Laws in India are passed only after thorough debate and discussion in the parliament followed by the assent of the President.1 This ensures that the laws are not hastily approved and does not violate the rights of the citizens.2 The sitting members in the parliament are representative of the people of their respective constituencies, it is necessary that every member of the parliament is adequately consulted during the legislative process.3
However, in 2023, when India introduced and passed three new criminal law bills that fundamentally restructured the country’s criminal justice system, replacing the long-standing laws that had been in place since before independence.4 The passing of these laws was done during the 2023 winter session where over 140 MP’s were suspended which limited thorough discussion and debate on these landmark reforms.5
Despite these procedural challenges in parliament the new laws broaden the scope of what actions could be covered under the scope of offences and put in place a system of check and balance that align with the technological realities of the current generation.6 This paper analyses the historical background of these reforms and examines their potential impact, particularly in relation to their constitutional validity. It begins by outlining the evolution of criminal law in India, then examines key provisions of the new statutes, and finally evaluates these provisions against core constitutional principles, particularly 14, 19, 20 and 21.7 By assessing both procedural and substantive aspects, the paper seeks to determine whether the reforms strike a balance between strengthening the criminal justice system and safeguarding the rights of citizens.
Historical Background of Criminal Law in India
The evolution of criminal laws dates back to ancient legal texts such as the Manusmriti, Dharmashastra and Arthashastra.8 These early systems placed a significance on preserving the caste system rather than delivering justice. Acts were treated as crime primarily when they threatened the authority of the king or the stability of the society, reflecting the sovereigns supreme position. This system had a very subjective method of punishment as the Brahmin got lighter punishment but the Shudras got harsher punishment for comparable offences.9
Later during the medieval period there was a lot of Islamic influence due to which the laws were based on the literature of Quran, Sunnah and Hadith. The criminal laws were same for everyone and it followed a strict punishment method.10
A major cultural shift occurred under the British rule where they modernized the criminal legal system by introducing IPC, CrPC, considering crime to be against society not just individuals, this change was seem to be positive since it put forth a unified codified system but there were discrepancies which were not ideal. The system was not completely fair but it did provide a base upon which the laws were changed after the independence. 11
Post-independence India treated colonial criminal laws as a foundational framework, making necessary alterations in respect to the values of the Constitution of India12, particularly ensuring conformity with Articles 14, 19 and 20, and consequently, the laws were modified to ensure constitutionality, equality before law, protection of personal liberty, and safeguards against arbitrary state action.13
Overview of the 2023 Criminal Law Reforms
In 2023, the Indian Parliament enacted three criminal legislations: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) to replace the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.14 These reforms aimed at decolonising criminal law, addressing contemporary forms of crime, and improving the efficiency of criminal trials.15
The Bharatiya Nyaya Sanhita redefines substantive criminal law by introducing new offences such as organised crime, terrorism and mob lynching, while also rephrasing the definitions of sedition as an acts endangering the sovereignty, unity and integrity of India.16 This legislation also expands the scope of many criminal offences and modernizes the framework to account for crimes facilitated through digital and technological means.17
The Bharatiya Nagarik Suraksha Sanhita focuses on procedural reforms aimed at expediting the criminal justice process. It creates accountability by introducing fixed timelines for investigation and trial, expands the scope of police custody, permits greater use of technology such as videography during investigation and trial, and revises provisions relating to arrest and handcuffing.18 While it does grant a greater level of liberty to the investigating authorities, they also raise concerns regarding the potential misuse of such powers, particularly in relation to personal liberty and procedural safeguards.19
The Bharatiya Sakshya Adhiniyam modernises evidentiary rules by recognising electronic and digital records as primary evidence and expanding the broadness of the admissibility of electronic communications.20 It seeks to align the evidentiary standards with the realities of a digital society, though the expanded presumption relating to electronic evidence have prompted questions regarding the accused’s right to fair trial.21
Focus on Constitutional Validity
The enactment of the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam marks a significant transformation of India’s criminal justice framework. Given the depth, the prevalence and the power these law have over the country it is very necessary to ensure that the laws are not contradictory to the fundamental principles that our country stands by.
Our constitution is constructed on the ideals that relies on the principles of our preamble that are justice, liberty, equality and fraternity and so are the articles of the same. In order to assess the constitutional validity of the 2023 criminal law reforms, this paper undertakes an examination of these ideals through Articles 14, 19, 20, 21 and 22 of the constitution.
Article 14: Equality and the Principle of Non-Arbitrariness.
Article 14 has been established to guarantee equal before the law and equal protection of the laws for all persons in India, these newly passed legislation contradicts these principles. The power given to law enforcement is excessive and vague for an instance, section 35 of BNSS allows the police officer to arrest without a warrant if they have reason to believe, here the statement reason to believe means if they feel something is wrong which is a subjective standard.
Concerns have also been raised over human rights and civil liberties, since certain clauses like anti-sedition clauses could curb freedom of speech and target marginalized communities similar to colonial-era laws.22 New provisions for organized crimes can be applied too broadly, even to petty crimes, compromising liberty.
Article 19 : Freedom of Speech, Assembly and Association.23
The newly enacted laws raise concerns regarding the dilution of these freedoms due to their broad and ambiguous formulation of offences related to public order, state security, and sovereignty. Several provisions under the Bharatiya Nyaya Sanhita criminalise acts that merely “endanger” public order or unity, without clearly defining the threshold of harm required.24 Ambiguous definition jeopardizes people’s right to protest, journalistic activity, and political criticism. The fear of criminal prosecution under these provisions creates a chilling effect, discouraging individuals from exercising their Article 19 rights, thereby undermining the ethos of the constitution.
Article 20 : Protection against Ex Post Facto Laws and Self-crimination.25
Although the new criminal laws are prospective in nature, the transition from the old regime to the new has created legal ambiguity, particularly in ongoing investigations and prosecutions. The new provision regarding the admissibility of electronic and digital evidence without adequately addressing safeguards against coercion.26The absence of clear protection against forced access to personal digital devices may indirectly compel self-incrimination, thereby weakening the constitutional guarantee.
Article 21: Right to Life and Personal Liberty.27
The Bharatiya Nagarik Suraksha Sanhita significantly expands police power regarding arrest, custody and investigation timelines.28 Provisions permitting the custody not exceeding 15 days in the whole or in parts at any time during the initial 40 days or 60 days out of the detention period of 60 days or 90 days as the case may be. This change from earlier framework raises concerns Article 21, as it allows extended police custody beyond the initial period, increasing the risk of coercion custodial abuse and arbitrary deprivation of personal liberty. Such provision increase the need for judicial oversight and strict procedural safeguards to ensure that the expanded powers do not undermine the constitutional guarantee of personal liberty and further imposing burden.
Article 22: Protection Against Arbitrary Arrest and Detention.29
Article 22 of the Constitution acts as an safeguard to protect against arbitrary arrest and detention. It guarantees that an arrested person must be informed of the grounds of arrest, be allowed to consult and he defended by a legal practitioner of their choice , and be produced before a magistrate within twenty-four hours of arrest. These safeguards are intended to act as a constitutional check on the exercise of police powers and to prevent misuse of authority. The Bharatiya Nagarik Suraksha Sanhita introduces provisions that dilute these protections. By expanding the scope of police custody beyond the initial period and permitting custody in parts over an extended duration, the BNSS risks undermining the effectiveness of judicial oversight mandated under Article 22. Prolonged police custody, even when fragmented, may weaken the safeguard of prompt magistrate supervision and increase the vulnerability of the accused to coercive practices.
Further provisions permitting arrest based on broadly worded standards such as “reason to believe” raise concerns regarding compliance with Article 22(1), which requires that arrest procedure to be fair, reasonable, and transparent. The Supreme Court has consistently held, including in D.K Basu v. State of West Bengal,30 that procedural safeguards on cases pf arrest are not mere formalities but essential components of personal liberty. Any legislative framework that expands arrest and detention powers must therefore be interpreted and applied in a manner that strictly adheres to the constitutional guarantees.
Analysis
The evaluation of the 2023 criminal law reforms requires a balanced evaluation of legislative goal, the resulting changes in the structure and their practical effects within the framework of the Constitution.31 This new criminal law is multi-faceted and multidimensional since it collectively reshapes the procedural law and evidentiary law, and influence the relations between State authority and individual rights, making constitutional criticisms both necessary and complex.32
The aim of these new laws is to address persistent disapproval of Indias criminal justice system which are procedural delays, inadequate recognition of technological evidence and the inability of colonial-era laws to effectively deal with transnational crimes.33 By bringing forward changes like fixed timelines, recognitions of electronic evidence, and codification of modern offence highlights and effort taken by the State to ensure effective governance and public order.34
However, constitutionality is not achieved by simply taking efforts but there should also be ameans/paths through which we can achieve this.35 Several provisions across the new enactment rely upon broadly framed standards and vagueness that vest substantial liberty on investigative authorities without imposing much accountability as every act performed by such an authority is classified under his under “discretion”.36 While discretion is an inherent component of the criminal justice system but expanding it without proportionate safeguards raises concerns regarding arbitrariness and unequal application.37 The effectiveness of such provisions largely depends on it’s interpretation and how rigorously judicial oversight is practiced.38
A recurrent theme is the relationship between efficiency-driven reforms and the defence of fundamental rights.39 Provisions such as police custody, arrest authority, and admissibility of evidence are intended to improve investigations but granting this liberty also has its cons as it makes the accused more vulnerable to the possibility of coercion, abuse, and procedural injustice.40 According to our constitution due process, fairness and reasonableness must always take precedence over procedural injustice.41 It is impossible to evaluate the new frameworks compliance with this standard at textual level alone as implementation and judicial interpretation will play a major role.42
Similarly offences framed with the ultimate motive to protect public order, sovereignty, and national security reflect legitimate state interest but it also requires careful application without infringing anyone’s right to speech and expression.43 The distinction between genuine threat against the sovereignty of the country and an individual providing criticisms without any mala-fide intention is very blurry and, thus, a comment with a Bonafide intention can me made out as something more than dangerous then it is.44 The proportionality of these provisions will be tested through their enforcement rather their state intent.45
The transitional phase between the old and new criminal law regimes further complicates constitutional assessment.46 The simultaneous application of these new laws creates a confusion in interpretation of statutes of different categories of offences for the courts and other enforcement agencies.47 Uncertainty like this points out the importance for a uniform system to prevent procedural confusions and potential rights violations.48
Conclusion
One of the most significant changes to India’s criminal justice system since independence is represented by the implementation of the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam.49 They hope to improve procedural efficiency, address modern crime, and modernise and Indianize the laws by replacing these colonial-era ones.50 These goals represent a justifiable and essential reaction to the State’s evolving social, technological, and security challenges.51
At the same time, criminal law reforms must operate within the constitutional framework, that guarantees of equality, personal liberty, due process and fundamental freedoms.52 The analysis undertaken in this paper indicates that while the new laws aim to strengthen law enforcement and judicial efficiency, certain provisions violate the fundamental principles essence of the constitution. The concerns mentioned do not by themselves render to be unconstitutional, but they emphasize a need for careful and restrained application.53
The validity of this new legislation will ultimately depend on their text and their interpretation and implementation by respective investigative authorities.54 Ensuring judicial oversight, and a rights-oriented approach enforcement will be crucial to prevent misuse of power and resulting it into any arbitrariness or abuse.55 In reference to this jurisprudence developed under the articles of the constitution will play a determinant and active role in shaping the practical operation of these reforms.56
In conclusion, the new criminal laws represent both an opportunity and a challenge. They offer a potential to create active, responsive and efficient criminal justice system, yet they also demand heightened constitutional vigilance to safeguard individual rights.57 A balanced approach that corresponds the objective of effective governance with the foundational values of justice, liberty, and equality will ultimately decide strength or strain India’s constitutional order.58
Author: Archa Pillai
Juris Centre 