Welcome to Legal Khabar, in this Article, we will understand the key changes made in New Criminal Laws which is introduced by the Indian Parliament i.e, Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam in 2023, replacing the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act. The new laws will come into effect from July 1, 2024.
President of India, gave her assent for implementation of the Bills i.e., Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam, on 25th December, 2024. All the three bills are going to replace the old criminal laws, IPC, Crpc, Evidence Act.
As these Bills were proposed in the parliament, questions were raised what was the need of it?, why it is being done?
Let's understand why the changes were made and new criminal laws were introduced.
Take an Instance, do you think a 25 year old car with some of it's parts missing and damaged, can get into a race with a car, newly manufactured, with all modern features and powerful engine?, It's kind of impossible to win the race, similarly, we have to think how these colonial made laws are going to fit in current socio-judicial system of India, our society is changing, mindset of people is changing day by day, course of business is changing and tech & AI is evolving all around the globe, similarly the methodology of crime is also changing, new methods have been adopted by the ill minded people to commit crime, the biggest example is the Online Fraud, Scam - Cyber Crime, who would have thought while making the Penal Laws, that something like cyber crime will take place in society and it will become biggest problem in the society, not only cyber crime but now various crimes are taking place in society like, Mob-crime, Snatching, etc.., which was not defined in the old criminal laws, hence there was dire need of bringing the new codified criminal laws, contains the provisions which should align with modern problems.
There is no doubt the colonial made criminal laws were effective, impactful for the judicial system of India, but it's compatibility was a great question, as all the three bodies, Ministry of Home affairs, Ministry of Law and Justice and Judicial Bodies of India, had the thought for replacement of old criminal laws with new criminal laws, which should be well codified, consist of all the provisions and cover all the major crimes of the modern society as well, hence the new criminal laws were introduced with all the major changes which we will discuss below.
Old Criminal Laws:
Indian Penal Code, 1860 - Defines, what is punishment and what constitutes crime.Code of Criminal Procedure,1973 - Defines, Provisions of Bail, Arrest, investigation, procedures of Trail etc..
Evidence Act,1872 - Constitutes the provisions of Admissibility of evidence, Burden of Proof etc.
Now Let us understand the major changes introduced in Bhartiya Nyaya Sanhita,2023
1) The provisions are arranged in very systematic and organized manner. Instead of separate sections for definitions and punishment as provided in the Indian Penal Code, 1860, new bill has merged all the sections together.2) Definitions are present in alphabetical order and instead of having separate sections for each definition the definitions in the BNS are present as subsections of section two of the Act.
3) The scope and nature of the type of community services are not described in the BNS and is left at the discretion of judges. Community service has been made in punishments as the 6th punishment.
Further, The Bharatiya Nyaya Sanhita (BNS) does not incorporate the recommendations from the Justice Verma Committee of 2013, which suggested making rape laws gender-neutral and criminalizing marital rape. The committee had recommended removing the exception for marital rape in the Indian Penal Code (IPC). According to Ms. Patten's report on sexual violence in conflict, there has been a notable increase in cases, with 3,293 verified incidents by the UN, 97% of which involved women and girls, and 83 cases involving men and boys, mainly in detention centers. The new act still does not reflect the Justice Verma Committee's call for gender-neutral rape laws. Furthermore, the BNS does not include Section 377 of the IPC, thus providing no legal remedy for men in cases of rape.
The BNS changes the minimum age of criminal responsibility from 7 to 12 years, ignoring the UN's recommendation to set it at 14 years or older. It also retains provisions for solitary confinement, which the Supreme Court had previously ruled as violating fundamental rights in the case of Sunil Batra vs Delhi Administration.
Additionally, the BNS does not establish special courts for terrorism cases, which will instead be handled by regular sessions courts, unlike under the Unlawful Activities (Prevention) Act (UAPA) where such cases are tried in special courts. The Standing Committee had recommended special procedures for organized crime under BNSS.
The BNS retains a clause from the IPC stating that acts committed by a person with an unsound mind are not offenses, but it updates the term "unsound mind" to "mental illness" as defined in the Mental Healthcare Act of 2017. The BNS does not explicitly include the word "sedition," but the BNSS refers to "seditious matters" and uses the term "subversive activities" without defining it.
In conclusion, the Indian Penal Code, originally drafted by Thomas Babington Macaulay in 1860 based on J.S. Mill's principles and Bentham's Utilitarian theory, has long needed reform as recommended by various Law Commission and Parliamentary Standing Committee reports. The Bharatiya Nyaya Sanhita, 2023, has introduced several changes by adding new provisions and removing old ones. New offenses such as terrorist acts, organized crimes, mob lynching, and fake news have been included, while provisions for unnatural offenses, thuggery, adultery, and sedition have been removed. The total number of sections and chapters has been reduced from 511 to 358 and from 23 to 20, respectively. Despite these changes, the BNS still lacks gender-neutral rape laws and does not criminalize marital rape, failing to consider marriage as irrevocable consent to sexual acts. The scope of community service under the BNS is also not clearly defined.
A Public Interest Litigation (PIL) has been filed by Advocate Vishal Tiwari seeking a stay on the implementation of the three new criminal laws and calling for an expert committee led by a former Supreme Court judge to assess their practical implementation. The PIL argues that the bills were passed without sufficient parliamentary debate and have various irregularities and imbalances.
Key Changes Introduced by the Bharatiya Sakshya Adhiniyam, 2023 (BSA):
- Introduction and Implementation:
- The BSA replaces the Indian Evidence Act, 1872 (IEA).
- Published on 25 December 2023, it is expected to come into force later in 2024 due to administrative reasons.
- Electronic Evidence:
- Inclusion of Electronic Statements:
- Broadened definition of ‘evidence’ to include statements given electronically.
- Enables witnesses, accused persons, experts, and victims to appear via electronic means.
- Electronic Records as Documentary Evidence:
- Digital records (emails, server logs, digital documents) are recognized as ‘documentary evidence’.
- These records hold the same legal validity as traditional documents.
- Classified as ‘primary evidence’ under Section 57, but still require a ‘certificate of authentication’.
- Judicial Notice of International Treaties:
- Courts must take judicial notice of international treaties, agreements, and conventions involving India.
- This ensures recognition of international principles, benefiting international businesses and foreign dealings.
- Meaning of “Accomplice”:
- BSA requires that a conviction based on an accomplice’s testimony must be corroborated, unlike the IEA which allowed uncorroborated testimony.
- Confessions and Coercion:
- Adds ‘coercion’ as a factor that can invalidate a confession, alongside inducement, threat, or promise.
- Non-Production of Certain Documents:
- Courts cannot demand the production of communications between Ministers and the President of India.
- This contrasts with IEA and raises concerns about potential abuse of power.
- Removal of Colonial Terminology:
- Deletes references to colonial terms such as ‘public Acts passed by the Parliament of the United Kingdom’ and ‘her Majesty’s Government’.
- Replaces outdated terms like ‘Vakil’, ‘Pleader’, and ‘Barrister’ with ‘Advocate’.
Conclusion:
- Core Principles Retained:
- Fundamental principles like burden of proof, admissions, and relevancy of facts remain the same.
- Emphasis on Electronic Records:
- Significant focus on integrating electronic records into legal processes.
- Challenges and Adaptation:
- The effectiveness depends on how quickly and efficiently courts, lawyers, and other stakeholders adapt to the changes.
- Concerns:
- Potential for abuse of power due to the restriction on producing communications between Ministers and the President.
- Positive Steps:
- Judicial recognition of international conventions.
- Inclusion of ‘coercion’ to protect accused persons.
- Elimination of outdated colonial terms.
Major Changes Introduced in the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS):
- Approval and Enactment:- BNSS, replacing the Criminal Procedure Code (CrPC) of 1973, was passed by Lok Sabha on 20th December 2023 and by Rajya Sabha on 21st December 2023. The President gave her assent on 25th December 2023.
- Detention of Undertrials:
- Previously, under the CrPC, accused individuals could be released on personal bond if they had spent half the maximum imprisonment time in detention, except for those facing the death penalty.
- BNSS adds that this rule also excludes those facing life imprisonment or with multiple pending charges.
- Medical Examination:
- Any police officer can request a medical examination of the accused in certain cases, including rape.
- Earlier, this was allowed only by a registered medical practitioner at the request of at least a sub-inspector.
- Forensic Investigation:
- Forensic investigation is mandatory for offenses punishable with at least seven years of imprisonment.
- Forensic experts must visit crime scenes, collect evidence, and record the process electronically.
- If a state lacks forensic facilities, it must use facilities in another state.
- Signatures and Finger Impressions:
- Magistrates can now order anyone to provide specimen signatures, handwriting, finger impressions, and voice samples, even if the person hasn't been arrested.
- Timelines for Procedures:
- Medical practitioners must submit rape examination reports to the investigating officer within seven days.
- Judgements must be given within 30 days of completing arguments (extendable to 45 days).
- Investigating officers must inform victims of investigation progress within 90 days.
- Sessions courts must frame charges within 60 days from the first hearing.
- Hierarchy of Courts:
- BNSS removes the classification of metropolitan areas and Metropolitan Magistrates, which the CrPC allowed for cities with populations over one million.
- Use of Handcuffs:
- BNSS permits handcuffing in cases like organized crime, contradicting Supreme Court directives.
- Police Custody:
- Allows up to 15 days of police custody, authorized in parts during the initial 40 or 60 days of judicial custody. This can result in denied bail for the entire period if the 15 days are not used up.
- Bail:
- The CrPC allowed bail for those detained for half the maximum imprisonment time.
- BNSS denies this for those facing multiple charges, limiting bail opportunities as many cases involve multiple sections.
- Terminology:
- Updates outdated terms with more user-friendly language, reflecting a more humane approach.
These were the key changes and analysis of all the three new criminal laws, which will be enforced on 1st of July 2024.
To understand the new provisions of these laws, kindly visit: Legalkhabar.online
Abhay Yadav
Noida
