Bharatiya Nyaya Sanhita, 2023 : The New Criminal Code

Introduction

In a landmark move to modernise and streamline India’s criminal justice system, the Parliament recently passed three pivotal bills: The Bharatiya Nyaya  Sanhita, 2023 (BNS), The Bharatiya Nagarik Suraksha  Sanhita, 2023 (BNSS), and The Bharatiya Sakshya  Bill, 2023 (BSB). These bills are set to replace the earlier acts known as Indian Penal Code (IPC) of 1860, Criminal Procedure Code (CrPC) of 1973, and  Indian Evidence Act of 1872, respectively. This comprehensive overhaul marks a significant shift in the country’s legal landscape, aiming to address contemporary challenges and streamline judicial processes.

In this article, we’ll explore each of these bills in detail, examining their key provisions, changes from the previous laws, and the criticisms they’ve faced. We’ll also discuss the potential impact of these reforms on India’s criminal justice system.

Bharatiya Nyaya  Sanhita, 2023 (BNS)

The BNS is set to replace the Indian Penal Code, which has been the primary criminal code for India since 1860. This new legislation introduces several significant changes while retaining many existing provisions.

Key Provisions under The Bharatiya Nyaya Sanhita, 2023

1. Retention and Incorporation of Offences

The BNS maintains existing IPC provisions on crimes like murder, assault, and causing hurt. However, it also introduces new offences to address contemporary challenges:

1. Organised Crime

The bill defines organised crime as a range of offences including kidnapping, extortion, financial scams, and cybercrime. Penalties for these crimes are severe, ranging from life imprisonment to the death penalty, along with hefty fines. 

1. Terrorism

The BNS provides a comprehensive definition of terrorism, describing it as acts threatening the nation’s integrity or causing terror among the populace. Penalties include death or life imprisonment, along with fines. 

1. Mob Lynching 

The bill specifically identifies mob lynching (murder or severe injury caused by five or more individuals, often motivated by factors such as race or caste) as a punishable offense, carrying life imprisonment or the death penalty.

1. Sexual Offences Against Women

While retaining many IPC sections on sexual offences, the BNS introduces some changes:

• The age threshold for gangrape victims is raised from 16 to 18 years.
• It criminalizes deceptive sexual acts or those committed under false promises.

1. Sedition Revisions

The BNS eliminates the colonial-era offence of sedition. However, it introduces new provisions penalising activities related to secession, armed rebellion, or actions endangering national sovereignty or unity.

1. Death by Negligence

The punishment for causing death by negligence is increased from two to five years. However, convicted doctors will face a lower punishment of two years imprisonment.

1. Alignment with Supreme Court Decisions

The BNS incorporates several Supreme Court judgments, such as decriminalising adultery and introducing life imprisonment as an alternative to the death penalty for murder committed by life convicts.

1. Community Service as Punishment

In a novel approach, the BNS introduces community service as a form of punishment for certain offences.

Criticisms faced under The Bharatiya Nyaya Sanhita, 2023

1. Age of Criminal Responsibility

The bill maintains the age of criminal responsibility at seven years, which some argue conflicts with international conventions.

1. Inconsistencies in Child Offense Definitions

There are variations in age thresholds for different offences against children, potentially creating legal inconsistencies.

1. Concerns over Sedition-like Provisions

Critics argue that elements related to endangering India’s sovereignty might retain aspects of the former sedition law.

1. Missed Opportunities in Sexual Offense Laws

The BNS does not incorporate some recommendations from the Justice Verma Committee (2013), such as making rape laws gender-neutral or including marital rape as an offense.

Bharatiya Nagarik Suraksha  Sanhita, 2023 (BNSS)

The BNSS is set to replace the Criminal Procedure Code of 1973, introducing significant alterations to criminal procedure in India.

Key Provisions under the Bharatiya Nagarik Suraksha  Sanhita, 2023

1. Detention Conditions

The BNSS alters rules for undertrials, restricting release on personal bond for those accused in severe offences, including life imprisonment cases and individuals facing multiple charges.

1. Medical Examination

It broadens the scope of medical examinations, allowing any police officer (not just a sub-inspector) to request one, making the process more accessible.

1. Forensic Investigation

The bill mandates forensic investigation for crimes punishable by at least seven years’ imprisonment. It requires forensic experts to collect evidence at crime scenes, recording the process electronically. States lacking forensic facilities should utilise those in other states.

1. Sample Collection

The BNSS extends the power to collect finger impressions and voice samples, even from individuals not under arrest, expanding beyond the CrPC’s specimen signatures or handwriting orders.

1. Timelines

The bill introduces strict timelines:

• Medical reports for rape victims within 7 days
• Judgments within 30 days (extendable to 45)
• Victim progress updates within 90 days
• Charge framing within 60 days from the first hearing

1. Court Hierarchy

The BNSS eliminates the distinction of Metropolitan Magistrates for cities with over a million people, simplifying the court structure.

Criticisms faced under the Bharatiya Nagarik Suraksha  Sanhita, 2023

1. Property Attachment from Crime Proceeds

The power to seize property from crime proceeds lacks the safeguards provided in the Prevention of Money Laundering Act, raising concerns about potential misuse.

1. Restrictions on Bail for Multiple Charges

The BNSS denies bail facility for individuals facing multiple charges, which may limit bail opportunities in cases involving multiple sections.

1. Handcuff Use

The bill permits the use of handcuffs in various cases, including organised crime, which contradicts directives laid down by the Supreme Court.

1. Integration of Trial Procedure and Public Order Maintenance

Questions have been raised about whether trial procedures and the maintenance of public order should be regulated under the same law or addressed separately.

Bharatiya Sakshya  Bill, 2023 (BSB)

The BSB is set to replace the Indian Evidence Act of 1872, introducing changes to how evidence is treated in the Indian legal system while retaining many existing provisions.

Key Provisions under the Bharatiya Sakshya  Bill, 2023 (BSB)

1. Documentary Evidence

   • The definition of documents is broadened to include electronic records alongside traditional writings, maps, and caricatures.
   • Primary evidence retains its status, encompassing original documents, electronic records, and video recordings.
   • Oral and written admissions, along with testimony from a qualified individual examining the documents, are now considered secondary evidence.

2. Oral Evidence

The BSB permits electronic provision of oral evidence, enabling witnesses, accused individuals, and victims to testify through electronic means.

1. Admissibility of Electronic Records

Electronic or digital records are granted equivalent legal status as paper records. This includes information stored in semiconductor memory, smartphones, laptops, emails, server logs, locational evidence, and voicemails.

1. Amended Explanation to Joint Trials

Joint trials now encompass cases where one accused is absent or has not responded to an arrest warrant.

Criticisms under the Bharatiya Sakshya  Bill, 2023 (BSB)

1. Admissibility of Information from Accused in Custody

The BSB allows such information to be admissible if obtained when the accused was in police custody, but not if he was outside. The Law Commission recommended removing this distinction.

1. Unincorporated Law Commission Recommendations

Several recommendations by the Law Commission, such as presuming police responsibility for injuries sustained by an accused in police custody, have not been included in the BSB.

1. Tampering of Electronic Records

While the BSB provides for the admissibility of electronic records, there are no specific safeguards to prevent tampering and contamination of such records during the investigation process.

Impact and Implementation Challenges

The introduction of these three bills represents a significant overhaul of India’s criminal justice system. Their implementation is likely to face several challenges:

1. Judicial Interpretation

The courts will play a crucial role in interpreting the new provisions, especially where the language differs from the previous laws. This process of judicial interpretation may take years to establish a comprehensive body of case law.

1. Law Enforcement Training

Police and other law enforcement agencies will need extensive training to understand and correctly apply the new codes. This will be particularly important for new offences, modified definitions, and changes in procedural aspects.

1. Public Awareness

Educating the public about the changes in the criminal laws will be essential for their effective implementation and to ensure that citizens understand their rights and responsibilities under the new system.

1. Resource Allocation

The introduction of new offences, modified procedures, and emphasis on forensic investigation may require additional resources in terms of forensic capabilities, court infrastructure, and personnel.

1. Balancing Rights and Security

One of the key challenges will be balancing individual rights with national security concerns, particularly in the context of the new provisions related to terrorism and activities against national sovereignty.

1. Technological Infrastructure

The increased emphasis on electronic evidence and digital records will require significant upgrades to the technological infrastructure of the justice system.

Potential Impact on India’s Criminal Justice System

1. Modernization

These bills aim to modernise India’s criminal justice system, making it more responsive to contemporary challenges such as organised crime, cybercrime, and terrorism.

1. Efficiency

The introduction of strict timelines for various judicial processes could potentially speed up trials and reduce the backlog of cases in Indian courts.

1. Forensic Focus

The emphasis on forensic investigation could lead to more scientific and reliable evidence collection, potentially improving conviction rates in serious crimes.

1. Digital Integration

The recognition of electronic records and provision for electronic testimony aligns the justice system with the digital age, potentially making it more accessible and efficient.

1. Controversy and Debate

Some provisions, particularly those related to activities against national sovereignty (replacing sedition) and restrictions on bail, are likely to spark ongoing debates about the balance between state power and individual rights.

1. International Scrutiny

Certain aspects of these bills, such as the age of criminal responsibility and the approach to sedition-like offences, may face scrutiny from international human rights organisations.

Conclusion

The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Bill represent a comprehensive attempt to modernise and streamline India’s criminal justice system. These bills introduce significant changes in substantive criminal law, criminal procedure, and the law of evidence.

While they aim to address contemporary challenges and improve efficiency, they have also faced criticisms on various fronts. The true impact of these reforms will only become clear through their implementation and interpretation by the courts over time.

As India moves forward with these new laws, it will be crucial to monitor their effects on crime rates, conviction rates, the speed of trials, and the overall fairness of the justice system. Continuous evaluation and potential amendments may be necessary to ensure that the system remains just, effective, and in line with constitutional values and international human rights standards.