The substitution of the existing colonial criminal laws with the Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam in 2023 (‘New Criminal laws’) has been a contentious issue. The Bharatiya Nyaya Sanhita, 2023 has replaced the Indian Penal Code, 1860, the Bharatiya Sakshyam Adhiniyam, 2023 has swapped the Indian Evidence Act, 1872 and the Bharatiya Nagarik Suraksha Sanhita, 2023 has substituted the Code of Criminal Procedure, 1973. The New Criminal laws are set to come into effect from July 1, 2024, and at such time the question that arises is whether the introduction of the New Criminal laws will ensure speedy and efficient justice is made available to the people of India.
Explicit Features of The New Criminal Laws
Bharatiya Nyaya Sanhita, 2023 (BNS) has introduced a new set of offences and punishments which were not a part of the Indian Penal Code, 1860:
i. ‘Community Service’ is added as one of the punishments in Section 4 of BNS to bring a sense of reformative restorative justice. The petty offences punished with ‘Community Service’ comprise of inter alia (a) non-appearance in response to a proclamation, (b) attempt to commit suicide, (c) to compel or restraint exercise of lawful power of public servant, (d) petty theft on return of theft money, (e) misconduct in public by a drunken person, and (f) defamation. The term “Community Service” is not defined, however, Explanation to section 23 of BNS explains it to mean the work which the Court may order a convict to perform as a form of punishment that benefits the community without any remuneration.
ii. Abetment of an offence committed in India, by a person outside India has now been made an offence under Section 48 of the BNS.
iii. Having sexual intercourse on false promise of inter alia marriage, employment, promotion or by suppressing identity has been made an offence under Section 69 of the BNS.
iv. The act of hiring, employing, or engaging a child to commit an offence, is made a punishable offence under Section 95 of BNS, and entails penalty of imprisonment for a minimum period of seven years, extendable to ten years.
v. To address the rising hit and run cases, Section 106(2) of the BNS, 2023 has been inserted. However, due to several concerns raised by transporters and drivers across the country, Section 106(2) of BNS, 2023 has been excluded from coming into effect.
vi. Commission, attempt, abetment or conspiracy of organized crimes and terrorist acts have been made punishable under Sections 111 and 113 of the BNS 2023, which were scattered in different statutes earlier.
vii. A category of culpable homicide relating to ‘lynching’ along with a provision for offences of ‘mob-lynching’ has been introduced in BNS in Section 103(2) of the BNS.
viii. ‘Attempt to commit suicide’ has been removed as an offence in the BNS, 2023.
ix. Specific types of ‘Organised Crime’ are introduced as offences under Section 109 of BNS, which was not covered under IPC but is a prevailing offence under the Maharashtra Control of Organised Crime Act, 1999 (‘MCOCA’).
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has brought a significant change in the procedural aspects of criminal laws, some of which are as under:
i. Electronic communication for registration of FIRs and issuance of summons/ warrants, is now an accepted norm.
ii. Provision for registrations of “Zero FIR’s”, i.e., FIRs registered at one jurisdiction to be transferred to another jurisdiction, has been added.
iii. BNSS now provides discretionary powers to the police in relation to the method of arrest for serious offences. However, the usage of handcuffs by the officer at the time of arrest is restored under Section 46 of BNSS.
iv. Declaration of a “proclaimed offender” has been extended to include offences that are punishable with imprisonment of 10 years or more, or with life imprisonment, or with death, under Section 84(4) of BNSS.
v. In a step to make the law victim centric, Section 193(3)(ii) mandates that the police officer to inform the progress of investigation to the informant or victim within 90 days of the investigation.
vi. Section 398 of the BNSS provides for witness protection schemes, a provision that was not present in Code of Criminal Procedure.
vii. Section 479 of BNSS has relaxed provisions for bail of undertrial prisoners. A more sympathetic approach has been adopted for first time offenders by instituting release on bonds, if such prisoners have undergone detention for the period extending up to one third of the maximum period of imprisonment specified for that offence.
Bharatiya Sakshya Adhiniyam, 2023 has expanded the provisions of evidence placed before the Courts in inter alia the following manner:
i. The definition of “documents” is expanded to include electronic or digital record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, cloud, locational evidence and voice mail messages stored on digital devices under Section 2(1)(d) of BSA.
ii. Similarly, the definition of ‘evidence’ has been enlarged to include any information given electronically under Section 2(1)(e) of BSA. This will permit the appearance of witnesses, accused, experts and victims to depose their evidence through electronic means.
iii. Section 58 of the BSA expands the scope of secondary evidence by including oral / written admissions or testimonies of a persons who have examined the document.
iv. ‘Coercion’ has been added to Section 22 of BSA as one of the acts causing a confession to become irrelevant.
v. As per Section 61 of the BSA, admissibility of electronic or digital records will be in parity i.e., have the same legal effect, validity and enforceability as other documents.
Features That Could Have An Adverse Impact
While all of the aforementioned appears to be addressing concerns about the changing scenario of the nation, some of the elements that may be claimed to be sterner than those of the earlier criminal laws are as follows:
i. The duration of police remand has been increased from the earlier maximum term of 15 days to 60 to 90 days. This could raise concerns alleging the arbitrary increase in the powers of the police to the detriment of the public.
ii. The usage of hand-cuffs and solitary confinement have been held inhuman and barbaric by the Courts of India. Despite the same, these have been re-introduced in the new criminal laws.
iii. Without defining Community Service, the punishments could lead to arbitrary allocation of tasks that could be against human dignity.
iv. The introduction of the offence of ‘mob-lynching’ could turn out to be an indirect threat to the fundamental right of peaceful protests and rallies.
v. While Section 106(2) which increases the punishment for hit and run cases, has been put on hold, the issue of vehicular accidents being caused by failure of automobiles seems to be ignored.
vi. With the introduction of electronic communication as evidence, there seem to be minimal measures for ensuring that such electronic communication is not fake or forged.
Conclusion
Although, the enactment of the New Criminal Laws is an essential departure from the colonial rules, the practical impact of these laws on the society at large and the challenges which may arise are yet to be determined. However, as citizens, we always look at the Courts for justice and we hope that appropriate measures will be taken to address concerns voiced about the not-so-widely accepted New Criminal Laws.
Authors: Vidhur Malhotra, Parikshith K & Shalvika Nachankar