Nature of crimes and how they are committed have changed along with society. For instance, how many people knew about cybercrime a century ago? With this in mind, our government introduced three new criminal laws to replace the outdated ones: the Bharatiya Nyaya Sanhita bill replaced the Indian penal code of 1860, the Bharatiya Nagarik Suraksha bill replaced the Code of Criminal Procedure of 1973, and the Bharatiya Sakshya bill replaced the Indian Evidence Act of 1872. The old criminal law was created by British colonialists whose primary goal was to plunder Indian resources. The British crown was mentioned in the old law in almost 400 different places. The old criminal laws have a complex structure and are not gender neutral, these are some of the main reason because of which our government introduced new criminal laws.
The Indian Criminal System is all revamped now with the passing of the Bharatiya Sakshya (Second) Bill, 2023, Bharatiya Nyaya ( Second) Sanhita 2023, and Bharatiya Nagarik Suraksha (Second) Sanhita 2023. All three Criminal acts, was passed by Rajya Sabha on 21-12-2023, and passed by Lok Sabha on 20-12-2023, at the time almost 141 Member of Parliament were suspended from both the houses.
Previously, the Parliamentary Standing Committee, led by Rajya Sabha member Brij Lal, recommended revisions and adjustments to the three criminal legislation that the Central Government had originally proposed. As a result, the second version of the bills was introduced.
When passing in the Rajya Sabha, Chairman Jagdeep Dhankar said, “These three bills which create history have been passed unanimously. They have unshackled the colonial legacy of our criminal jurisprudence that was hurtful to citizens of the country and favoured alien rulers.”
Finally, they became act on 23-12-2023.[1]
PREVIOUS CRIMINAL LAWS
Indian Penal Code, 1860
The Indian Penal Code (IPC) is the primary criminal legislation that defines crimes and lays out penalties for nearly all criminal offences and actionable wrongs. This Code was basically drafted in the year 1850 Under British Raj and it was presented in front of the Legislative Council in the 1856, and it finally came into effect on 1st January 1862.[2]
IPC covers offences like Crimes against the body like Murder, Homicide, Kidnapping, culpable homicide etc., and Crimes against property like theft, dacoity etc., Economic crimes as well come under this.
Criminal Procedure Code, 1973
This Code basically explains the procedures for punishments under the penal laws. It need to read along with the Indian Penal Code, 1862 and the Indian Evidence Act, 1872, and this law was enacted on 25th January 1974 .The Indian Penal Code is a substantive law but the Criminal Procedure Code is procedural law.[3]
Indian Evidence Act, 1872
The Indian Evidence Act is mainly based upon the work of Sir James Fitzjames Stephen.To codify, define, and amend the evidence law, the Indian Evidence Act, 1872 was passed on March 15, 1872, and went into effect on September 1st, 1872. With the exception of courts martial under the Army Act, Naval Discipline Act, and Air Force Act, all judicial processes and courts martial are covered by the Act. Although it functions primarily as procedural law, the law of evidence also occasionally functions as substantive law.[4]
The Act basically allows evidence to be presented in any lawsuit or legal proceeding about the presence or nonexistence of all relevant facts as well as other facts deemed significant.
MAJOR LOOPHOLES IN THE OLD CRIMINAL LAWS
During the Introduction of these bills, Home minister Amit Shah stressed the shift away from Rajdroha to deshdroha in the new version of penal code by saying that- “ While the Indian Penal Code penalises works against the government, the Bharatiya Nyaya Sanhita will only punish those who work against the nation. Such people must and will go to jail and be punished.
As we already talked about in Introduction of the article that with evolvement of society, the laws need to evolve as well, amended laws also talks about digitisation as the old ones were of the time when no one had knowledge of anything related to digitisation, and basically the old laws were not citizen centric whereas they were government centric, the needed balance between the powers of law enforcement and the rights of citizens was not there. These new acts are revolving around the justice and reformation whereas the old ones was punishment and deterrence centred. [5]
If we thoroughly read the old acts, we’ll get to know that how these acts were a manifestation of the will of the dominant class, because they were made by the dominant class of colonial India, Britishers and they were determined by economic and political motives.The criminal justice system’s continued relevance has been called into serious doubt recently. The fundamentals of criminal law and penology seem to be in jeopardy in Re Sreerangyee case[6].
The old Criminal laws, were used to give priority to the protection of treasury, protection of railways and the safety of the British Crown, most of important offences like murder, rape, defamation and serious offences used to be in the last in the IPC, crimes against women and children were not given priority as well. In the new Criminal law, priority has been given ti crimes related to human and body, and then the cases related to terrorism was not given priority almost one lakh people every year have been killed in the terror attacks. So, they introduced separate category in the general crime law.
NEED FOR THE AMENDED CRIMINAL ACTS.
Old Indian criminal law, being a British gift was founded on the foundation of colonial jurisprudence. These criminal laws were pro-elitist and establishment oriented because British made these just to punish the downtrodden of the Indian society at the time of colonialism and those downtrodden were Indians. It seems to be a little antagonistic toward the underprivileged and weaker segments of society including women, children, groups of people who are physically, economically, or intellectually challenged, convicts, people who practice religion or politics differently, those who live in rural areas of the country, victims of crime, and the like. In spite of constitutional protections to the contrary, it functions in an oppressive manner against them.[7]
India’s Justice system is based on adversarial common law legal system, and this system is known for being tiring process, notorious and for being time-consuming, costly, and ultimately unfavourable and also because majority if Indian population is middle class, for them the expense of the legal system is very high, and because of the [8]enigmatic nature of the legal ethos, the impoverished are unable to enter the temple of justice.
The proposed statutes, which are in line with the evolving needs of contemporary India, place more emphasis on justice and reformation than the punishment and deterrent that characterise criminal laws from the British era. British era criminal law, were made putting crown in centre at that time but these new laws are an attempted to make the citizen the centre of the criminal Justice system.
INTRODUCTION OF AMENDED CRIMINAL LAWS
Amended Criminal laws, The Bharatiya Nyaya Sanhita, 2023 replaced Indian Penal Code, 1870, The Bharatiya Nagarik Suraksha Sanhita, 2023 replaced The Code of Criminal Procedure, 1973 and The Bharatiya Sakshya Adhiniyam, 2023 replaced the Indian Evidence Act, 1872 got the President’s assent on the 25th December, 2023 and from then on published in the Gazette of India for general information[9].
Now the most basic difference between the old criminal law and amended ones are the number of sections, first we have Bharatiya Nyaya Sanhita, 2023 which replaced Indian Penal Code, 1870, so the old version of act used to had 356 sections and the new version has 358 sections, for which they proposed to repealed 22 Sections and add 8 new sections. One of major change in the BNS is that they removed the Sedition as an offence, but what actually home ministry did? They merely removed the word “Sedition” from the law and replaced it with more vague and broad nomenclature in the BNS, as Clause 150 of BNS titled as ‘Acts endangering the sovereignty unity and integrity of India, including use of electronic communications to excite anger or armed rebellion, subversive activities, secession, or to endanger India’s unity, sovereignty and integrity’ now the worrying part here is the use of addition of electronic media as well, and also the mandate of imprisonment unlike the old version where the punishment was in some cases limited to only fine[10]. In the new version and add terrorism as an offence and they added community service as a form of punishment and as we know Mob lynching become so common nowadays, so to protect that they added Mob lynching as an offence and Some of the Organised crimes, for example kidnapping, contract killing, economical scams, cybercrime added as an offences.[11]
Bharatiya Nagarik Suraksha Sanhita, 2023 replaced the Code of Criminal Procedure, In the older version there were 484 sections which now increased to 533 sections, 10 sections got repealed and they added 9 new provisions, allowed police officers to use the handcuffs for cases, police officer can request for medical examination of the accuses if he thinks it is going to help in investigation, even in rape cases. The magistrate can order for finger prints as well as voice samples of any person and fifteen days in police captivity. with partial authorisation for the first forty, sixty, or ninety days of court custody[12]. The CrPC did not specify a deadline for filing a FIR. However, BNSS specifies certain timelines. Within three days after filing a complaint, a FIR must be filed. Within ninety days of the initial chargesheet being filed, additional investigation must be finished. The Magistrate must decide within 14 days whether to take cognizance of the chargesheet, and the Court’s permission is required to proceed with additional inquiry. There is now a deadline for sending medical reports on victims of sexual assault. e-FIR: New provisions for filing FIRs electronically. Women who might be reluctant to report sexual violence to the police will especially benefit from this, as video recording is required during proceedings[13]. As we know nowadays lots of crime happens online, or from the help of online resources so that’s how our society is evolving in terms of crime as well so, to handle smart problems we need smart solutions that’s why, Location-based evidence, communications, websites, laptops, and smartphones are all included in the definition of proof.[14]
Bharatiya Sakshya Act, 2023 replaced the Indian Evidence Act, 1872, the old version of the act used to had 167 sections and the newer version has 170 sections, the major change in this act was the introduction of electronic oral evidence, and you need Comprehensive certificate for submitting electronic evidence, from now electronic records will classify as documents and includes information stored in semiconductor memory or any communication devices[15]. The Bharatiya Sakshya Adhiniyam’s Sections 62 and 63 offer a thorough framework for the acceptance of electronic data as evidence. The conditions for presenting a certificate to verify the validity of an electronic record are described in this section. The person in charge of the computer or communication equipment must sign such a certificate. Moreover, an additional certificate included in the schedule to BSA requires the signature of an expert, whose approval validates any claims made in the certificate. The certificate acts as evidence to support the claims it makes once it is signed.[16]
These new laws are gender neutral from perpetrators point of view as well, for example.,Outraging the Modesty of a woman, according to older version only man can commit this, but according to newer version both men and women can commit this, but it is still not gender neutral from victims angle, and they have provision of giving justice within 3 years of filing a case to deliver equitable justice and crimes like snatching, fake promises to marry, ATM theft, Ponzi scheme etc are recognised as well.
LOOPHOLES OF THE AMENDED CRIMINAL ACT
The first lacunae in these acts, is when Lok Sabha passed these bills, 97 opposition MPs were suspended at the time, from this we can say in the new acts, the representation of opposition MPs is less, and when they removed and introduced new section, first they removed the sedition as an offence but mere removal of word doesn’t mean removal of offence, after its removal they added the substitute offence “ Acts endangering unity, integrity and sovereignty of India” and added the electronic communication in this as well making it wider and the wording of the offence is very much vague and can the mere removal of British wording making these new versions any newer even, and is it really amount to authentic decolonisation. The maximum period of police custody allowed by general criminal law is increased by BNSS from 15 days to either 60 days or 90 days, depending on the type of offence[17]. Our existing legislation restricts police detention to the first fifteen days following an arrest. Exposure to police excesses is increased by the expansion under the proposed BNSS, in the future it can have significant impact on civil liberties. Maybe instead of making these acts people centric, they might be giving too much powers to police and because of the overcriminalistion, it is somehow giving unreasonable control to the state, BNS aligns the definition of “terrorist act” with Section 15 of the UAPA. Regarding the BNS’s applicability to terror offences under the UAPA, there is still uncertainty.[18]
These are some of the main gaps in the new Criminal Law version, but we have no idea how these laws will really be applied in society. They may be better than the old version, but not necessarily the best ones because justice is their main goal, or they may simply have minor wording changes and function similarly to the previous version.
CONCLUSION
The necessity of these changes is made clear by the way that crime is changing, technology is developing, and social standards are shifting. To effectively combat emerging types of criminal behaviour and protect individual rights, the legal system must change. A vital first step toward striking this equilibrium is the modifications.
The modified criminal code has several significant improvements that show a evolving approach towards society. These include updated definition of different criminal activities, increased penalties for certain acts, and an emphasis on prevention and rehabilitation. These modifications point to a move toward a more thorough and modern view of criminal justice. The successful execution of the modified criminal statute, cooperation between law enforcement and other stakeholders, and continual review to rectify any unintended consequences will ultimately determine its effectiveness. Legal institutions must adapt to the changing needs of society, and these modifications represent a step in the right direction toward a more flexible and fair criminal justice system. But only after implementing them we can know if these improvements and modifications are really worth it or they just modified it for namesake.
[1] Criminal law bill replacing IPC, Crpc and Evidence Act Receive Presidential consent, Livelaw.in ( 25 Dec, 2023, 7:04 pm), https://www.livelaw.in/top-stories/criminal-law-bills-ipc-crpc-evidence-act-presidential-assent-become-law-245322?infinitescroll=1.
[2] Ashwin, What is the difference between IPC and CrPC, enhelion ( August 1,2020), https://enhelion.com/blogs/2020/08/01/what-is-the-difference-between-ipc-and-crpc/.
[3] Ashwin, supra note 2
[4] Dr. S. Raja. Lakshmi, Law of Evidence, https://www.tndalu.ac.in/econtent/35_Law_of_Evidence.pdf.
[5] Awstika Das, Lok Sabha passes criminal law bills seeking to replace ipc, crpc and evidence act, livelaw,, (20 Dec 2023 4:58pm), https://www.livelaw.in/top-stories/lok-sabha-criminal-law-bills-ipc-crpc-evidence-act-bharatiya-nyaya-sanhita-nagaril-suraksha-sanhita-sakshya-bill-bns-bnss-bss-245023.
[6] K.D. Gaur, Poor Victim of Uses and Abuses of criminal law and process in India. Vol no. 35, Indian Law Institute, pp. 183-232( October-December 1993), https://www.jstor.org/stable/43953211.
[7] K.D. Gaur, supra note 5.
[8] K.D. Gaur, supra note 5.
[9] New Criminal law, bprd, https://bprd.nic.in/content/3761_1_NewCriminalLaws.aspx.
[10] Disha Verma, Radhika Roy, Reforming(or deforming?) the criminal justice system: A digital rights overview of the three new criminal law bills, internetfreedom (22 December, 2023), https://internetfreedom.in/three-new-criminal-law-bills/.
[11] Parliament passes new Criminal Law Bills to replace colonial-era IPC, Crpc, Evidence act; Read key highlights, scconline, https://www.scconline.com/Members/NoteView.aspx?enc=TlRYVC0wMDAwODY3OTc3JiYmJiY0MCYmJiYmU2VhcmNoJiYmJiZmdWxsc2NyZWVuJiYmJiZ0cnVlJiYmJiZCaGFyYXRpeWEgbnlheWEgc2FuaGl0YSYmJiYmQWxsV29yZHMmJiYmJmdTZWFyY2gmJiYmJmZhbHNl.
[12] Supra note 10.
[13] Highlights of Bills Replacing IPC, Crpc & Evidence Act as stated by home minister in lok sabha, livelaw news network ( 20 Dec 2023 7:19pm) https://www.livelaw.in/top-stories/highlights-of-bills-replacing-ipc-crpc-evidence-act-as-stated-by-home-minister-in-lok-sabha-245033?infinitescroll=1.
[14] Supra note 11.
[15] Supra note 10.
[16] Key highlights of the three new criminal laws introduced in 2023, scconline, https://www.scconline.com/Members/NoteView.aspx?enc=SlRYVC05MDAxODUxNzc0JiYmJiY0MCYmJiYmU2VhcmNoJiYmJiZmdWxsc2NyZWVuJiYmJiZ0cnVlJiYmJiZCaGFyYXRpeWEgbnlheWEgc2FuaGl0YSYmJiYmQWxsV29yZHMmJiYmJmdTZWFyY2gmJiYmJmZhbHNl.
[17] Anup Suredranath & Zeba Sikora, New criminal law bills endanger civil liberties, Indianexpress, December 14, 2023, https://indianexpress.com/article/opinion/columns/new-criminal-law-bills-endanger-civil-liberties-9067305/.
[18] Anup Surendranath & Zeba Sikora, supra note 16.
Author: Ishita Gupta
Juris Centre 