RAJU G. MENDEZ
The writer argues that the new criminal laws intended to replace India’s colonial-era statutes are largely superficial, merely renumbering sections without substantial improvements. Critics believe this overhaul will create practical challenges for legal practitioners and fail to modernize the system effectively
July 1, 2024, dawned with the historical milestone of the advent of new criminal laws, ushering in widespread changes in the justice system. The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) were enacted, seriously considering the dire need for a paradigm shift to address current social realities and modern-day crimes. These laws replaced the British-era Indian Penal Code, Code of Criminal Procedure, and the Indian Evidence Act.
Key Changes Under the New Laws
Three new criminal laws came into effect, bringing far-reaching changes to India’s criminal justice system. Fresh FIRs will now be registered under the BNS, while cases filed earlier will continue under the old laws until final disposal. Significant changes include provisions such as Zero FIR, online registration of police complaints, summonses via electronic modes like SMS, and videography of crime scenes for all heinous crimes, which are now mandatory.
Emphasis on Social Justice and Constitutional Alignment
The new laws prioritize social justice over colonial-era penal actions. They aim to address prevailing social realities and crimes and facilitate effective mechanisms for speedy remedies and disposals, aligning with constitutional ideals. Visionaries of the laws emphasize that this transition ends colonial-era criminal justice laws, replacing them with laws made by Indians, for Indians, and enacted by an Indian Parliament.
Moreover, the overhaul goes beyond nomenclature, aiming to align the core principles of the laws with Indian values. Justice under these laws will resonate with Indian ethos, ensuring political, economic, and social justice, equally encompassing both victims and culprits to resolve complaints. Judgments in criminal cases must now be delivered within 45 days of trial completion, with charges framed within 60 days of the first hearing, a key feature of these laws. For instance, rape victims’ statements will be recorded by a woman police officer in the presence of a guardian or relative, with medical reports required within seven days.
Organized crimes and acts of terrorism are now defined, sedition replaced with treason, and video recording of all searches and seizures is mandated. A new chapter specifically addresses crimes against women and children, making buying and selling of any child a heinous crime, with provisions for a death sentence or life imprisonment for gang rape of a minor. Offenses against women, children, murder, and offenses against the State are prioritized under the new law.
The new laws merge and simplify overlapping sections, reducing the total sections to 358 from the 511 in the Indian Penal Code (IPC). For example, scattered definitions from sections 6 to 52 are now consolidated into one section. Eighteen sections have been repealed, and four relating to weights and measures are now covered under the Legal Metrology Act, 2009. Incidents such as false promises of marriage, gang rape of minors, mob lynching, and chain snatching, previously lacking specific provisions in the current Indian Penal Code, are now addressed.
Procedural Improvements and Timely Justice
Reporting incidents electronically enables quicker and easier reporting, facilitating prompt police action without physical visits to police stations. Jurisdictional barriers are removed, allowing FIRs to be filed at any police station, regardless of jurisdiction, ensuring immediate legal proceedings and reporting of offenses.
To ensure prompt support and assistance in the event of an arrest, the individual has the right to inform a person of his choice about his or her situation. Besides, arrest details will now be prominently displayed within police stations and district headquarters, allowing families and friends of the arrested person easy access to important information.
To strengthen cases and investigations, it has become mandatory for forensic experts to visit crime scenes for serious offenses and collect evidence. To keep the victims updated on the ongoing legal process, and enhance transparency, and build trust, women are entitled to know the progress of their case within 90 days. Given prioritising the well-being and recovery of victims of crimes against women and children, during challenging traumatic times, immediate essential medical treatment free of cost, has been guaranteed
Summonses can now be served electronically, expediting legal processes, reducing paperwork, and ensuring efficient communication among all parties involved. For certain offenses against women, statements of the victim are to be recorded, as far as practicable, by a woman magistrate and, in her absence, by a male magistrate in the presence of a woman to ensure sensitivity and fairness, creating a supportive environment for victims.
Enhanced Support for Victims
Both the accused and the victim are entitled to receive copies of the FIR, police report, charge sheet, statements, confessions, and other documents within 14 days. Being restricted to a maximum of two adjournments to avoid unnecessary delays in case hearings, ensures the timely delivery of justice. To heighten the credibility and effectiveness of legal proceedings, all state governments need to implement witness protection schemes to guarantee a safe and cooperative approach for the witnesses. The definition of “gender” has been made more inclusive by adding transgender individuals too into its scope.
By conducting all legal proceedings electronically, the new laws offer convenience to victims, witnesses, and accused, thereby streamlining and expediting the entire legal process. Women, persons below 15 years, persons above 60 years, and those with disabilities or acute illnesses are exempt from attending police stations and can receive police assistance at their place of residence
To shed the vestiges of India’s colonial past, new laws have been enacted to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act. The Central government initiated this attempt, aiming at a paradigm shift in the country’s criminal laws. The government intends to replace the IPC with the Bharatiya Nyaya Sanhita, 2023, the CrPC with the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Evidence Act with the Bharatiya Sakshya Bill, 2023. As usual, criticism from the opposition was voiced. Still, the three bills were introduced in the Lok Sabha on August 11 and have now been sent to a parliamentary standing committee for further review and approval.
Background and Formulation
Even though Union Home Minister Amit Shah revealed that the formulation of the three laws involved extensive deliberations with various stakeholders over the last four years, it did not garner much public attention. Shortly after the Committee for Reforms in Criminal Laws was set up at the National Law University, Delhi in 2020 under the chairmanship of then Vice-Chancellor Prof. Ranbir Singh, stakeholders in the criminal justice system raised concerns over the constitution and functioning of the body. The three new draft statutes have seen the light of day after four years.
Criticisms and Concerns
The legal fraternity still casts doubts on these proposed changes, which are described by visionaries as a strident step forward to depart totally from colonial-era laws. After putting their heads together, noted criminal lawyers and former judges scrutinized the motive behind it, aptly describing it as “OLD WINE IN A NEW BOTTLE.” According to Senior Advocate Rebecca John, the changes may cause more harm than good. Essentially, the alterations merely renumber the sections, which could pose unnecessary challenges for both legal practitioners and judges in practice and execution. Over the past several decades, being accustomed to a particular structure, this shift might create difficulties in interpretation and application. If much of the substance is retained while only changing the section placements (e.g., Section 302 is now Section 101), it is time-consuming to recall and can’t be considered a creative exercise for excellence.
Incomprehensibility and Practical Issues
Another downside is that the new provisions are mostly incomprehensible. For example, if a legal practitioner looks at the explanation to Section 150, which is the modified version of Sedition, they might find it unintelligible. Additionally, mob lynching has been made punishable under the new law, equivalent to murder, with penalties of death, life imprisonment, or imprisonment for seven years. This is while murder is also punishable by death or life imprisonment. The rationale behind this seems dubious, and the intention of the drafting committee does not appear directed toward effectively punishing crimes of this nature.
Core Structure and Theoretical Framework
Apart from certain intriguing modifications, the core of the Code remains largely intact. Theoretically, a distinct structure should have been framed, merging procedural, evidentiary, and substantive statutes into separate comprehensive codes to facilitate the legal process for practitioners, judges, and investigators, eliminating the hassles faced by investigators rather than detouring along numerous matters and issues each time an investigation commences. When dealing with multiple offenses, the disparity between corruption in the new law and the Prevention of Corruption Act followed before creates chaos. Organized crime in the new law statutes being MCOCA, as terrorism was UAPA.
Need for Meticulous Inspection
Ahead of finalizing the enactment of these laws, given that they will impact a vast majority of individuals at various points in their lives, meticulous inspection by senior lawyers and legal experts is necessary. The most significant change is the introduction of community service. Further emphasis is needed on the Evidence Act, which presents a reiteration of the existing structure with an enhanced focus on electronic evidence. Interestingly, a closer comparison reveals that it essentially incorporates certain evidence principles from Supreme Court judgments, making it a copycat.
Criminal law demands certainty and ensuing interpretation, which is a great virtue unfortunately not found in the new laws. What Macaulay and Stephen formulated and interpreted way back in the 19th century was an edifice of transparency and understanding. These peculiarities should have remained intact with suitable amendments whenever necessary. Criminal procedure can and should be modernized as was done in 1973. It is also learned that the revamping has been carried out by a group of hired mediocre part-time academics functioning as a committee. In evaluating the drafts presented before Parliament, they have not been finalized even to rectify errors in grammar, syntax, and logic, and some sections remain incomplete. If changing the nomenclature was the true purpose of decolonizing the law, the government should have refrained from committing the same mistake. A culinary metaphor would suffice: someone set out to cook a new omelet but ended up with a mashed-up scrambled egg, which they are still serving at the table.
(mendezraju99@gmail.com)
