Introduction

On 11th August 2023, the Union Home Minister, Amit Shah, introduced in the Parliament three bills to replace the British-era Indian Penal Code, 1860 (IPC), Code of Criminal Procedure,1973 (Cr.P.C.), and the Indian Evidence Act, 1872. He stated that this overhaul would "transform our criminal justice system “. The new nomenclature of these Acts will be the Bharatiya Nyay Sanhita, 2023, the Bharatiya Nagrik Suraksha Sanhita, 2023, and Bharatiya Sakshya Bill, 2023. As of now, these Bills have been sent to the Parliamentary Standing Committee on Home Affairs for a detailed discussion. In total, 313 changes have been proposed in the three criminal laws. Highlighting the need of this changeover, the Home Minister stated in the Lok Sabha that "The laws that are being replaced were essentially aimed at safeguarding the continuation of the British administration and their objective was to punish, not deliver justice. " He further said that "The new laws will safeguard constitutional rights and deliver justice. These laws will be imbibed with the Indian soil." He also observed that the three old laws had signs of slavery as they were passed by the British Parliament. With the new laws, the signs of slavery will be removed from 475 places.

The Structure of the Proposed Bills

1. Indian Penal Code,1860

• Bharatiya Nyaya Sanhita Bill, 2023;
• There will be 356 Sections instead of 511 Sections in the Indian Penal Code;
• Total 175 Sections amended;
• 8 Sections have been added, and 22 Sections have been repealed.

2. Code of Criminal Procedure, 1973

• Bharatiya Nagarik Suraksha Sanhita, 2023;
• There will be 533 Sections instead of 478 Sections in Cr.P.C.;
• 160 Sections have been changed;
• 9 Sections have been added, and 9 Sections have been repealed.

3. Indian Evidence Act, 1872

• Bharatiya Sakshya Bill, 2023
• There will be 170 Sections instead of 167 Sections of Indian Evidence Act;
• 23 Sections have been changed;
• 1 Section has been added, and 5 Sections have been repealed.

Some Salient Provisions Under the New Laws:

1. Bharti Nyaya Sanhita Bill, 2023

Sedition: One of the significant proposed legislations aimed at overhauling the criminal justice system will repeal the offence of sedition, as enumerated under Section 124 A of the Indian Penal Code. The new Section 150 of the Bill is as such:

"Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine."

From this Section, it is clearly evident that "the offence of sedition has been retained with a new nomenclature and a more expansive definition of what will constitute 'acts endangering sovereignty, unity and integrity of India', even as it removes the words 'disaffection towards the Government established by law in India" from the old Section 124 A of IPC." Further, in the new provision, words "by electronic communication, by use of financial means" have been added. Similarly, the words "excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities, or endangers sovereignty or unity and integrity of India" have been added to give this provision more teeth and span. It takes into account the Law Commission of India's recommendation in June 2023 to enhance alternative punishment for sedition to seven years from three. Despite that the acid test is the proper and justifiable use of this provision.

Crime Against Women and Children

The new Bill provides harsher punishments on crime against women and children.

It proposes harsh punishment to criminalize sexual intercourse on the basis of false promises of marriage, employment and promotion and on the basis of false identity. Section 69 of the proposed Bill says:

"Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

• The new law under Section 70, states that "in all cases of gang rape, a provision of 20 years of punishment or life imprisonment has been made, which is not being implemented today. In the case of girls below 18 years of age, a provision of death penalty has also been kept. There was no provision for mobile phone or chain snatching from women, but now provision has been kept for the same."
• As per the law (Section 180 of the Bharatiya Nagrik Suraksha Sanhita, 2023), in case of sexual violence, the victim's statement and video recording of the statement has also been made compulsory. Further, under Section 193, It will be compulsory for the police to give the status of the complaint to the complainant in 90 days and in every 15 days, afterwards.
• New provision (Section 111) has been added to punish the terrorists. It provides for the death penalty or life imprisonment "without the benefit of parole" if the alleged terrorists act results in death. He shall also be liable to a fine which shall not be less than rupees ten lakhs. Without reported death, the terrorist act will attract imprisonment for five years to life imprisonment, and shall also be liable to fine which shall not be less than rupees five lakhs. The punishment will be the same for anyone charged with involvement. Thus, a whole Section has been added to deal with the terrorists activities and the punishment to terrorists.
• For the first time, criminal activities like vehicle theft, land grabbing, contract killing, economic offences, cybercrimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prosecution or ransom have been put under the category of organized crime under Section 109 of the Bharatiya Nyaya Sanhita, 2023. If such offence results in the death of a person, the accused persons shall be handed over the punishment of death or life imprisonment along with the fine of not less than ten lakhs of rupees. In other cases, the punishment will not be less than five years, which may extend to life imprisonment and also with fine not less than five lakhs of rupees.
• Under Section 101(2) of the proposed law, mass lynching has been made an offence which says " When a group of five or more persons acting in concert commits murder on the ground of race, caste, or community, sex, place of birth, language, personal belief or any other ground, each member of such group shall be punished with death or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine."
• A new provision of Community Service has been introduced in the proposed Bill under Section 4(f) for petty offences, though no further light has been thrown on the nature of community services.
• For the first time, snatching has been made a separate offence. Section 302 of the proposed Bill says (I) Theft is "snatching" if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from any person or from his possession any moveable property. (2) Whoever commits snatching, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
• Section 253 of the proposed Bill prescribes punishment for corruption for public servants. At present, this is under the purview of the Prevention of Corruption Act. Under this Section, a public servant seeking to save a person from punishment and forfeiture of property can get imprisonment of up to two years. Furthermore, framing incorrect charges to save a person from such consequences can lead to punishment up to three years under Section 254.

2. Bharatiya Nagrik Suraksha Sanhita, 2023

• A time limit of 180 days for filing of a chargesheet has been fixed under Section 232. Police will get 90 days to file a chargesheet. A further 90 days can be granted by the competent court.
• The decision on prosecution sanction against the civil servants will have to be taken within 120 days, else it will be deemed to be permitted, as has been provided under Section 218 of the Bill.
• Videography of search and seizure is being made compulsory and without it, no chargesheet will be accepted by the court. Section 105 of the Bill says "The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under Section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably cell phone and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class."
• The new Bill makes it mandatory for a forensic expert to visit the crime scene and collect forensic evidence for information relating to an offence punishable by imprisonment for at least seven years. Section 176(3) says "On receipt of every information relating to the commission of an offence which is made punishable for seven years or more, the officer-in-charge of a police station shall, from such date, as may be notified within a period of five years by the State Government in this regard, cause the forensic expert to visit the crimes scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device:

Provided that where forensics facility is not available in respect of any such offence, the State Government shall, until the facility in respect of that matter is developed or made in the State, notify the utilization of such facility of any other State."

• The new Bill also provides for the registration of a "zero FIR". Section 173(I) says that every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed may be given orally or by electronic communication.
• In order to ensure speedy investigation and trial, the Bill proposes a 90-day deadline on filing a charge sheet, 60-day time limit on framing charges, and 30-days for delivery of judgment after conclusion of hearing.

3. The Bharatiya Sakshya Bill, 2023

This Bill, if becomes Act, will replace the existing Indian Evidence Act, 1872. The Bill lays down how evidence is treated. The proposed provisions will allow the appearance of witnesses, accused, experts and victims through electronic means. It also allows electronic evidence to have the same legal value as documents. It also seeks to expand the scope of secondary evidence to include copies made from the original by mechanical processes as proof of evidence. According To the statement of object and reason for Bharatiya Sakshya Bill, "The existing law (Cr.P.C.) does not address the technological advancements undergone in the country during the last few decades."

A Critique of the Proposed Bills

The following points have been raised against the provisions of these Bills by the experts, politicians, and the academics:

• Though the word "sedition " has been dropped, the inclusion of the term "subversive activities " again widens the scope wi5h no definition of subversive activities given in the code.
• The retention of the death penalty is a reflection on the government's belief in the outdated ideas of retribution and deterrence. It places India in the company of China, USA, Pakistan, Iran, Saudi Arabia etc.
• The widely abused crime of cruelty has not been made gender- neutral, despite this being one of the rationales for the new code.
• Marital rape has not been made an offence. Similarly, rape has not been made gender neutral.
• Criminal defamation which is supposed to have a chilling effect on free speech has not been decriminalized.
• The offence of blasphemy has been retained though most countries in the world have decriminalized it.
• The naming of the Bills amounts to "Hindi imposition" and "audacious attempt" to tamper with India's diversity.
• The most dangerous part of the draft code is that it permits the Magistrate to authorize detention in police custody for a period beyond the current 15-days limit, extending up to 90 days. Such detention exceeding to 90 days is for offences punishable with death, life imprisonment and imprisonment for a term not less than 10 years. The unimpeded access of the police to the accused may have debilitating effects on his right to life, health including mental well-being and fair trial. Moreover, three months of uninterrupted police custody will expose any accused extremely vulnerable to coercion and intimidation.
• New draft codes need wider consultation and more debate.

Conclusion

The recent amendments in the three criminal legislations of India is set to be a game changer in the field of criminal justice system. These existing enactments owe their origin to the colonial British rule in India, and their objective was largely to sustain the foreign rule in India. Though piecemeal changes were made in these Acts, the overall spirit and intent remained the same. Therefore, the proposed changes in the form of new Bills are welcome. Some new offences like snatching, mob lynching land grabbing etc. have been added and more stringent provision has been made in regard to terrorists activities. Similarly, stricter punishment for sexual violence has also been made. Not only this but also, the provision for taking the help of forensics and the advanced technological developments has also been added so as to make these changes in tune with the times and at par with the western world. However, it is imperative on the part of the Central Government to tread slowly on the path of legislation regarding these epoch-making amendments. Wider consultation with all the stakeholders including lawyers, legal experts, members of civil society and the political class is mandatory. The effort should be made to evolve consensus, as far as possible. Currently, these Bills are lying with the Standing Committee on Home Affairs for further deliberations, and it is hoped that some more finetuning will be done. These amendments are the need of the hour, and this is high time to bring new legislations in the interests of the citizens of India. 

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Reference: 

• Rahul Tripathi, 3 Bills Introduced to Replace IPC, Cr.P.C. and Evidence Act, The Economic Times, August 12, 2023.
• Liz Mathew & Mahender Singh Manral, Old laws were only meant to protect British, not common people, says Shah, The Indian Express, August 12, 2023.
• Utkarsh Anand, Sedition gets new name in bill; ambit wider, penalty harsher, Hindustan Times, August 12, 2023.
• Neeraj Chauhan, Govt moves to overhaul British-era criminal laws, Hindustan Times, August 12, 2023.
• Rahul Tripathi, Crime Against Women, Children to be Dealt with Harsher Punishment, The EconomicTimes, August 12, 2023.
• Neeraj Chauhan, Govt moves to overhaul British-era criminal laws, Hindustan Times, August 12, 2023.