Abstract
Criminal law in India is primarily governed by the Indian Penal Code (IPC) of 1860, which now has been reformed to Bharatiya Nyaya Sanhita (BNS) of 2023 which outlines a comprehensive set of offences and their corresponding punishments. The IPC along with the Bharatiya Nagarik Suraksha and Bharatiya Sakshya Adhiniyam forms the backbone of the criminal justice system. These laws collectively aim to protect rights, maintain public order and ensures justice. Indian criminal law has evolved with many societal and political challenges over the past years like sexual offences, cybercrime, domestic violence and delayed justice. Legislative amendments have aimed to enhance victim protection and streamline judicial process. However, issues such as delay in justice, leads to prolonged trials and backlog of cases. Therefore, reforms are needed to expedite the judicial process and timely justice. Modernization of legal reforms is also needed as the statutes for sexual violence and cybercrime is outdated. So, reforms are needed to address new forms of crime and align legal frameworks with the contemporary societal values. There is gender biasness, reforms should address new laws on this sensitive approach in law enforcement, investigation, prosecution and as well as in judicial proceedings. Reforms can introduce restorative justice practices that focuses on healing for the victims and reintegration for offenders. Indeed comprehensive legal reforms are vital to enhance the effectiveness, fairness and responsiveness of India’s criminal Justice system. Including article of states that anyone who hires, employes or engages a child to commit an offense which includes punishment of not less than three years, which may extend upto ten years, and a fine. This section explicitly includes any kind of exploitation of the child related to sexual exploitation or pornography. Additionally, if the child who commits the offense, the person who hired or engaged the child will be punished as if they had committed the offense themselves. Overall, the Bharatiya Nyaya Sanhita (BNS) represents an effort to create more just an effective legal system in India , reflecting the needs and challenges of modern society which adheres the strict statutes and punishments.
Keywords
Comparative legal analysis, Section 95, New legal reforms, Victim rights, expedited trials , public participation, modernization of laws, compensation, cybercrime.
Historical background
The historical background of criminal law is rich and complex, diversifies the evolution of societies and homosapiens approach towards law and justice. Firstly, the ancient civilization talks about the vedic period where laws were largely derived from the vedic texts emphasizing dharma (moral law) and social duties. Texts like manusmritis, dharamshastra and yajnavalkya codifies law and legal framework aligns with social duties, moral obligations, following with the strict punishments corresponding to various offences. Secondly, if we talk about the medieval India there are various regional variations and Islamic influence, with the advent of local customs and practices led to diverse legal system across different regions in India, Islamic rule came into coexistence with the Hindu legal traditions, influencing the criminal offences and corresponding penalties. Thirdly, if we address to post independence reforms in respect to modern history the colonial period was into existence, the Britishers introduced the Indian penal code, 1860 which codified many laws and established the formal criminal justice system. Traditional laws and judicial system were abolished by the British legal frameworks. The Post Independence reforms (1947 onwards) brings Indian Constitution into legacy which laid the foundation of new criminal laws, fundamental rights and duties and paved way for new criminal justice system. Continued with various evolution in the contemporary issues such as gender biasness, communal harmony and the effectiveness of the criminal justice system. The evolution of the criminal law started with the ancient history which reflects the political, social, traditional and cultural changes which tends to shift from the oral traditions to modern and moral imperatives which be the more structured and codified legal system. This historical backdrop brings more and more evolution in the criminal laws on the new contemporary issues like political, social and religious with their corresponding punishments. The criminal law as Indian Penal Code (IPC) served us for 160 years which now has been replaced by Bharatiya Nyaya Sanhita (BNS), key reforms movements in the new criminal justice system is majorly focuses on the victim rights protection, new offences have been added like cybercrime and hate speech , justice should be timely bounded, reduction of burden in the courts for the minor offences, BNS as in simpler language which is very easy to understand creates mutual awareness in the society. These reform movements reflect the comprehensive effort to create a more just, efficient, and accessible criminal justice system in India, addressing both contemporary issues and societal needs, protect the rights of the individuals.
Recent Changes in the Criminal Law
The Bharatiya Nyaya Sanhita represents a set of legal laws, offences and corresponding punishments. Bharatiya Nyaya Sanhita (2023) proposes significant changes to India’s criminal legal framework. The key changes observed here that definition of offences were explained with the clarity and it was easy to understand , the various offences which were introduced with the corresponding new strict punishments was also clearly explained in the new laws, Section 48 of the BNS provides that a person abets an offense within the meaning of this Sanhita who, without and beyond India ,abets the commission of any act in India which would constitute an offense committed in India . It also provides decriminalization of the minor offences to reduce the burden on the judicial system. Section 69 of the BNS is a new provision added in the new laws states that whoever, by deceitful means or making a false promise to marry woman without any intention of fulfilling the same, and has sexual intercourse with her, such intercourse not amounting to 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. Section 95 of BNS is a new provision states that whoever hires, employs or engages a child below 18 years to commit an offense shall be punished for with imprisonment of either description or fine provided fpr that offenses as if the offense has been committed by such person himself. Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section. Section 226 of the BNS is again a new provision the scope of this section is under section 309 of IPC which is now omitted. It is replaced by Section 226 of BNS. Section 309 of IPC prescribes punishment for any one who attempts to commit suicide and did any act towards the commission of such offence which is now replaced by the Section 226 of BNS prescribes punishment for any one who attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty. Section 304 of BNS is a new provision. IPC did not treat snatching as offence distinct from theft under section 379 of IPC. BNS defines snatching as offence under section 304 which states that 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. All these changes represent shift towards a more on victim- centric approach and strict penalties for various serious offences to deter crime and enhance public safety.
Impact on Society
The Bharatiya Nyaya Sanhita introduces laws and corresponding punishments with enhanced clarity and accessibility. This clarity reduces the ambiguity of legal interpretations, enabling the citizens to better understand their right, obligations and responsibilities. A legal framework can allow the citizens to great adherence to law and seek justice without any fear of convoluted legal jargon. This accessibility can foster awareness and lawfulness among the masses, empowering individuals to engage more actively in other lawful processes and mutually awareness of legal process. The BNS mainly focuses on the victim – centric approach this has majorly helped the victims to come forward and report the crimes instead of healing the wounds caused by the criminal acts. The BNS also decriminalizes certain minor offenses, alleviating the burden on an already strained judicial system. This decriminalization is particularly relevant in a country where legal proceedings often stretch over years, creating a backlog of cases. such as the companies Act 2013 and the Jan Vishwas Act, 2023. By focusing judicial resources on serious crimes, the BNS aims to enhance the efficiency of the legal system, thereby promoting timely justice. This can lead to greater public trust in law enforcement and the judicial process, reinforcing the notion that justice is attainable and responsive. The BNS introduces stricter penalties for crimes against women, reflecting a societal shift towards greater gender justice. By addressing gender-based violence more rigorously, the legislation sends a strong message about the unacceptability of such acts. This focus can empower women to assert their rights and seek justice without fear of societal stigma. As awareness of gender issues grows, this legislative change can contribute to broader cultural shifts that challenge patriarchal norms and promote equality. Another critical aspect of the BNS is its emphasis on restorative justice. By focusing on rehabilitation rather than purely punitive measures, the legislation acknowledges the potential for offenders to reintegrate into society. This approach not only benefits individuals but can also lead to reduced recidivism rates, creating safer communities. By fostering an environment of understanding and healing, the BNS promotes a more humane and effective justice system. The Bharatiya Nyaya Sanhita stands as a transformative initiative that aims to redefine criminal law in India. Its impact on society is multifaceted, touching upon legal clarity, victim rights, gender justice, and restorative practices. As these laws take root, the hope is for a more equitable, efficient, and responsive legal system that reflects the values and aspirations of modern Indian society. By addressing contemporary challenges and prioritizing the needs of all stakeholders, the BNS can contribute to a safer and more just India, fostering a culture where the rule of law is respected and upheld.
Criticisms and challenges
There are various criticisms faced by the Bharatiya Nyaya Sanhita (BNS). The very first criticisms faced by the new laws is retention of the Old Provisions, the new laws retain about 75% of the existing provisions from the old laws such as the IPC and CrPC. This calls into question the claim that the laws have been decolonized since a significant part of the legislation remains unchanged. Increased in the police powers is the another criticisms faced by the new criminal laws in India Specifically, Section 187 of the BNS increases the maximum police custody duration from 15 days to either 60 or 90 days. This represents a substantial extension compared to the limits set under previous laws like the UAPA, POTA, and TADA. There are criticisms that there a vague definition introduced in the new criminal laws. The article mentions the introduction of vague offenses such as “false and misleading information” and “acts endangering sovereignty, unity, and integrity of India.” These sections lack clarity and could lead to discretionary enforcement by police, risking abuse of power. The BNSS allows for the prosecution and adjudication of trials against proclaimed offenders in their absence, which severely restricts the accused’s right to defend themselves—a drastic change from the previous system where only evidence could be recorded in the absence of the accused again this can be the criticisms of trials in Absentia. Section 358 of the BNS states that the IPC will continue to apply to offenses under the IPC, but it remains unclear if this only pertains to offenses committed before July 1 or also to ongoing proceedings, investigations, or remedies related to IPC offenses as of that date. This lack of clarity could lead to legal confusion and inconsistent application in transitional cases. Sections 531 of the BNSS and 170 of the BSA clarify that ongoing appeals, applications, trials, inquiries, or investigations at the time the new legislation takes effect will be governed by the old laws (CrPC or IEA). This provision is crucial for ensuring continuity and fairness in ongoing cases but also introduces potential for interpretative challenges among different courts and jurisdictions, given the major legal shift.
The recent case of police brutality in Odisha, where the fiancée of the Army officer was allegedly assaulted while in custody, has ignited national outrage. But this horrific episode is more than just a singular instance of gender-based violence; it points to systemic flaws in India’s law enforcement . Over 2,000 custodial deaths were reported between 2017 and 2021, yet the number of convictions remains staggeringly low. While the Odisha government’s immediate response — suspending officers and promising investigations — may seem swift, these actions appear more aimed at pacifying public anger than delivering real accountability. Without substantial reforms, such measures merely skim the surface, leaving the entrenched culture of police impunity intact. A 2021-2022 report from the National Human Rights Commission documented over 2000 custodial deaths during that period alone, highlighting the widespread abuse of power. Despite efforts like the Supreme Court’s 2023 directive mandating CCTV surveillance in police stations, incidents like this one expose glaring gaps in accountability and enforcement. The pattern of police misconduct then is not unique to Odisha. National Crime Records Bureau (NCRB) data from 2021 reveals that over 49,000 complaints were filed against police officers, yet fewer than 28% resulted in any disciplinary action.
Comparative Analysis with Global Laws
The criminal law in U.S.A works this way, The court system in U.S.A is segregated into two system namely federal and the state, each of which is independent. The states, possessing the police power have the most general power to pass criminal laws in the United States. The federal government, possessing power granted to it by the Constitution, can pass criminal laws which are related to the powers granted to Congress. The judicial power of the United States shall be vested with one Supreme courts and in inferior courts as per Article 3 of United States Constitution. The criminal process commences when there is infringement of a law and stretches towards an arrest, trial, indictment. An act which is hurtful or sinful can be termed as a crime. A crime which is sacrilegious towards the state is rightfully punishable by fine imprisonment or death. Federal system has court process at national level and each state and territory have their own rules and regulation that exerts influence upon the judicial process. In a crime, the prerequisite are actus reus and mens rea elements. The prosecution in United States must prove each element of the supposed crime beyond a reasonable doubt for convinction as a burden of proof. The U.S legal system has always put together contrast between harm that was caused deliberately and harm by simple negligence or accident. The grand jury consist of 16 to 23 generally chosen from voter registration list, who render decision by majority poll. The District Attorney is given the responsibility to prosecute criminal charges on behalf of people and to represent the people in grand jury procedure In U.S.A there is also special prosecutor’s office against president. The defendant is tried before the court through arraignment. If the accused pleads not guilty, the judge schedules a date for trial, henceforth leading to plea bargaining. U.S.A follows adversarial system of justice, burden of proof is on the state. The accused is said to be innocent until proven guilty. The function of an opening statement generally given by both the prosecution and defence is what he intends to prove,4 to state what evidence will be presented. 5 District attorney has a right to cross-examine the witness. Under Federal Rules of criminal Procedure, the prosecution is allowed to open the argument, defendant is allowed to reply and prosecution is then allowed to reply in rebuttal. Sentencing is imposed by judge at federal level and in most of states WHILE, The court system in India works like the way, the criminal justice system in India is a complex framework designed to maintain law and order, ensure justice, and protect the rights of individuals. It encompasses various stages, including investigation, prosecution, trial, and punishment, all guided by legal principles enshrined in the Constitution and numerous statutes. The Indian criminal justice system is primarily governed by three key components: the police, the judiciary, and the correctional facilities. Police: The police play a crucial role in the initial stages of the criminal justice process. Their responsibilities include maintaining public order, preventing crime, conducting investigations, and gathering evidence. Upon receiving a complaint, the police register a First Information Report (FIR) if the matter is cognizable, meaning they have the authority to arrest without a warrant. The police then investigate the case, which may involve interrogating suspects, collecting physical evidence, and examining witnesses. Once the investigation is complete, they file a charge sheet in court if there is sufficient evidence to proceed. Judiciary: The judiciary is responsible for adjudicating criminal cases. The structure consists of multiple levels: lower courts, sessions courts, high courts, Supreme court. Correctional facilities are once the conviction is made, the focus shifts to punishment and rehabilitation. Prisons and correctional facilities aim to reform offenders while ensuring public safety. The system emphasizes rehabilitation through educational and vocational training programs, which help reduce recidivism rates. The criminal justice system in India is a vital institution tasked with upholding the rule of law and ensuring justice for all. While it is built on robust legal principles, it faces significant challenges that need addressing. Continuous reforms, enhanced training for law enforcement, and public awareness are essential for building a more effective and equitable system that serves the needs of every citizen. By addressing these issues, India can strengthen its commitment to justice and the protection of human rights.
Way Forward
The new reforms required in the criminal justice system to build India’s criminal law more just a specific, efficient and equitable criminal justice system which overhauls the other countris criminal judicature and helps in serving all the citizens effectively and equally. The above issues and loopholes in the criminal justice system in India reveal that it is the need of the hour to reform the criminal justice system in the country. As a consequence of this, the Malimath Committee gave its recommendations in 2004. Another aspect of BNS is that the act completely misses out the on the Assault and rape between persons and rape of the same sex. There was a need to give closure on the martial rape exception which the legislature has chosen not to address. Need for comprehensive support system for the victims, legal counselling and assistance, as this will empower them to visit courts and navigate the justice process more effectively. Legal Aid accessibility as this bridges the gap between the rich and the ones who can’t afford legal services will require increased fundings and resources so that people living in the marginalised sections can access the legal representations vital. Public awareness can be made more effectively as we conduct workshops globally and take chance to visit NGO’s which will create mutual awareness among people all around the states. There are various measures which we can take into consideration for public awareness regarding New Criminal Laws (BNS) through advertisement in the social media platforms, following this in the Televisions, radios and legal podcasts. There a need to solve all these issues rapidly and fill the gaps in the criminal justice system so, that it provides equal and fair Justice.
Conclusion
The criminal justice system is a system that controls the functioning of institutions like the police, prisons, courts, etc., that work towards granting justice to the victim. It is the duty of the state to maintain peace and harmony in society, and this can only be achieved with the proper implementation of laws and the effective criminal justice system of a country. The criminal laws in India were majorly enacted by the British East India Company, but after a lot of amendments were made to the laws. With the advancement of time and technology, new crimes like organised crimes, white collar crimes, cyber crime etc. are increasing, and the government feels the need to reform the justice system to deal with such offences.
Aditi Agarwal
1ST Year, Lloyd Law College