Revised Criminal Law Reform Bills

KEY TAKEAWAYS

5. President Droupadi Murmu gave her assent to the revised criminal law reform bills on 25 December 2023, marking the beginning of an insightful and historic journey towards public welfare and development.
5. The Bharatiya Nyaya (Second) Sanhita Bill, 2023 will replace the IPC, the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 will replace the CrPC of 1973, and the Bharatiya Sakshya (Second) Bill, and 2023 will replace the Indian Evidence Act of 1872.
5. The passage of these Bills coincided with the suspension of three more opposition MPs, further diminishing the strength of non-NDA parties
5. The introduction of the three proposed laws has resulted in numerous changes, with a particular focus on crimes committed against women and children, murder cases, and offenses against the State. These laws prioritize the delivery of justice to individuals and safeguard their fundamental human rights.

INTRODUCTION

On Monday, 25 December 2023, a significant and historic event took place as the President of India, Droupadi Murmu, gave her assent to three criminal law reform Bills. These Bills, namely the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam, have replaced the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act. Despite the absence of over two-thirds of the Opposition due to the mass suspension of MPs, both Houses of Parliament passed these Bills.

The beginning of this venture began on 11 August 2023 when the new bills were introduced in the Lower House of Parliament. The purpose of these Bills is to replace the Indian Penal Code (IPC) of 1860, the Code of Criminal Procedure (CrPC) of 1973, and the Indian Evidence Act of 1872. The Bharatiya Nyaya (Second) Sanhita Bill, 2023 will replace the IPC, the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 will replace the CrPC of 1973, and the Bharatiya Sakshya (Second) Bill, 2023 will replace the Indian Evidence Act of 1872. After their introduction, these Bills were referred to a Parliamentary Standing Committee consisting of 31 members, with BJP MP Brij Lal as the head, for review. The committee consulted experts and stakeholders before adopting its report on the Bills on November 7. During this process, Opposition MPs raised concerns about various errors and recommended more than 50 changes. In their dissent notes, the Opposition MPs criticized the lack of diversity among the consulted experts, questioned the rushed introduction of the new laws, and highlighted that they are largely similar to the existing laws. The committee, however, addressed grammatical and language errors and incorporated the suggestions provided. They emphasized that introducing new Bills was necessary to avoid numerous official amendments that would have been required if the old Bills were continued. Members were given a sufficient 48-hour period to study the Bills, as the government did not want to rush the passage of such important legislation. Regardless, earlier this month, the government made the decision to substitute them with the new drafts following recommendations from the Parliamentary Standing Committee on Home Affairs. On Sunday, 24 December, the Telecommunications Bill received the President's approval and has now been officially implemented as law. The Act was flagged by civil rights activists for its potential privacy concerns.

BRIEF OVERVIEW OF THE NEW LAWS

1. Bharatiya Nyaya (Second) Sanhita, 2023 (“BNS”)

The BNS is set to replace the IPC and will consist of 358 Sections, a decrease from the previous 511. Along with this change, two new offenses have been added to the BNS, while the punishment for 33 offenses has been increased and fines for 83 crimes have been raised. Additionally, the new criminal code introduces minimum punishment for 23 Sections, while removing 19 of them. Notably, the proposed law includes community service as a penalty for six offenses, marking the first time such provision has been included.

2. Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”)

The BNS will experience an increase in size with 531 Sections, as opposed to the previous CrPC which had 484 Sections. Furthermore, amendments have been made to 177 provisions. Through an extensive consultation process that commenced in 2019, the legislation has incorporated nine new Sections, 39 sub-sections, and 44 new provisions and clarifications. Additionally, timelines have been added to 35 Sections, and the use of audio and video tools in investigations has been recognized in the Bill. The Bill also aims to remove 14 Sections.

3. Bharatiya Sakshya Bill, 2023 (“BSB”)

The BSA, which aims to substitute the Indian Evidence Act, comprises 170 Sections instead of the previous 167, even though six of them have been removed. In total, modifications have been made to 24 Sections, and the BSA has also incorporated two new sections and six sub-sections.

KEY CHANGES

1. The BNS has repealed Section 124A of the Indian Penal Code, which defined "sedition" as an offense. The Ministry of Home Affairs has replaced the word "sedition" with a broader term, Clause 150 titled 'Acts endangering sovereignty unity and integrity of India.' This new clause criminalizes acts that endanger the sovereignty, unity, and integrity of India, including the use of electronic communications to incite armed rebellion, subversive activities, secession, separatism, or to endanger India's unity, sovereignty, and integrity. While actions similar to sedition will still be penalized, the new clause's vagueness expands its scope and application, which could have severe consequences for free speech, dissent, and journalistic freedom. Unlike Section 124A, Clause 150 mandates imprisonment under all circumstances, removing the possibility of a limited penalty in the form of a fine. Additionally, the inclusion of 'electronic communications' as a means to commit "seditious" acts raises concerns about privacy, especially when read in conjunction with the Telecommunications Bill, 2023. These changes have been made despite the ongoing deliberation of the Supreme Court on the constitutionality of the sedition law. On September 12, 2023, a 3-judge bench of the Supreme Court referred the petitions challenging the sedition law's constitutionality to a bench of at least 5 judges.
2. Clause 172(2) of the BNSS expanded the powers of the police in terms of taking preventive action. It granted police officers the authority to detain or remove individuals who resisted, refused, ignored, or disregarded any directions given by them under sub-section (1) and bring them before a Judicial Magistrate or, in minor cases, release them "when the occasion is past." However, the panel recommended that the duration of such detention should be specified, and the phrase "release him when the occasion is past" should be clarified to eliminate any ambiguity. The new Bill introduces a time limit to this provision. It states that the detained person may be taken to a magistrate or, in minor cases, be released as soon as possible, within 24 hours. Additionally, the term "judicial magistrate" in the previous BNSS has now been replaced with "Magistrate."
3. The BSB expands the definition of 'documents' to include electronic or digital records, as well as online communications on various personal devices. The definition is extensive and includes all forms of electronic communication, such as messages, call recordings, and emails, as well as electronic communication devices like mobile phones, laptops, cameras, and any other electronic device that may be specified by the government in the future. While the bill aims to bring about significant reform, it fails to provide any measures to ensure the security or proper custody for digital evidence obtained during investigations. Without safeguards in place, the private information or communication stored by the investigating officer could be vulnerable to tampering, leaks, or breaches. Additionally, although the BSB requires certification for the admissibility of electronic evidence, similar to Section 65B of the Indian Evidence Act, there is a contradiction in how the BSB classifies electronic records as "documents" that may not require certification. It is important to note that this classification shift from secondary to primary evidence for electronic records is problematic, considering their susceptibility to tampering.
4. The classification of financial scams and cyber crimes as 'organised crime' by the BNS is a notable change that will result in stricter penalties for these types of cyber crimes. Although this is initially seen as a positive move, the regulation of 'organised crime' on both national and international levels carries a significant amount of historical implications and may have unintended consequences. Therefore, it is required that any reforms in this area are undertaken only after thorough consultation with experts, relevant stakeholders, and civil society.
5. The BNSS sets specific timeframes for different procedures. It mandates that medical practitioners who assess rape victims must submit their reports to the investigating officer within a week. Additional timelines outlined in the legislation are as follows: (i) delivering a verdict within 30 days after the completion of arguments (with the possibility of extension up to 45 days), (ii) updating the victim on the investigation's progress within 90 days, and (iii) the sessions court framing charges within 60 days from the initial hearing on said charges.
6. The BNSS requires the use of forensic investigation for crimes that carry a punishment of seven years of imprisonment or more. Forensic experts will be dispatched to crime scenes in order to gather forensic evidence and document the entire process. It is possible for all trials, inquiries, and proceedings to be conducted electronically. Additionally, electronic communication devices that are likely to contain digital evidence can be submitted for investigation, inquiry, or trial. In cases where a wanted criminal has fled to avoid trial and there is no immediate possibility of apprehending them, the trial can proceed and a judgment can be rendered in their absence. In addition to collecting specimen signatures or handwriting, finger impressions and voice samples may also be obtained for investigation or legal proceedings. It is permissible to collect samples from individuals who have not been arrested.
7. A joint trial pertains to the trial of multiple individuals for the identical offense. According to the IEA, if one of the accused makes a confession that also implicates the other accused, it will be considered as a confession against both parties. The BSB2 further clarifies this provision by stating that in cases where one of the accused has fled or failed to respond to an arrest warrant, a trial involving multiple individuals will still be regarded as a joint trial.
8. Clause 101(2) of the BNS establishes penalties for a specific type of murder known as mob-lynching. This form of murder occurs when a group of five or more individuals collaborate to commit murder based on factors such as race, community, sex, place of birth, language, personal belief, or any other motive. The prescribed punishment for this offense includes a minimum prison sentence of seven years and a fine.

CONCLUSION

On December 21, 2023, Union Home Minister Amit Shah emphasized that the three new criminal laws embody the essence of Bharatiya culture. During the discussion on these legislations, which were ultimately passed by the Rajya Sabha, Shah took the opportunity to address the opposition's skepticism regarding the necessity of comprehensive reforms in the colonial-era legal system. The passage of these Bills coincided with the suspension of three more opposition MPs, further diminishing the strength of non-NDA parties. With a total of 522 MPs in the Lok Sabha, the BJP holds 290 seats, while the National Democratic Alliance (including BJP and its allies) commands a total of 324 seats. It is worth noting that 97 Opposition MPs have been suspended from the Lok Sabha, and 46 from the Rajya Sabha. Currently, approximately 49 percent of Opposition MPs in the Lok Sabha are under suspension. During the debate, prominent opposition MP Asaduddin Owaisi, President of the All India Majlis-e-Ittehadul Muslimeen, was present in the House, along with leaders from NDA-friendly parties such as Harsimrat Kaur Badal from the Akali Dal and representatives from the Telugu Desam Party. Amit Shah stated that even though the opposition leaders were not present, it was his duty as public servant to address their queries raised outside on the necessity for the three Bills. In his extensive response to the debate on legal reform, Shah emphasized that the three new Bills aim to establish a justice system rooted in Indian values. He highlighted that these Bills uphold the principles of the Constitution and liberate people from the remnants of colonialism. Chairman Jagdeep Dhankar aptly stated that these three bills have successfully rid our criminal jurisprudence of its colonial legacy, which had been detrimental to the citizens of our nation and favored “alien rulers”. As we observe this momentous journey unfold in the years to come, one can only hope that it accomplishes everything that has been pledged through its implementation.