July 1, 2024, is an important date for the Indian justice system, as three new criminal laws came into effect where transformative wave sweeps across the realm of justice in India, heralded by the advent of three novel criminal laws: the Bhartiya Nyaya Sanhita, the Bhartiya Nagrik Suraksha Sanhita, and the Bhartiya Sakshya Adhiniyam.
These legislative marvels bear within them a tapestry of significant alterations and subtle nuances, reshaping the very fabric of the erstwhile legal provisions. Crafted with meticulous care to align with contemporary exigencies, these laws have not been immune to the critical gaze that accompanies such transformative endeavours. Herein, we have attempted to unravel the essence of these three novel legal enactments.
On the momentous day of July 1, 2024, a profound chapter unfolded in the annals of Indian jurisprudence, as the Bhartiya Nyaya Sanhita (BNS), the Bhartiya Nagrik Suraksha Sanhita (BNSS), and the Bhartiya Sakshya Adhiniyam (BSA) were enshrined into law by the august chambers of Parliament. These laws, poised to supplant the time-honoured edifices of the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act, signify a departure from the past practices that have evolved since the dawn of independence.
Since the emancipation from colonial shackles, the evolution of these criminal laws has been a saga of continual revision. However, the winds of change blowing through these statutes demanded a more profound metamorphosis. As articulated by the Union Home Minister, Amit Shah, these new "sanhitas" embody a quintessentially indigenous legal framework tailored to the unique needs of the Indian milieu. Notably, legal pundits opine that while these new laws herald significant amendments.
The well-thought-out new provisions are drafted to meet the present needs, but some provisions also attract criticism. Here we explain the key features of the three new criminal laws.
Ever since India gained its independence from colonial rule, the three criminal laws have seen revisions time and again. However, this time, these criminal laws needed serious changes. Amit Shah, the Union Home Minister expressed that the new sanhitas demonstrated the laws framed by Indians for Indians. It is interesting to note that as per some legal experts, while the new laws will be bringing important changes, they actually don't "overhaul" the ones already existing.
There are several similarities between the BNS and the IPC. For instance, both start with chapters that cater to general exceptions, punishments, and abetment. Both criminal laws further continue with the Right to Private Defence.
The Bhartiya Nyaya Sanhita (BNS) - A Tapestry of Transformation
Replacing the venerable Indian Penal Code, the Bhartiya Nyaya Sanhita ushers in a host of novel crimes. Of particular significance is Clause 69, which penalises sexual intercourse procured through deceitful means. This provision prescribes imprisonment of up to 10 years, alongside a monetary fine, for such transgressions. Deceitful means encompass a spectrum of actions, including false promises of promotion, concealed identities in marriage, or inducements.
One of the pivotal changes introduced by the BNS is the recognition of murder perpetrated on grounds of caste, community, or race as a distinct offence under Clause 103. In a landscape marked by such heinous acts, this provision affords legal recognition to crimes stemming from these insidious motives.
The BNS also extends its purview to offences like organised crime and terrorism, previously governed by specialised laws. Drawing inspiration from the Unlawful Activities Prevention Act (UAPA), the BNS delineates provisions pertaining to terrorism. Organised crime, as elucidated in Clause 111(1), encompasses a gamut of illicit activities with far-reaching repercussions, from robbery and extortion to cybercrimes and human trafficking.
Clause 304(1) of the Bhartiya Nyaya Sanhita delineates the offence of snatching as distinct from theft, albeit carrying a similar penalty of imprisonment up to three years. Noteworthy parallels between the BNS and the IPC include chapters addressing general exceptions, punishments, and abetment, underscoring a continuity in legal principles.
The Bhartiya Nagrik Suraksha Sanhita - A Paradigm Shift in Procedure
Replacing the time-honoured Criminal Procedure Code of 1973, the Bhartiya Nagrik Suraksha Sanhita mandates forensic investigation for offences punishable by imprisonment exceeding seven years. Crime scenes are to be meticulously scrutinised by forensic experts to gather irrefutable evidence, fostering a culture of scientific rigour in legal proceedings.
In a digital age, all inquiries, proceedings, and trials are mandated to be conducted electronically under the aegis of the BNSS. The production of electronic communication devices for investigation or trial purposes is sanctioned, heralding a new era of technologically-driven legal processes.
The Bhartiya Sakshya Adhiniyam (BSA) - A Testament to Evidentiary Evolution
Replacing the venerable Indian Evidence Act, the Bhartiya Sakshya Adhiniyam heralds a paradigm shift in evidence processing. Notably, the BSA embraces electronic and digital records, encompassing a broad spectrum of evidentiary sources ranging from server logs and emails to location data and website content.
Oral evidence obtained through electronic means is accorded legal sanctity by the BSA, enhancing transparency in legal proceedings. To bolster safeguards for victims of sexual crimes, the BSA mandates audio-video recording of victims' statements, enhancing accountability in investigative processes.
A salient feature of the BSA is the expansion of secondary evidence to include both written and oral admissions, broadening the evidentiary landscape in legal proceedings.
Notable Reactions:
There were mixed reactions among lawyers. Some expressed apprehension at too much power being given to police and investigative agencies, while others said it was a first step in discarding colonial-era rules and regulations.
Former Supreme Court Bar Association (SCBA) president Adish C Aggarwala hailed the new criminal laws as a significant step towards modernising the criminal justice system and ensuring timely delivery of justice. Support for the new laws was also voiced by senior advocates Mahesh Jethmalani, a BJP MP, and Vikas Pahwa.
Aggarwala praised the introduction of specific timelines for trials and verdicts under the new laws, commending Prime Minister Narendra Modi and Union Home Minister Amit Shah for modernising the legal system. He emphasised the importance of rendering judgments within set timeframes, with a provision for extension under specific circumstances.
Mahesh Jethmalani argued that the opposition fails to grasp that the new laws benefit all parties involved in the legal process. Pahwa highlighted the positive aspects of the laws, particularly the incorporation of technology into the criminal justice system, which he believes will expedite trials if implemented effectively.
The change in sections/provisions of some key offences pose the first and most immediate challenge to the bar and the bench as they deal with cases registered under the three new criminal codes.
Murder will now be covered by Section 103 of BNS, rape by Section 63, gang-rape by Section 70(1) and attempt to murder by Section 109, to mention a few. While the old IPC had over 500 sections, BNS is slimmer with just 358 sections.
The first day of the implementation of BNS, Bharatiya Nagarik Suraksha Sanhita (the old one was Criminal Procedure Code) and Bharatiya Sakshya Adhiniyam (Evidence Act) saw lawyers grapple with the shift, with many making a beeline to bookshops to pick up the bare acts of the new laws.
Anticipating the change perhaps, the Bar Council of Delhi had objected to his rollout at present and demanded more time for preparation.
Senior advocate Vikas Pahwa expressed approval of the transition, stating, "In general, the new laws have many positive aspects. While there might be some initial confusion, the system will become more efficient over time. I believe that lawyers will not encounter any difficulties as they are skilled and capable of handling legal matters in court.”
Pahwa did, however, highlight the need for educating the police about the new laws and their enforcement. He raised concerns about the potential misuse of extended powers by the police to obtain confessions and fabricate evidence.
"I don't understand which provision is the problem. They are just saying anything and have not analysed the provisions," he said. Pahwa said, "I think there are a lot of positive points if we read them as a whole. Of course there's also a flip side. The biggest positive point would be the implementation of technology. The entire criminal justice system will now be governed by technology." He said the trials will get expedited if the laws are followed in right spirit. "This is an opportunity to create genuine reform. Unfortunately, what has happened is cosmetic changes, 90 per cent remaining the same, numbers changed, a few words changed here and there…," Singhvi said. He said one other thing which has been forgotten completely is that the judges are fighting with arrears. "Our lower courts have about three-and-a-half crore or four crores of arrears, our High Courts have 60 odd lakhs of arrears, the Supreme Court has about 75,000-80,000 arrears," he said.
A judge said, "We are still in the process of familiarising ourselves with the new laws. Initially, it is the responsibility of the police and magistrates to promptly address the new provisions. The sessions court will come into play later, particularly when new provisions are referenced in revisions or appeals.”
Some senior lawyers highlighted the significance of the new trial timeline procedures, noting that cases will now progress swiftly, with commitments made within 90 days, arguments on charges presented within 60 days of commitment, and charge arguments concluded within 60 days.
Critics, however, identified various challenges, particularly the lack of adequate infrastructure for police and courts nationwide. Senior advocate Abhishek Manu Singhvi expressed disappointment at the missed opportunity for genuine reforms, criticising the new laws for only bringing about superficial changes while overlooking the pressing issue of extensive pending cases in courts, particularly in trial courts.
He criticised the changes as primarily cosmetic, with minimal substantive alterations, expressing concern over the potential increase in pending cases due to amendments in fundamental laws such as the IPC, CrPC, and Evidence Act.
Singhvi said an opportunity to make genuine reforms has been wasted and "cosmetic changes" have been brought about in new laws, disregarding the crucial aspect of huge pendency of cases in courts, especially in trial courts.
He said, "When you tinker with the law by one comma, full-stop, it gives an opportunity to a clever prosecution lawyer or a clever defence lawyer to say, all the 100 years and 200 years of case law on that provision has been changed by the changed by the change of a comma, full-stop." "So, if you make cosmetic changes to three basic laws like IPC, CrPC and Evidence Act… you are giving an opportunity to increase arrears tremendously and that is what I am worried about.”
Kamini Jaiswal and Manish Tewari raised concerns about the negative impact of the new laws on the legal system and society, emphasising the need for a comprehensive evaluation of their implications.
Jaiswal said, "I think it is a disaster. I do not understand who benefits, not the common men, not the lawyers, not the investigating agencies, nobody and I wish the government was taking into account other things, how does it help the unemployment." "The CrPC was amended in 2013. What are they trying to show? This is just the arrogance of power. What will happen to people who don't know Hindi. The judges are saying that they will use old terms only. In local courts, local language is used. There will be a delay in justice," she said. Tewari said the new laws will throw a spanner in the works of the Indian criminal justice system.
Former Law Minister and and senior advocate Ashwini Kumar said these three new laws have led to a nationwide controversy. "Many people have come up with a view that nothing has changed substantially, to the extent that technologies are being used. Nobody disputed that, but in substance, nothing changed substantially," he said.
Former Law Minister and senior advocate Ashwini Kumar noted the controversy surrounding the laws, highlighting the perception that they do not bring about significant substantive changes despite the incorporation of technology.
Advocate and Congress MP Manish Tewari criticised the laws as "pernicious" and “draconian.
Advocate Karan Sachdeva emphasised that the new laws do not adequately tackle issues such as police misconduct and delays in the justice system, calling for a comprehensive transformation to enhance accessibility. He also predicted that the new laws could lead to confusion and necessitate multiple amendments and notifications, similar to the case of GST.
Advocate Vikas Tiwari described numerous potential obstacles, including increased litigation, confusion, and inconsistencies. Sharma characterised the new laws as a two-sided coin, offering both promise and risk.
While acknowledging the positive aspect of revamping the legal framework and addressing long-standing issues, he cautioned that the implementation of these laws presents significant challenges that, if not carefully managed, could result in unintended consequences, injustice, and hardships.
Apex lawyers' body, the Bar Council of India, had urged all bar associations across the country to refrain from any immediate agitation or protest against the implementation of the new laws, promising to take up the issue with govt.
The Takeaway
The date July 1, 2024, stands as a pivotal day for the Indian Justice System, as it implements the Bhartiya Nyaya Sanhita (BNS), Bhartiya Nagrik Suraksha Sanhita (BNSS), and the Bhartiya Sakshya Adhiniyam (BSA). The new criminal laws that are framed to replace the longstanding Indian Penal Code, Criminal Procedure Code, and the Indian Evidence Act bring about important updates that aim to address the modern-day issues of the country.
The BNS recognises new crime. The BNSS makes forensic investigations a mandatory process and digitises the legal processes. The BSA modernises the way evidence is handled by welcoming electronic and digital records. It further strengthens transparency in sensitive matters.
The three new criminal laws have been met with both appraisal and criticism, they demonstrate an important step ahead in the evolution of the legal system of India.˘
(The content of this article reflects the views of writers and contributors, not necessarily those of the publisher and editor. All disputes are subject to the exclusive jurisdiction of competent courts and forums in Delhi/New Delhi only)
By Alok Sharma
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