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EVOLUTION OF CRIMINAL LAWS: LEGACY VS. CRIMINAL LAW 2.0

Publications, Research paper

ABSTRACT

“Law without Justice is a wound without a cure.”  – William Scott Downey

Criminal laws are a vital part of any society’s quest for justice. In India, the legal landscape governing criminals is grounded by constant laws that are the Indian Penal Code, Indian Evidence Act and CrPC which were enacted in the year 1860, 1872 and 1898 respectively. However, as time passed and changes took place in society these laws faced certain hitches and to refurbish India’s Criminal system parliament decided to replace them with Bharatiya Nyaya Sanhita (BNS), Bharatiya Sakshya Adhiniyam (BSA) and Bharatiya Nagarik Suraksha Sanhita (BNSS) which will come into force from July 1. 

This paper will analyze news laws and contrast them with the traditional ones. It tries to offer insights into the most likely repercussions for India’s justice administration by evaluating the positive and detrimental developments brought about by the legislative overhaul. The presentation will examine the various ramifications of the legal paradigm shift, ranging from improving procedural efficiency to addressing evidence management inadequacies and increasing citizen safety.

KEYWORDS

Indian Penal Code, Indian Evidence Act, Code of Criminal Procedure, Bharatiya Nyaya Sanhita, Bharatiya Sakshya Adhiniyam and Bharatiya Nagarik Suraksha Sanhita.

INTRODUCTION

It is an undeniable fact that crime laws are the basis of our justice system. The three criminal laws of India i.e., the Indian Penal Code, the Indian Evidence Act and the CrPC are like three pillars of India that impact every Indian. The Indian Penal Code passed in 1860 during the British colonial period and was introduced by the 1st law commission which was led by Lord Thomas Babington Macaulay. The Indian Evidence Act was also passed in 1872 during the British colonial era. It was enacted to set out the law of evidence during judicial proceedings in India. The Code of Criminal Procedure was endorsed in 1973 and replaces Code of Criminal Procedure of 1898. The CrPC of 1973 provides the procedural law for the administration of criminal justice in India. But in the last 100 years the nature of crimes, method of crimes and criminals all have been drastically changed. E.g. Today our lives have become digitally oriented there are new crimes like cybercrime, online harassment, etc. These three legal frameworks form the backbone of criminal law and procedure in India, and they have been amended and updated periodically to keep pace with the evolving legal landscape. Due to the complexities of the modern world, Parliament has decided to replace these three laws with three new transformative criminal bills, which are named Bharatiya Nyaya Sanhita, Bharatiya Sakshya Adhiniyam and Bharatiya Nagarik Suraksha Sanhita. 

This research paper focuses on comparing and analyzing Criminal Laws till now and Criminal laws 2.0. The research will include historical trends, current issues, technological breakthroughs, and legal and ethical considerations. By contrasting the growth of criminal laws thus far with the new framework of Criminal Laws 2.0, the study hopes to offer useful insights into the changing dynamics of the criminal justice system.

RESEARCH METHODOLOGY

The research methodology involves using a descriptive approach and case studies to compare the Criminal laws 2.0 from (IPC), IEA and CrPC respectively and their legacy in India’s criminal justice system. I’ll gather secondary data from legal documents, case laws, and existing literature to provide a comprehensive analysis. This methodology aims to critically assess the effectiveness of these laws and identify areas for improvement in India’s criminal justice framework.

REVIEW OF LITERATURE

Some publications and research papers are available, such as “ Navigating Through Criminal Law Reforms” which explores diverse fields like what are criminal laws, why need to change and comparison. This review of literature provides an overview of the laws, changes, merits and demerits, and legal frameworks. It synthesizes comparisons between existing laws and new laws and sets the stage for further exploration and analysis in the research paper.

Why new laws?

Parliament has passed new laws but the question that emerges is what is the need for new laws what are the problems with existing ones? For this, we need to focus on the back a little bit. In the British Period, four law commissions were set up to make laws on different subjects. The first law commission had Thomas Babington Macaulay as the first law member and 3 other members who made really important laws for India. After this, the subsequent legal committees were also constituted for 1863, 1861 and 1879 years respectively. These commissions made some important laws looking at India’s conditions in 50 years. Their contributions were so important that even in today’s day of India important laws like the Contract Act, Transfer of Property, and CrPC are still followed. But these laws were made by the British and their main objective was to exploit the resources of India and to stop any type of revolt from happening. The new legislation, according to Home Minister Amit Shah, are in line with the spirit of the Constitution and were created with the welfare of the populace in mind. “Under the leadership of PM Modi, I have come to bring some major changes to the 150-year-old three laws which governed our criminal justice system,” said the home minister when proposing the three illegal acts. He noted that Criminal laws 2.0 are people-centric, whereas the laws from the British era were designed to safeguard foreign rule. The Minister stated that the new Bills include the modifications suggested by a legislative committee. According to him, only five sections of the reintroduced Bills have changed.

BHARATIYA NYAYA SANHITA V/S INDIAN PENAL CODE 

In order to simplify laws pertaining to offenses and punishments, the IPC, 1860 was repealed by the BNS, 2023. The primary criminal legislation, the Indian Penal Code is replaced with the Bharatiya Nyaya Sanhita, 2023. A part-time volunteer work requirement is one of the sanctions for minor infractions. The Indian Penal Code 1860, which addresses crimes involving the government, possessions, human beings, law and order, slander, and the safety of the public, is the primary criminal statute in India. Many changes have been made within a centuries-old Indian Penal Code over decades in order to add fresh offenses, change existing charges, and adjust the severity of penalty. Furthermore, the IPC has been proposed to be amended on violations involving women, tampering of a meal, and the death penalty in several legal committee reports. All of the Indian Penal Code’s 576 Parts are organized into 26 chapters, including additions or changes. The new law, with its 19 chapters and 356 Sections, has a better framework than the old complicated one. New law proposes to add 8 new chapters and remove 22 IPC rules, comprising 175 existing needs.

POSITIVE CHANGES 

A number of the changes made to the BNS are praiseworthy, including the overview of volunteer work as a penalty for minor infractions, use of technology and its integration into the severe statutes, and upholding consistency in the usage of definite terms. However, the implementation of these regulations would depend heavily on building the judicial infrastructure and educating staff members like magistrates and police officers.

  1. STRICT LAWS FOR SEXUAL OFFENCES

The Bharatiya Nagarik Suraksha Sanhita (BNS) imposes severe punishments, including the death sentence for gang rape of kids under age of eighteen and an increased sentence of ten years of hard imprisonment for rape. It signals a significant legislative reform by protecting the names of survivors of sexual assault under Section 72 and addressing offenses against women and children under Section 69. 5

  1. SEDITION LAW 

The “Sedition law will be completely repealed” is most out looked. Section 150 of the anticipated repeal of the Sedition Law will still apply to activities that endanger India’s harmony, and honor. “Anyone who, intentionally or knowingly, engages in or attempts to engage in secession, armed rebellion, or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine,” reads Act 150 in the Brain Injury and Suicide Prevention Act. 5

  1. CONTEMPORARY LANGUAGE

The BNS has substituted old-fashioned and offensive terms such as “lunatic person” or “person of unsound mind” to “person with mental illness and “having an intellectual disability”. 

NEGATIVE CHANGES

As was already indicated, the inclusion of volunteer work as a penalty is one of the improvements brought about by BNS. However, the Bill does not specify exactly what constitutes community service. Sentence disputes cannot be completely ruled out in the absence of such a prescription. Gender equality in sexual assault as well as rape laws refers to the notion that the penal code should recognize that men, women, and transgender people can all conduct and become sufferers of abuse. The Amendment Bill, which proposed significant revisions to make Indian criminal laws gender-neutral, was filed as a private member’s bill in 2019. However, BNS, like the IPC, solely acknowledges women as rape and sexual assault victims and men as those who commit the crimes. 5

BHARATIYA SAKSHYA ADHINIYAM V/s INDIAN EVIDENCE ACT

One important piece of legislation that influences the idea of evidence admissible in court is the Indian Evidence Act of 1872. The Act was modified in 2000 and 2013 to better meet the demands of the populace in the modern era. Furthermore, the Law Commission made numerous recommendations to the IEA regarding issues such as cross-examination, government privilege in evidence, custodial violence, and admissibility of police confessions. August 11, 2023, the MHA introduced the Bharatiya Sakshya Bill, 2023 in the Lok Sabha with the goal of enhancing the justice delivery system. Following assent, the measure is enacted as the BSA. Truth-finding during a trial is greatly aided by the Indian Evidence Act. It is an essential step in the legal procedure. The Indian Evidence Act has been amended in recent years to better meet the needs of the public today. In spite of this, societal shifts and technology breakthroughs have outpaced the current IEA. As a result, the Bharatiya Sakshya Adhiniyam, 2023, anticipates bringing technology and expedition into harmony during the legal proceedings.

POSITIVE CHANGES

  1. DOCUMENTARY AND ORAL EVIDENCE

 A document is defined by the IEA as writings, maps, and caricatures. Electronic records will likewise be regarded as documents, according to the BSB2.  Primary and secondary evidence are both included in documentary evidence.  The unique text also its components like computerized accounts and film footages, are considered primary proof.  Oral testimony with written records substantiate the original’s contents are considered secondary evidence.  The categorization is retained by the BSB2. Oral testimony may be presented electronically thanks to the BSB2.   This would allow victims, accused parties, and witnesses to testify electronically.

  1. DIGITAL RECORDS AS EVIDENCE

Information from printed electronic records or data stored on computer-generated optical or magnetic media is considered documentary evidence.  Such data could have been processed or stored by several computers working together or separately.  According to the BSB2, digital or electronic records are just as legally binding as paper records.  It broadens the definition of electronic records to encompass data kept on semiconductor memory or on any kind of communication device, such as a laptop or smartphone.  Email correspondence, server logs, smartphone data, location-based proof, and voicemails will all be included in this. 9

  1. JOINT TRIALS

When multiple people are tried for the same offense, it’s referred to as a joint trial.  According to the IEA, mutual hearing, confession from a suspect party that as well impacts the additional suspect party remains confirmed, then can be interpreted represents a declaration of guilt towards all of them.  This provision is expanded upon by the BSB2. It states that a multi-person trial will be conducted as a collaborative hearing if one of the defendants is resisting arrest or has not responded to an arrest order. 9

NEGATIVE CHANGES

  1. The BS Act may be used to suppress disagreement or target out underprivileged areas by making it more difficult for the accused to present their case in court.
  2. The terms of the Act may unintentionally make it easier for people who might be not guilty to face being unfairly condemned because they lessen the demand on prosecutions to present highly dubious proof. 10

BHARATIYA NAGARIK SURAKSHA SANHITA V/S CrPC

A systematic legislation known as the CrPC or Code of Criminal Procedure was made to manage the IPC, Indian Penal Code. CrPC controls the method of looking into crimes, giving an order to take in custody, how to prosecute them, and how to apply for bail. In order for addressing the issue of India’s numerous legal systems in 1861 first time CrPC was passed. Former legislation was annulled as well as replaced in 1973 with the current CrPC, which included the introduction of anticipatory bail. It was revised in 2005 to include clauses pertaining to rights of arrested individuals and plea bargaining. The Supreme Court has changed how the CrPC is applied and interpreted it throughout time.  These include the following: requiring the filing of a formal complaint if it pertains to a cognizable crime; allowing detentions in cases where sentence is not as much of than 7 years in prison; and guaranteeing that bail for is unassailable right without room for discretion. The Court has also rendered decisions on procedural matters, including setting rules for questioning in custody and stressing the significance of prompt trials. But issues with the criminal justice system still exist, such as backlogs in cases, lengthy trial periods, and worries about how impoverished populations are handled. 

In response to the demands of seven decades of democracy, the Bharatiya Nagarik Suraksha Sanhita, is legislative plan to restructure India’s criminal justice system. It aims to solve the major problems with the current system, such as low conviction rates, excessive case pendency, delays in the administration of justice, and inadequate use of forensics and technology. The poor are disproportionately affected negatively by these problems. CrPC would be substituted and Bharatiya Nagarik Suraksha Sanhita, which would place an emphasis on citizen-centric procedures, use technology for crime investigation, electronic communication for legal procedures, and set deadlines for investigation, trial, and judgment will take place. By requiring the digital provision of FIR copies and investigation updates and guaranteeing victim hearings in major cases, it seeks to enhance victim participation in the legal system. The act streamlines the magistrate system, requires speedy trials for minor offenses, and allows for electronic interrogations of accused individuals to advance the effectiveness with accessibility of the legal arrangement.

POSITIVE CHANGES

  1. REMOVAL OF INSENSITIVE TERMS

A modification in BNSS Sec. 357 was done, which corresponds to Section 318 of the Code of Criminal Procedure. Of particular note is the introduction of Chapter XXVII or 27 of BNSS, which replaces Chapter XXV or 25 of CrPC. The phrase “mental health establishment” has appropriately replaced the term “lunatic asylum.”

  1. FORENSIC INVESTIGATION:  

Forensic examination is required under the BNSS2 for offenses carrying least sentence of 7 yrs in prison. For gathering forensic evidence in these situations, forensic specialists will travel to crime scenes and document the proceedings on a cell phone or other technological equipment.  A state must use a forensics facility in another state if it doesn’t have one. 11

NEGATIVE CHANGES 

The necessity of maintaining control over the indigenous people defined the colonial approach to the administration of criminal justice in India. This resulted in the courts and police being given undue discretion and authority, establishing a “Police State.” Unfortunately, the BNSS falls short of breaking significantly with this colonial heritage. The BNSS essentially leaves Section 144 intact, maintaining the magistrate’s extraordinary power to issue urgent orders, with the exception of the oddly removed Section 144A, which gave the magistrate the power to forbid carrying weapons during any drill or procession (if preventing violence or crime is the goal). Additionally, it has increased the police’s ability to prevent crimes by including a clause that permits the arrest or expulsion of anyone who disobeys or resists a police officer’s orders (Clause 172). By permitting the 15-day custody period to be spread out over 40 or 60 days, depending on the seriousness of the offense, the rule has further expanded the range of situations in which a person may request police custody. This has strengthened the police’s discretionary powers when requesting remand, giving rise to grave worries about possible abuse.

METHOD

This study will compare and contrast Criminal statutes 2.0 with the current Criminal Justice statutes. This work was produced following a thorough investigation, and it includes citations from numerous journals, newspapers, blogs, and publications. Most of the information has come from the websites Free Law India and Legal Service India, which are both online resources for anyone interested in law. This article aims to provide light on the development and effectiveness of the legal frameworks governing criminal justice, as well as future advancements and innovations found in Criminal Laws 2.0, by integrating a range of facts.

SUGGESTIONS AND CONCLUSIONS

The Criminal Justice system is the structure of Indian laws. These three laws are the backbone of criminal procedure and are critical for justice. Despite being amended IPC, CrPC and IEA faced some complexities in the modern world due to changes in technologies, the nature of crimes and criminals etc. For these, they decided to transform with BNS, BSA and BNSS. In these laws, there were some major and minor changes introduced. Some laws remained unchanged, while others were enacted or repealed. They had various virtues and vices. They face some problems the same existing ones like they and not gender neutral which is one of the major problems that still needs work. However, as stated correctly, establishing laws and enforcing them are two very distinct processes, therefore better judicial entities are also required for implementation. These laws have the potential to affect our country’s law students, lawyers, advocates, judges, and a variety of other individuals, so they must be properly introduced. 

AUTHOR

  • KHUSHI GUPTA
  • JINDAL GLOBAL LAW SCHOOL