The Centre introduced three new bills in Lok Sabha on August 11 to revamp India's criminal justice system enacted by the British in 1860. There were recurring demands for overhauling the entire criminal justice system as it was archaic and not in tune with contemporary times.
The three bills, the Bharatiya Nyaya Sanhita Bill, 2023, the Bharatiya Sakshya Bill, 2023 and the Bharatiya Nagrik Suraksha Sanhita Bill, 2023 will replace the Indian Penal Code, 1860; the Indian Evidence Act, 1972 and the Code of Criminal Procedure, 1973. The bills have been formulated with the aim of bringing a paradigm shift to ensure speedy justice, integrity of evidence for higher conviction and lower pendency. The bills have been referred to the Parliamentary Standing Committee for further deliberations and the report may be tabled in the next session of Parliament.
The Bhartiya Nyaya Sanhita (BNS) repeals 22 provisions of IPC, proposes changes to 175 existing provisions and introduces nine new sections. It contains total 356 provisions.
The Bharatiya Sakshya Bill (BSB) repeals five existing provisions of the Evidence Act, proposes changes to 23 provisions and introduces one new provision. It contains 170 sections in total. The proposed bill permits witnesses, accused, experts and victims to appear via electronic means.
It also gives electronic evidence the same legal value as documents.
The Bharatiya Nagarik Suraksha Sanhita (BNSS) repeals nine provisions of the CrPC, proposes changes to 107 provisions and introduces ninr new provisions. The bill contains a total of 533 sections.
The legal fraternity at large has been taken by surprise by the introduction of these new statutes. There are mixed views but one common refrain is that outdated laws of colonial era cannot be practised in the modern times when the natures of crime, psychology of criminals and technology have changed drastically.
"The proposal is a welcome move given the stagnancy in some of the criminal laws. Provisions like 'zero FIR' and 'Deemed sanction' will expedite trials. While the courts have been progressive in dealing with socio-economic-cultural aspects of crime, the executive and legislature needed to catch-up. World and society have transformed over the last few decades. Now with these proposals, the much-needed changes finally seem to be getting attention of the executive," says Rajiv Singh, advocate, Patna High Court.
The hallmark of the statutes is that it will bring the much-required changes to the criminal justice system and ensure delivery of justice within a maximum period of three years. New offences such as organised crime, terrorism offences, endangering sovereignty, mob lynching, sexual intercourse by deceitful means and false promise to marry, which were absent in the Indian Penal Code, have been introduced in the proposed statute. The new bill envisages stricter punishment for crimes against women and children, aims to decongest jails by releasing convicts who have served half their sentences and fixes the accountability of police officers for arrests. Timebound trials, the introduction of summary trials for petty crimes as well as community service, the provision for recording the statement of a victim of sexual violence at her house by a woman magistrate are among highpoints of the bills.
"The amendments with respect to major acts were much-awaited. One of the key highlights of the bill which impressed me is the provision of video-graphing at the time of raids and during the process of investigation. This will reduce the number of false cases being registered against innocent persons. The amendment in the Evidence Act with respect to electronic evidence is also a welcome change. Stringent punishment for sexual assault on minors is also a positive modification. Similarly illegal arrests, illegal detention, falsely implicating in criminal cases will be reduced. Cops who indulge in such practices will face the brunt now," says Siji Malayil, sn advocate specialising in criminal law, High Court of Karnataka.
The BNS Bill completely repeals the offence of sedition. The Bill, however, under Section 150, has provisions for 'Offences against the State'. Section 150 of the bill deals with "Acts endangering sovereignty, unity and integrity of India" and provides for punishment in the form of imprisonment ranging from seven years to life. Section 150 of the BNS, in fact, widens the ambit of the offence by including 'financial transactions' and 'electronic communication'. "The introduction of 'acts endangering sovereignty, unity and integrity of India' will give wide and unchecked powers to the police, as such the introduction of the aforesaid offence is draconian. However, a welcome step is the inclusion of phrases 'purposely or knowingly', which requires mens rea or criminal intent," says Prakash Kumar, advocate, Supreme Court and Delhi High Court.
A crucial but necessary change in the BNS is the provision for community service as one of the punishments for petty crimes. Until now, the courts had exercised their discretion to order community service, but now it will be a written law.
Under Section 356 of the proposed BNSS, it has been provided that trial can proceed even if the accused is not present. This will help in trying criminals in absentia, especially the likes of famous absconders such as Dawood Ibrahim, Vijay Mallya and Nirav Modi, to name a few.
Another grey area is Section 187 of the BNSS, where the period for which an arrested person can be sent to police custody has been increased. The police custody can be spread over a period of upto 60 and even 90 days depending upon the offence. "Increasing the maximum period for which the accused can be kept in police custody will make the accused vulnerable and put them in the mercy of police officers," adds Prakash Kumar.
Critical analyses of the bills have begun and will continue in public domain as well as on the floor of parliament, which is imperative for the smooth functioning of our democracy. Eventually, the proposal to overhaul the criminal justice system is a much-needed reform.
(Bharti Mishra Nath is a senior journalist)
Disclaimer: These are the personal opinions of the author