INDIA READY TO OVERHAUL THE BRITISH-ERA CRIMINAL LAWS: AN OVERVIEW OF THE PROPOSED CRIMINAL LEGISLATIONS

While delivering the Independence Day speech in 2022 last year, Hon’ble  Prime Minister Mr. Narendra Modi, promised to transform the Criminal Delivery Justice System in India which was one of the major agendas on the Government’s “Panch Prans”(Five Vows) Scheme.

That said, the bold step could only be taken by replacing the previous Colonial-Era Laws with a new, comprehensive, and inclusive criminal law, and in pursuance of the same, three new Bills have been introduced in the Lok Sabha on 11.08.2023 to revitalize the Indian Criminal Justice Delivery System.

The reasoning behind the new Bills are that, the obsolete laws of the Colonial Era cannot be practised in modern times, when the nature of crime, the psychology of criminals and the technology have changed drastically, calling out, for the overhauling of the entire Criminal Justice Delivery System and to bring it in harmony with the contemporary times. The introduction of a fresh Criminal Legal System, which furthers the reforms to the present day Criminal Justice Delivery System, was in the conduit for a long time.

The Parliamentary Standing Committee in its 111^th and 128^th Reports had also highlighted the need for reforms in Criminal Laws. Accordingly, a Committee was instituted by the Ministry of Home Affairs by a Notification dated 4.05.2020. This Committee comprised of the following Members –

i) (Dr) Ranbir Singh (Former Chancellor NLU(Delhi)) – Head of the Committee

ii) S.Bajpai – Registrar NLU(Delhi)

iii) Balraj Chauhan – First Vice-Chancellor (NLU Jabalpur)

iv) Mahesh Jethmalani – Senior Advocate (Supreme Court)

v) P. Thareja – Former District and Session Judge (Delhi)

Last year on 27.02.2022, the Committee submitted its Recommendations on the Criminal Reforms to be made, in pursuance of which the three Bills as mentioned below were introduced in Lok Sabha by the Union Home Minister Mr. Amit Shah :

(1) Bharatiya Nyay Sanhita Bill 2023 (BNS)– replacing the Indian Penal Code, 1860 (IPC)

(2) Bharatiya Sakshya Bill 2023 (BSB) – replacing the Indian Evidence Act, 1872 (IEA)

(3) Bharatiya Nagrik Suraksha Sanhita Bill 2023 (BNSS) – replacing the Code of Criminal Procedure, 1973 (CrPC)

The proposed legislations aim to provide for a speedier delivery of justice, by enhancing the integrity of evidence, providing a higher conviction ratio and lowering the huge pendency of cases in Criminal Courts. The Bills aim to achieve this objective through a variety of new provisions and amendments (referred to as “Clauses” in the Bills).

The Legislations

(1) Bharatiya Nyay Sanhita Bill 2023 (BNSB)

The Bharatiya Nyay Sanhita Bill 2023 (BNSB) proposes to repeal 22 Provisions of IPC, and has provided changes to 175 existing sections, and has introduced nine fresh Clauses. This Bill incorporates a total of 356 Clauses, as opposed to the previous 511 provisions in IPC.

(2) Bharatiya Sakshya Bill 2023 (BSB)

The Bharatiya Sakshya Bill 2023 (BSB) proposes to repeal 5 existing provisions of the Evidence Act. It has also proposed changes to 23 existing provisions and introduced a new one. It has a total of 170 Clauses.

(3) Bharatiya Nagrik Suraksha Sanhita Bill 2023 (BNSS)

The Bharatatiya Nagrik Suraksha Sanhita Bill 2023 (BNSS) proposes to repeal 9 Provisions of the CrPC, and has proposed changes to 107 existing sections. The Bill contains 533 Clauses raising the count from the previous 484 sections of CrPC.

Features of the proposed legislations

The integral part of the proposed legislations is how the newly introduced Bills have put forth definitions relating to some of the most dreaded crimes such as mob lynching and terrorism, thereby, providing a mechanism to effectively deal with criminals.

Furthermore, to save the time of the court and to escape unforeseen events and circumstances, the proposed BSB Bill permits witnesses, accused, experts and victims to appear via electronic means which makes the process of appearance easy and convenient. It also gives electronic evidence the same legal value as documentary evidence. Also, Clauses pertaining to the delivery of justice within a maximum period of 3 years, promotes the aim of speedier justice.

New Offences Introduced in Bharatiya Nyay Sanhita (Old, IPC)

I) Organised Crime

II) Terrorism Offences

III) Endangering Sovereignty

IV) Mob Lynching

V) Sexual intercourse by deceitful means upon a false promise to marry.

VI) This Bill aims to decongest jails by releasing convicts who have served half their sentences and fixing the accountability of police officers for arrests.

Key features of the New Bills

i) The time-bound trials and the introduction of summary trials as a mandate for petty crimes. Further, Community Service for petty offences has been introduced in the present BNSS Bill (Old CrPC).

ii) The provision for recording the statement of a victim of sexual violence at her house by a Magistrate (who shall be a woman) has been introduced in the present BNSS Bill (Old CrPC).

iii) Further, video-graphing at the time of raids by police as well as during the process of investigation has also been introduced in the present BNSS Bill (Old CrPC). Video report of search and seizure is made compulsory and charge sheet may not be accepted without it.

iv) Sedition law which was earlier given under Section 124A IPC has been repealed and Offences against the State have been incorporated under Part VII of Bharatiya Nyay Sanhita (Old, IPC), whereunder Clause 150 criminalises “acts endangering sovereignty, unity and integrity of India” including financial transaction and electronic communication which targets speech, writing or any form of separatist and subversive activities and the said offence is punishable with 7 years of imprisonment extending further to life imprisonment.

v) The trial can proceed even if the accused isn’t present ( in absentia) in cases of absconding criminals such as underworld Don Dawood Ibrahim, under Clause 356 of BNSS (Old CrPC).

vi) Clause 187(2) of the BNSS (Old CrPC) which is the amended provision of Section 167(2) of CrPC, provides that a 15-day police custody can be sought on a whole, or in parts, at any time (i) during the initial 60 days (if the offence is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years) or (ii) during the initial 40 days (in respect of other offences).

vii) Also, with an eye on speedy investigation and trial, BNSS provides that the police cannot take an indefinite plea that the investigation is on, and the police shall have to file the charge sheet within 90 days. An extension of another 90 days is possible only after seeking permission from the trial court.

viii) Regarding the sanction to prosecute a government official in criminal cases, the new Bill proposes that, “A decision to grant or reject sanction to prosecute a public servant must be reached by the government within 120 days of receiving a request. If the government fails to do so, the sanction will be deemed to have been accorded.”

ix) Furthermore, summons, warrants, documents, police reports, statements of evidence can be provided to the courts in electronic form also, thereby, reducing the time consumed in such official works.

Conclusion

In the opinion of the experts the stagnant laws and regressive approach of the present laws which age back to the British-era, lacked technical and scientific methods,thereby, putting limitations, and creating certain lacunae in the Criminal Justice Delivery System. Therefore, a much more comprehensive approach rather than a piecemeal reform stood as the need of the hour.

A lot of important issues have been taken into account, which were in the pipeline for a long-time, such as jail reforms, and the right of the victims of rape and sexual harassment.

Also introduction of summary trial for petty offences, community service for specific crimes, mandating a time bound completion of investigation by Police Officers in a maximum of 180 days, and the validation of electronic evidence on the same footing as that of the documentary evidence for the first time are major highlights of the introduced Bills

It could safely be put forward that, the proposed legislations exhibit chances of a well proportionate impact upon the present Criminal Justice Delivery System, eventually promising that, the process can be made better in conformity with the Constitutional values of India.

Shaurya Mani Pandey

Associate,

The Indian Lawyer