Juris Centre

Analysing India’s Recent Legislative Reforms in Criminal Law: A Comprehensive Overview

After 77 years of Indian independence, the question arises: what exactly does freedom signify? While China has also achieved freedom from foreign rule, and Afghanistan has been free from external interference for two years, is this the sole definition of freedom? However, this aspect represents only one facet of a nation’s independence from foreign influence. Independence from foreign rule is just one aspect; equally important is safeguarding the liberty and rights of individuals within a free country. India’s position at 112 out of 165 on the Human Freedom Index 2022 largely stems from the perception that it falls short in this second aspect. To address this, the government has introduced three new bills in Parliament aimed at enhancing the legal framework. The Bharatiya Nyaya Sanhita bill has superseded the Indian Penal Code of 1860, while the Bharatiya Nagarik Suraksha bill has replaced the Code of Criminal Procedure of 1973. Additionally, the Bharatiya Sakshya bill has taken the place of the Indian Evidence Act of 1872. These bills propose more than 313 amendments to existing criminal laws with the objective of ensuring justice within three years. The government claims that these laws are made to maintain control over India.

Time line of the three new criminals law bills to become an act:

The journey towards the enactment of the three new criminal law bills began in March 2020, with the formation of a panel by the central government tasked with suggesting reforms in the existing criminal laws.

By February 2022, the government actively sought public input and feedback, inviting suggestions from various stakeholders to inform the reform process.

These consultations had culminated in a robust collection of perspectives and recommendations, laying the groundwork for subsequent legislative action.

In August 2023, the Union Home Minister, Shri Amit Shah, introduced the three new criminal law bills in Parliament, signaling a pivotal moment in the legislative timeline. However, this was not without its twists and turns, as on December 12, 2023, the Union government made the decision to withdraw the previous versions of the bills that had been initially presented in August. These bills were then reintroduced, reflecting a commitment to thorough review and refinement in response to evolving needs and concerns.

Amidst a backdrop of parliamentary dynamics, including the suspension of over 140 opposition MPs from both houses, the Lok Sabha passed the three criminal law bills on December 20, 2023, followed swiftly by the Rajya Sabha’s approval on December 21, 2023. With the culmination of these legislative processes, the bills received the crucial assent of the President on December 25, 2023, officially transforming them into acts.

Finally, on February 24, 2023, the Union government announced the forthcoming implementation of the three new criminal law acts, scheduled to take effect from July 1, 2024. This marked the culmination of a comprehensive legislative journey aimed at modernizing India’s criminal justice system and ensuring its alignment with contemporary societal needs and values. [1]

The need to change the old criminal laws:

On December 20, during the passage of the criminal law bills in the Lok Sabha, Amit Shah emphasized the necessity of revising the existing criminal acts, highlighting that the new legislation would be rooted primarily in Indian perspectives rather than British influences. He emphasized that this shift would liberate people from the colonial mindset and its associated symbols. Shah further articulated that the original intent behind naming the Indian Penal Code (IPC) was to penalize Indians for offenses, rather than Britishers. Therefore, the proposed reforms aim to align the legal framework more closely with indigenous values and principles, thereby fostering a sense of empowerment and independence among the populace.[2] 

The primary rationale behind the overhaul of the old laws stems from their antiquated origins dating back to the 1860s. In today’s world, numerous advancements and developments have emerged, leading to significant changes in various aspects of life. This includes the evolution of criminal activities, which have taken on new forms and methods that were not envisioned or accounted for by the creators of the old laws. In recent years , India have recognized the third gender also which needed to be recoginzed by the new acts. The word “crown” is mentioned in these acts for more than 300 times even though we do not live in a colonial rule.

THE BHARATIYA NYAYA SANHITA, 2023:

The Indian Penal Code contained a total of 511 sections, whereas the new Bharatiya Nyaya Sanhita (BNS) act comprises only 358 sections. The new legislation imposes harsher penalties for numerous offenses and includes provisions specifically addressing terrorism. Listed below are some of the significant modifications:

  • Section 2 of the Bharatiya Nyaya Sanhita (BNS), 2023: provides definitions for key terms such as ‘child’ and ‘transgender’. The government made this decision in light of a significant ruling by the Supreme Court in Navtej Singh Johar v Union of India[3].Incorporating ‘transgender’ within the definition of ‘gender’ under section 2(10) of the new act aims to provide transgender individuals with various rights and establish a legal framework that is gender-neutral.. This move signifies a significant step towards inclusivity and equality under the law, aligning with the principles of justice and fairness upheld by the judiciary. Additionally, the definition of ‘document’ has been expanded to encompass ‘Electronic and digital records’, reflecting their increasing significance in modern society. Moreover, the definition of ‘movable property’ has been updated. This revision indicates a broadening of the scope to cover various types of movable assets. These changes demonstrate the legislation’s efforts to adapt to contemporary realities and ensure relevance in addressing evolving legal and societal needs.
  •  Section 4 : various penalties for offenders are outlined, with a notable addition being “community service,” a novel form of punishment in India. This initiative is driven by the need to alleviate the strain on the prison system, highlighted by a 2021 report indicating overcrowding with 554,000 inmates in facilities designed for 425,000. The introduction of community service aims to address this issue by providing an alternative to incarceration, particularly for minor offenses. This approach not only reduces the burden on jails but also ensures that individuals unable to pay fines are not unduly subjected to prolonged imprisonment.
  • Section 48: introduces a  provision titled ‘Abetment outside India for offense in India’. This implies that individuals plotting to commit offenses in India while residing in another country can be held liable under this legislation. This measure is likely prompted by recent events, such as the Khalistan movement orchestrated by pro-Khalistani groups in countries like the UK, Australia, and Canada last year.[4]
  • Section 63 “rape”: most of the provisions are similar the old act but only one change is made in the exception part this section. Section 63, excpetion 2 states that any sexual intercourse between husband and wife( wife being above 18 years of age) will not constitute rape. With this the age of wife consent was increased to 18 because before wife being age between 16 to 18 was not considered rape.
  • Section 67 :  introduced a new offence which states that a sexual intercourse by husband with his wife(without consent) during decree of separation will be punished for 2 years whichmay extend to 7. Years and fine.
  • Section 69 :  introduces a major offense, labelled as ‘sexual intercourse through deceptive means, etc.’ any individual who have sexual activity with another individual by giving false hope like marriage, employment, any other reason will be liable for 10 years imprisonment and fine
  • Section 70(2): increased the punishment of the offender by elimination age discrimination of the girl in a gang rape case. Now, any girl below 18 years of age is a victim in a gang rape then the offenders will be given death penalty or life imprisonment.
  • Section 103, “punishment of murder”: mob lynching is a new catgeory under sub section 2 which includes grounds like caste, community, sex, language and many more. “acting in concert” is a new word used in BNS which will be interpreted by the courts in the upcoming years.
  • Section 106: Doctors receive reduced punishment for causing death due to negligence. Sub section 2 introduces stringent punishment in hit and run cases.
  • Section 111: the word “orgainsed crime” is introduced in this act and well defined under this section. A group of offence like contract killing, robbery, cybercrimes and many more offence done by a group of people acting in concert for any financial or indirect benefit shall constitute organised crime.  The maximum punishment is death penalty.
  • . Section 113: offers an expanded interpretation of the “terrorist act” offense, contrasting with the preliminary iteration of the bill introduced in August. This introduction of punishing terrorists through this law marks a substantial change, especially considering that terrorism is not explicitly mentioned in the Indian Penal Code (IPC). Acts aimed at jeopardizing the “economic security of India,” including activities such as producing, smuggling, or circulating counterfeit currency, coins, or other materials, are now categorized as “terrorist acts.” Furthermore, any actions that pose a threat to the unity, integrity, sovereignty, or security of the nation, also fall within this classification. This expansion of the definition broadens the scope of what constitutes terrorism, encompassing not only traditional acts of violence but also those aimed at undermining the economic stability and social cohesion of the country.[5]
  • Section 152 : While sedition is not entirely eliminated from the BNS, it is presented in a more comprehensive form within this legislation, albeit without explicit labelling as sedition. Offenses falling within this category now carry a punishment ranging from a minimum of seven years to life imprisonment.
  • Section 304 : The Bharatiya Nyaya Sanhita  introduces a new offense termed “snatching,” akin to theft, involving the rapid, sudden, or forcible taking possession of movable property without consent. This addition aims to address and penalize such acts of theft more effectively within the legal framework. The offender will punished with imprisonment up to 3 years.

THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023:

The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces the Code of Criminal Procedure, leading to a significant increase in the statutory provisions from 484 to 533 sections. The primary objective is to expedite the delivery of justice to citizens of India. Listed below are some of the significant modifications:

  • Detention regulations concerning undertrial prisoners: It imposes limitations on the eligibility for release on personal bond, particularly for individuals accused of serious offenses such as those punishable by life imprisonment or those facing multiple charges. This adjustment aims to ensure greater scrutiny and stricter adherence to procedural requirements in cases where the accused are deemed to pose a significant risk to public safety or where the gravity of the alleged offenses warrants heightened caution in granting pre-trial release.
  • Implementation of strict timelines: medical assessments for rape victims must be furnished within a span of 7 days, court judgments must be rendered within 30 days (with the possibility of an extension to 45 days), updates on the progress of victims’ cases must be provided within 90 days, and the framing of charges must occur within 60 days from the commencement of the trial. These mandated timeframes underscore the legislation’s commitment to expediting legal processes, promoting judicial efficiency, and ensuring timely resolution of cases, thereby minimizing delays and backlog in the judicial system.
  • Modifications in FIR: The BNSS introduces the concept of “Zero FIR,” under section 173 of the BNSS 2023, allowing complainants to register a First Information Report (FIR) for a cognizable offense at any police station, regardless of where the offense occurred. The police station can then transfer the FIR to the appropriate jurisdiction after registration. This provision extends to all cognizable cases. Notably, “Zero FIR” was not previously mentioned in the Code of Criminal Procedure (CrPC) but was coined in a recent Supreme Court judgment. An E-FIR can be registered through electronic means. The FIR should be signed by the complainant and will be recorded within three days.
  • Preliminary enquiry. If an offence is above three years and below 7 years then a pre liminary inquiry should be done before registration of FIR.
  • Rights of arrested person. The scope of arrested person is increased under section 36 of BNSS, now the arrestee can even inform his legal counsel about his arrest whereas before only friend and relative were covered.
  • Electronic communication: One of the prominent features of the BNSS is the incorporation of electronic communication and audio-video electronic methods across various procedures outlined within the legislation. To facilitate this, the BNSS introduces new definitions elucidating terms like “audio-video electronic” and “electronic communication” under section 2(1)(a) and section 2(1)(i) respectively. Under section  Witness and accused summonses can now be served through electronic means, with the State Government tasked with formulating rules governing the manner and format of such communication. Additionally, under section 176 of BNSS the statements can be recorded via audio-video methods during investigations, and under section 231 of BNSS documents such as police reports can be transmitted electronically. Search and seizure activities are also subject to audio-video recording, with recordings promptly forwarded to the Magistrate. Furthermore, Section 530 of the BNSS allows for the conduct of trials, inquiries, and proceedings, including appellate processes, through electronic mode.
  • Metropolitan magistrates: The Indian court hierarchy is changed in the new act. Under Cr.P.C, metropolitan magistrate will be instituted if the city has a population of more than a million people. But, in BNSS the whole concept of metropolitan magistrate is deleted from the act.
  • Proceeds of crime: Section 107 of the BNSS empowers Magistrates to attach properties identified as proceeds of crime, allowing for direct attachment after hearing concerned parties, interim attachment without notice in certain circumstances, and subsequent distribution among affected parties. Section 86 enables Courts to request assistance from foreign authorities for attachment or forfeiture of properties belonging to proclaimed offenders, aimed at securing their presence or confiscating assets held abroad by fugitives evading legal processes. 
  •   Section 193 of BNSS: The victim should be informed by the police officer about the progress of investigation within 90 days.

BHARATIYA SAKSHYA ADHINIYAM

The enactment of Bharatiya Sakshya Adhiniyam replaced Indian evidence act.  IEA has a total of 167 section but there is a slight increase in section to 170 in BSA act. Few changes were made in BSA, a new section is added, 20 plus laws are modified and 5 other sections are repealed. Listed below are some of the significant modifications:

  • Section 2: Section 2 of the BSA, 2023, expanded the definition of “document” to include electronic and digital records, encompassing emails, server logs, computer or smartphone documents, messages, websites, locational evidence, and voice mail messages. Additionally, the BSA, 2023, permits electronic oral evidence, whereas the earlier Indian Evidence Act defined oral evidence as statements made by witnesses before the Court concerning matters of fact under inquiry.[6]
  • Section 22: A notable revision in the BSA involves amendments to Section 24 of the Evidence Act concerning confessions. While maintaining the original provision that deems confessions induced by inducement, threat, or promise irrelevant, Section 22 of the BSA introduces two new provisos allowing certain types of confessions to be considered relevant.
  • Section 23: Sections 25 and 26 of the Evidence Act, addressing confession to a police officer, are now consolidated under Section 23 of the Bill, accompanied by a new proviso. This provision permits information obtained in police custody to be utilized for investigative purposes or as corroborative evidence, regardless of whether it qualifies as a formal confession. This amendment broadens the scope of admissible evidence and enhances the investigatory capabilities of law enforcement agencies.
  • Section 39 and section 41 of BSA: section 39 of the BSA, mirroring Section 45 of the Evidence Act, has been amended to underscore the significance of expert opinions, notably those provided by examiners of electronic evidence pursuant to Section 79A of the IT Act, in relation to digitally stored information. Furthermore, Section 41 consolidates provisions concerning opinions on handwriting and digital signatures, formerly delineated in Sections 47 and 47A of the Evidence Act, without modification. Consequently, courts are now empowered to evaluate opinions offered by individuals knowledgeable in both handwriting analysis and digital signature authentication.
  • Section 57: It introduces new explanations regarding primary evidence. It acknowledges that documents produced via uniform processes like printing, lithography, or photography are primary evidence of their content. Electronic or digital records are also considered primary evidence, as are video recordings stored or transmitted electronically. Furthermore, electronic records stored in various computer storage spaces are each considered primary evidence.
  • Section 58: this section is related to the section 63 of Indian evidence act. The scope of secondary evidence is increased by adding many more categories into this which are oral admissions, written admissions, and evidence provided by individuals examining documents, all falling under the purview of secondary evidence.
  • Section 61: this section states that Electronic and digital records are considered just as important as paper records in the eyes of the law.

CONCLUSION:

India’s legal framework has undergone profound changes through the implementation of new criminal law statutes, marking pivotal milestones in the country’s jurisprudential evolution .Amidst shifting societal dynamics and technological advancements, the government has initiated extensive reforms to modernize and fortify the criminal justice system. These acts introduce novel concepts like “acting in concert,” “organized crime,” “snatching,” and “community service,” expanding the legal lexicon. The BSA broadens evidence inclusion by embracing electronic communication and digital records. Additionally, the BNSS facilitates swift justice through streamlined procedures, simplifying FIR filing and enabling electronic summons, ensuring efficiency and accessibility for all.

[1] New Criminal Laws Replacing IPC, CrPC & Evidence Act To Come Into Force From July 1, 2024,livelaw.in(24 Feb 2024 2:43 PM), https://www.livelaw.in/top-stories/new-criminal-laws-replacing-ipc-crpc-evidence-act-to-come-into-force-from-july-1-2024-250395?infinitescroll=1

[2]Abhinav Singh, Lower house of Indian parliament passes 3 criminal law bills, replacing IPC, CrPC, Evidence Act,wionews.com, (Dec 20, 2023, 07:52 PM), https://www.wionews.com/india-news/lok-sabha-passes-three-criminal-laws-replacing-ipc-crpc-and-evidence-act-671745#:~:text=The%20three%20bills%20passed%20are,the%20Indian%20Evidence%20Act%20respectively

[3] Navtej Singh Johar v Union of India, (2017) 9 SCC 1

[4] Sayantani Biswas, Canada, UK, Australia, US witness surge in pro-Khalistan demonstrations. Will this strain India’s foreign relations?, livemint.com,( 09 Jul 2023, 04:23 PM), https://www.livemint.com/news/world/canada-uk-australia-us-witness-surge-in-pro-khalistan-demonstrations-will-this-strain-indias-foreign-relations-11688897594201.html

[5] Aiman J. Chishti, Major Changes Introduced by Bharatiya Nyaya Sanhita,livelaw.in(30 Dec 2023 8:05 PM), https://www.livelaw.in/top-stories/major-changes-introduced-by-bharatiya-nyaya-second-sanhita-245558#:~:text=%27Mob%20lynching%27%20has%20been%20made,maximum%20punishment%20of%20death%20penalty

[6] Bharatiya Sakshya Adhiniyam, 2023,freelaw.in,( 09 February, 2024 ), https://www.freelaw.in/legalarticles/Bharatiya-Sakshya-Adhiniyam-2023

Author: SRD Suraj Varma

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