taking effect on July 1, 2024.

• The Indian Parliament has taken a transformative step in the criminal justice system by replacing three historic laws: the Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872.

• These have been replaced with the Bharatiya Nyay Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Bharatiya Sakshya Adhiniyam, 2023, respectively.

• These new laws, grounded in Indian values of justice (nyaya), signify a shift from a punitive to a justice-oriented approach, reflecting Bhartiya Nyaya Paddhati.

Comparisons 

• Bharatiya Nyay Sanhita (BNS)

• Replaces: Indian Penal Code (IPC) 

• Total sections: 358 (reduced from 511) 

• Similarities in Structure: Both the BNS and IPC begin with chapters on general principles like exceptions, punishments, and abetment, reflecting a common structure for criminal law.

• Shifting Priorities:In the BNS, crimes against women (Chapter V) come before offences against the state (like sedition). This suggests a possible prioritisation of crimes against women by the BNS.

• Key changes:

• Addition of 20 new crimes

• Increased imprisonment sentences for 33 crimes

• Higher fines for 83 crimes

• Mandatory minimum punishments for 23 crimes

• Community service as a penalty for 6 crimes

• Repeal of 19 sections

• Bharatiya Nagrik Suraksha Sanhita

• Replaces: Code of Criminal Procedure (CrPC)

• Total sections: 531 (increased from 484)

• Key changes:

• 177 provisions altered

• 9 new sections and 39 new subsections added

• 44 new provisions or clarifications introduced

• Timelines added to 35 sections. Strict timelines for delivering trial judgments within 45 days and framing charges within 60 days.

• Audio-video provisions incorporated at 35 locations

• 14 sections repealed

• Bharatiya Sakshya Adhiniyam

• Replaces: Indian Evidence Act

• Total provisions: 170 (increased from 167)

• Key changes:

• 24 provisions altered

• 2 new provisions and 6 new sub-provisions added

• 6 provisions repealed
  
  

Bharatiya Nyay Sanhita(BNS)

Features

• Clause 69: Penalises sexual intercourse obtained through deceitful means, including false promises of marriage, employment, or identity concealment, with up to 10 years of imprisonment and a fine.

• Clause 103: Introduces a new criminal offence specifically for murder motivated by race, caste, or community.

• This provision is seen as a response to the Supreme Court's 2018 directive, urging the central government to consider a separate law for lynchings.

• Clause 111(1): Defines organised crime to include a range of activities such as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes with severe consequences, human trafficking for prostitution or ransom, and trafficking in illicit goods.

• Integrates offences previously covered under specific laws like the Unlawful Activities Prevention Act (UAPA) for terrorism and state laws such as the Maharashtra Control of Organised Crime Act (MCOCA) 

• Clause 304(1): Introduces snatching as a distinct crime separate from theft.

• Definition: Snatching is defined as the act of suddenly, quickly, or forcibly seizing, securing, grabbing, or taking away movable property from any person or their possession with the intention to commit theft.

• Punishment: Both theft and snatching under the BNS carry a maximum punishment of up to three years of imprisonment.

• Community service as an alternative punishment: Introduced under Section 4 of the BNS, it is applicable for certain offences like small theft, defamation, obstructing a public official from performing her duty, public misconduct by intoxicated individuals, and failure to comply with specified proclamations under Section 84(1) of the BNS.

• This aims to reduce overcrowding in prisons, particularly benefiting first-time offenders and those convicted of minor offences.

• Expansion of Definition of Rape: Sexual intercourse with a minor wife is now categorized as rape under the BNS, addressing a loophole in the IPC which previously exempted intercourse with a wife not under 15 years from being considered rape. 

• The change aligns with the Supreme Court's 2017 ruling that deemed the IPC provision contradictory to child rape laws in the POCSO Act.

• Emphasis on Speedy Trials: The BNS emphasises the use of video-conferencing for trials and mandates timelines for swift resolution of cases. 

• Courts have to issue rulings within 45 days of completion of arguments, unlike earlier when no such time period was defined. Similarly, charges in a trial have to be framed within 60 days of the first hearing.

• Offence Of Adultery Omitted:In light of the Supreme Court's decision in the Joseph Shine case, the offence of adultery has been abolished. However,BNS retains Section 498 of the IPC (Section 84), which penalises a man for enticing another man's wife to engage in sexual intercourse with any person.

• Attempt to Suicide: Section 309 of the IPC, which penalized attempted suicide, has been omitted in the BNS, removing the stringent punishment associated with it.

• However, Section 226 of the BNS criminalizes attempts to commit suicide aimed to compel or restrain any public servant from discharging his official duty.

• It is punishable by up to one year of simple imprisonment, a fine, or community service.

Criticism

• Criminalisation of consensual relationships: Critics argue that Clause 69 could criminalise consensual relationships and be misused to support the "love jihad" narrative, targeting interfaith relationships and increasing societal tensions.

• Criticism of Vague Definitions: 

• Critics have raised concerns over ambiguous terms like "cyber-crimes having severe consequences," urging clarity to prevent potential misuse and ensure legal precision.

• Critics argue that the BNS lacks a clear definition of community service, leaving its interpretation to judicial discretion.

• Reintroduction of Sedition: Contrary to the government's announcement of doing away with sedition, the BNS reintroduces the offence with a broader scope. It replaced the term "rajdroh" with "deshdroh,"  incorporating Supreme Court guidelines from the Kedarnath Singh case of 1962, which upheld its constitutionality

• Exclusion of Section 377: The BNS omits Section 377 of the IPC, which was partially struck down in 2018 for criminalizing consensual same-sex relations but remained applicable for cases of non-consensual sex, including rape of men.

• Current laws primarily protect women as victims of rape, lacking specific provisions for male victims.

Bharatiya Nagarik Suraksha Sanhita

Features

• Clause 187(3): The BNSS introduces a significant increase regarding detention in police custody compared to the CrPC (Code of Criminal Procedure).

• The CrPC (Section 167(2)) restricts police custody of an accused to a maximum of 15 days. 

• Clause 187(3) of the BNSS alters this significantly by removing the phrase "otherwise than in police custody." This allows the police to potentially hold an accused for up to 90 days for all offences.

• Victim-Centric Approach: Prioritises victims by introducing stricter timelines for trial completion, aiming to expedite justice delivery and reduce delays in legal proceedings.

•  In cases where the punishment is seven years or more, the victim shall be given an opportunity of being heard before withdrawal of the case by the government.

• Introduction of Trials in Absentia:Allows for the trial and conviction of individuals accused of crimes even if they are not present in court. 

• This provision aligns with existing practices under stringent laws like the UAPA, aiming to streamline legal proceedings and address delays caused by absconding accused persons.

• Removal of Statutory Bail Provision: The provision for statutory bail is removed if an accused has multiple offences against them.

•  Previously, under the CrPC, an accused could be granted bail after serving half of the maximum sentence for the offence to prevent prolonged incarceration without trial.

• Documentation: Police raids and seizures will need to be mandatorily videotaped and forensic experts have to mandatorily visit a crime scene for serious offences

• Zero FIR: BNSS mandates the registration of Zero FIR under Section 173 and stipulates that such information can be given orally or electronically, requiring prompt recording and subsequent transfer to the appropriate jurisdiction. 

• e-FIR: The process for filing an e-FIR under the BNSS allows complainants to submit information electronically via the police portal or website. 

• Upon submission, the complaint must be signed by the complainant within three days for it to be officially recorded by the police. 

• After signing, the complaint undergoes initial verification by the investigating officer to determine if a prima facie case exists, as per Section 173(3) of the BNSS. 

• This verification process may include a preliminary enquiry within fourteen days, as necessary.

Criticism

• Reversal of Burden of Proof: Unlike traditional criminal proceedings where the burden of proof lies with the state, trials in absentia shift this burden to the accused.

• Critics argue that this undermines the principle of innocence until proven guilty and places an unfair onus on individuals to prove their innocence, potentially compromising their right to a fair trial and due process.

• Prolonged detention: Critics argue that removing statutory bail could lead to prolonged detention of individuals awaiting trial, potentially violating their right to a speedy trial and presumption of innocence. 

• Example: The case of JNU student Sharjeel Imam, who was granted bail by the Delhi High Court, highlights concerns over prolonged incarceration.

• Police Custody Period:  Critics and civil rights activists are concerned that the new law, may potentially permit the police to detain an accused person for extended periods ranging from 60 to 90 days after their arrest, in addition to the initial 15-day remand period 

Bharatiya Sakshya Adhiniyam

Features

• Electronic Records: Electronic records are classified as primary evidence. It expands such records to include information stored in semiconductor memory or any communication devices (smartphones, laptops).

• Joint Trial: A joint trial refers to the legal proceeding where multiple individuals are tried together for the same offence or related offences.

•  In such trials, evidence and testimonies presented against one accused may affect the others involved in the case. 

• The BSA elaborates that if one accused confesses and implicates others, and if any accused is absconding or has not responded to an arrest warrant, this confession will be considered against all the accused in the trial.

Criticism

• Risk of tampering: While the act provides for the admissibility of electronic records, there are no safeguards to prevent the tampering and contamination of such records during the investigation process

General Criticism

• Retention of Old Provisions:Critics argue the new laws largely retain existing provisions, merely renumbered and relabeled, offering little substantive reform.

• Learning Curve:The reorganised laws impose a significant learning curve on legal professionals, potentially causing confusion and inefficiencies in the criminal justice system.

• Parallel Application: With old laws applicable to pending cases until July 1, 2024, dual application could lead to legal ambiguities and procedural challenges.

• Expanded Police Powers: Concerns over expanded police custody powers under the new provisions raise civil liberties and due process concerns.

• Judicial Challenges: Supreme Court's refusal to entertain PILs on procedural grounds has been criticised for sidelining substantive legal issues.

• Infrastructure Needs:Chief Justice Chandrachud stressed the need for infrastructure investments to ensure effective implementation, highlighting potential shortcomings in the new laws' impact and fairness.

  
  

  Short Takes

  Unlawful Activities (Prevention) Act (UAPA):  Amended in 2019, grants the central government expanded powers to designate individuals as terrorists and seize their properties, aiming to enhance India's counter-terrorism framework.

  Zero FIR: Zero FIRs, allows any police station to register a First Information Report (FIR) for a cognizable offence irrespective of where it occurred.

CONCLUSION

In conclusion, while the introduction of India's new criminal laws under the BNS, BNSS, and BSA represents a significant attempt to modernise and streamline the legal framework. However, concerns over lack of clarity in definitions and challenges in impl

Tags:
Polity

Keywords:
Bharatiya Nyaya Sanhita (BNS) Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA)