This article is in the the backdrop of enactment of three New Criminal Laws, namely Bharatiya Nyaya Sanhita 2023, Bharatiya Nagarik Suraksha Sanhita 2023 and Bharatiya Sakshya Adhiniyam 2023, being brought into effect from 1st July, 2024.
The existing criminal laws which trace their origin to the colonial era, need to come out and define the State-Citizen relationship not based on colonial prejudices and practices but on the principles of access of justice to all. The three laws have hence been enacted to overhaul the criminal justice system in the country to make it citizen-centric. The need for changes in the Criminal Justice system, which was initially brought into effect from the perspective of colonial rulers and lacked Indian spirit and ethos.
These new laws are watershed moment for our society because no law affects the day-to-day conduct of our society like criminal law. Criminal laws direct the moral arch of the nation and have the ability of depriving people of their cherished liberties as well. One of the problems of our criminal justice administration is that we treat the serious and the petty offences on the same footing. This has to change, and it has changed under these three new criminal laws. The need for changes in the Criminal Justice system, which was initially brought into effect from the perspective of colonial rulers and lacked Indian spirit and ethos.
In the old criminal laws there were the problem of absconders. However, as per the new laws, now Courts can pass even the conviction order againstthem. For the first time by a statutory mechanism, there is a provision of a mandatory requirement of zero FIR. In an anti- criminal move the first 15 days of investigation are crucial, and now that 15 days period is segregated, it can be used within 60 days or 90 days as the case maybe depending upon the nature of the allegation made against the accused, and it can be in instalments also.
The BNS has brought in significant changes in substantive criminal law, while retaining a substantial part of the Penal Code, 1860. The BNSS, introduces on the other hand, sweeping changes in the procedure designed to galvanise India’s justice system through the imposition of strict timelines for various stages and aspects of investigations, enquiries, trials, judgments, and appeals as also by the introduction of liberal use of the electronic medium to enhance its efficacy. It is victim friendly and gives opportunities to accused of fair representation. There have been minimal changes in the BSA.
The penal laws alone do not form the criminal justice system, but the investigator, the prosecutors, the Courts and the prisons, all exist in their interrelationship with each other. The perceptions and attitudes of the people in the community towards crime, are important elements in the administration of justice.
"Bharatiya Nyaya Sanhita (BNS) 2023"
Against 511 sections in the Indian Penal Code, now the BNS has total 358 sections. BNS has highlighted the evolution from a punitive approach ('danda') to a justice-oriented one ('nyaya') within the legal framework. Notably, the restructuring of offenses included a specific section dedicated to crimes against women and children, aiming to enhance the accessibility and comprehensibility of the law for all.
The problem of complicated and scattered chapters under the IPC has been resolved. Chapter 5 of the BNS consolidates the offences related to women and children at one place, which were previously scattered under 4 separate chapters of the IPC. The arrangement of offences is in the manner, which is easily understood to the layman. The common man’s perspective that he had to go through IPC and what the Supreme Court has held, has been taken care of and the definitions for various offences has been included in a simplified language. All the major reforms, significant judgments in the past 75 years have been included in the BNS. On sexual intercourse by false promise of marriage, it was already criminalised as a part of rape but the significant step under the BNS that it has been segregated and kept out of rape. The ‘deceit’ in the promise has been the focal point and the false promise to marry cannot be equated with other cases of rape. Sec.69 has been incorporated in BNS to combat situation of false promises to marry which is commonly known as Love Zihad. We can take example of Shradha Walker Case and also a movie named Kerela Story, a reality based movie. Innocent women in our Indian Society are being victims of Love Zihad since past many years. This section in the BNS criminalises the offenders to a person developing a physical relationship in a deceitful manner on making false promises to marry.
The definition of document under Section 2(1)(d) of the BSA specifically includes electronic and digital records. Additionally, the definition of evidence 2(1)(e) of Bharatiya Nyaya Sanhita, it includes statement given electronically.
There were some general offences, such as offences against the human body and the State, which were drafted in the IPC, way back in 1860, still find their way in the BNS. There are some important deletions in the BNS such as the Section 377 of the IPC, Section 124-A, Section 309, etc.
Under section 106 (2) of the BNS, the hit and run cases has been recognised and the punishment is enhanced to 10 years of imprisonment. “Criminality is like gunpowder lying harmless in the gun, unless it is ignited by some external act” and there are various factors which constitute the offence. Similarly, sub section (2) to section 106 BNS can also be taken in a similar manner. Unless and untill the offenders do not flee from the spot and report to the Police officer or the magistrate about the accident, he is prevented from the harsher provision.
The community service has been introduced as one of the punishments which are welcomed by all. So far as community service is concerned, it has been introduced for the first time and what are the parameters, nature of service to be performed has been left to the discretion of the court.
"Bharatiya Nagarik Suraksha Sanhita, (BNSS), 2023"
The new Procedural Law (the BNSS) is protection based and talks about Suraksha. This is in tune with moving away from the Code, which was in exclusive domain of investigation, prosecution, etc. All procedure must avoid coercion, compulsion, discomfort and ensure self-protection. The use of word Suraksha is not only symbolic, but the provisions are slated towards fairness. The ‘nyaya’ signifies social justice.
This legislation marks for the first time that audio, video, and electronic means have been comprehensively defined. Additionally, the definition of electronic communication has been established. Our civilization, with its deep-rooted quest for justice, particularly emphasizes the need for reform. Over the years, there has been a growing sentiment that the criminal justice system is failing to meet the expectations of a society.
The Bharatiya Nagrik Suraksha Sanhita provides a holistic approach to deal with crimes in the digital age. The BNSS also stipulates that criminal trials must be completed in three years, and judgments must be pronounced within 45 days of being reserved. This would help in clearing the vast backlogs and faster delivery of justice. It is very heartening to notice that Section 530 of the BNSS allows all trials, inquiries, and proceedings may be conducted in electronical mode, which is in keeping with the need of the present time. The importance of protecting privacy in the digital age, especially when dealing with the digitisation of proceedings and of matters pertaining to digital evidence.
Many provisions in BNSS have been retained due to their alignment with our constitutional framework and their efficacy in serving the larger objective of justice. However, there is recognition that certain areas require attention and reform. When procedural complexities impede the delivery of justice, amendments become imperative. One critical area addressed in the legislation is the definition of electronic communication.
How the BNSS supports victims; It is underscored that the legislation is inherently victim-centric, seeking to achieve a balance between victims’ rights and those of the accused. Provisions such as plea bargaining and protections against false imprisonment aims to ensure fairness and justice for all parties involved. The legislative amendments represent a significant step towards reforming the criminal justice system, addressing longstanding issues, and fostering trust and efficiency among stakeholders. However, careful implementation and ongoing evaluation are vital to realizing the full potential of these reforms.
"Bharatiya Sakshya Adhiniyam (BSA) 2023"
The law of evidence remained intact since 1872. Some parts were amended in 2000 and 2008 due to change in Information Technology Act, 2000. The BSA has undergone very minimal changes as compared to the BNS and BNSS.
The BSA essentially covers up all the missing points related to rules of electronic evidence while expanding the territorial extent of applicability and introducing the rules related to protection for citizen. The BSA now explains what electronic evidence is, while covering different types of electronic evidence (documents and recordings) and recognizes how these e-evidence are recorded in this new age (network device, cloud storage, semi-conductors, memories) all the possible new ways of recording evidence and their technologies.
The BSA has given us the opportunity to record evidence through digital mode. Lastly talking about the feature of public friendliness, the BSA states that ‘the accomplice statement can become ground for conviction if it is corroborated’, features like this makes the BSA more public friendly and protect citizen’s interests.
