REFORMING COUNTRY’S CRIMINAL LAW

Indian Penal Code or as we all say IPC, it’s the official criminal code of the ¹Republic of India. In all British Presidencies, it went into effect in 1862, however it was not applicable to the ²Princely states. The IPC specifies particular offenses and lays forth the associated punishments in its sections. There are 23 chapters in total, with 511 sections throughout.

The Union home minister, Amit Shah, introduced a bill in parliament on 11^th August 2023 which said that The Indian Penal Code, 1860 will be replaced by the Bharatiya Nyaya Sanhita Bill, 2023, the ³Criminal Procedure Code, 1898 will be replaced by the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and the ⁴Indian Evidence Act, 1872 will be replaced by the Bharatiya Sakshya Bill, 2023. The paper indicates the change that is taking place in the Criminal law of our country and what all major changes will be there and the reason why the change or a reform is needed in the Criminal law of India. The proposed changes have been successfully put into effect from 1st July 2024. Special attention has been given to the Indian Penal Code.

Keywords – New Criminal Laws, History of criminal laws, Limitations and drawbacks, Changes, Proposed Changes

¹ Official name of India

² A princely state was a nominally sovereign entity of the British Indian Empire that was not directly governed by the British, but rather by an Indian ruler under a form of indirect rule.

³ It is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974

⁴ The Indian Evidence Act, originally passed in India by the Imperial Legislative Council in 1872, during the British Raj, contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law.

1. Introduction

⁵“The criminal justice system, like any system designed by human beings, clearly has its flaws.”

The goal of the ⁶criminal justice system is to protect everyone’s rights and safety by preventing, detecting, prosecuting, and punishing illegal activity. It is made up of various laws, procedures, and organizations. It consists of establishments such as law enforcement agencies, courts, legislatures, and various auxiliary groups including forensic and investigative agencies. “Justice for all” is the goal of the criminal justice system. To maintain law and order throughout the nation, this entails defending the defenseless, prosecuting offenders, and offering a just judicial system. Put otherwise, it ensures the safety of our people. Criminal law is just one tool used by organized societies to safeguard the safety of individual rights and guarantee the group’s existence. In addition, there are the moral principles that are taught in families, schools, and places of worship; workplace and industrial codes; civil rights laws that are upheld by regular law enforcement; and legal recourse through tort litigation. It can be challenging to distinguish precisely between criminal law and tort law, but generally speaking, one can state that a tort is a private injury whereas a crime is thought of as an offense against the public, even though the actual victim may be an individual. Criminal laws are an essential need of the society, if there will be no criminal laws how can a society even work? Rate of crime will exceed rapidly, women and children won’t feel safe anymore and thing can turn into a holocaust. Criminal laws keep the society organized and in a good manner. Criminal laws have been existing from long and still have been improving lately and shaping the society how exactly it needs to be. As there should be developments and changes in everything for it to make sense and to flourish, and so the new criminal laws have been made in India for the betterment of the Country.

Three new ⁷bills that call for a comprehensive revamp of the nation’s criminal justice system were introduced by the union home minister in the Lok Sabha. The trio of Bills are:

1. The Bharatiya Nyay Sanhita Bill, 2023, which will replace the IPC, 1860
2. The Bhartiya Nagrik Suraksha Sanhita Bill, 2023, which will replace the CrPC, 1898
3. The Bharatiya Sakshya Bill, 2023, which will replace the Evidence Act, 1872

⁵ A quote by Ben Whishaw.

⁶ The criminal justice system is composed of the police, the judiciary, and the correctional system.

⁷ A bill is a proposal for a new law, or a proposal to significantly change an existing law.

2. Research Methodology

Extensive research has been carried on for a few days. Primary as well as secondary sources of information were used while writing this research paper. Secondary sources mainly include books, articles, News Papers, research papers and data collected by other researchers which has been given due credit and properly cited. The new as well as old bare acts have been referred for precision.

3. History of Criminal Law in India

From the eighth century A.D. until the fifteenth century, India experienced a string of invasions that ended with the establishment of Mughal Rule. Adhered to a criminal code that categorized all crimes according to the appropriate punishment, which included blood for blood reprisal, special punishments for theft and robbery, and optional penalties. The history of the Indian Penal Code dates back from the British era. The draft of the Indian Penal Code was prepared by the First Law Commission, chaired by ⁸Lord Thomas Babington Macaulay in 1834 and was submitted to Governor-General of India Council in 1835. The drafting was completed in 1850 and the code was presented to the Legislative Council in 1856, but it did not take its place on the statute book of British India until a generation. India’s criminal justice system adheres to the ⁹pre-independence legal protocols set forth by the British.

• 1860 saw the adoption of the Indian Penal Code (IPC), which defined crime and specified suitable penalties. The IPC was created by the ¹⁰country’s first Law Commission. It was created in compliance with the criminal code of England.
• The Code of Criminal Procedure, which was passed in 1861, set forth the guidelines that had to be adhered to at all times. In 1973, this was changed.

⁸ Thomas Babington Macaulay, 1st Baron Macaulay, PC, FRS, FRSE was a British historian and Whig politician.

⁹ The period before independence in a country refers to the time when it was under colonial rule or foreign domination. ¹⁰ The first Law Commission in India was formed in 1955 with its chairman being the then Attorney-General of India, M. C. Setalvad.

4. Limitations and Drawbacks of current criminal law

• High number of Pending Cases – There are more than 4.7 crore cases pending in Indian courts at all levels of the judiciary, according to the ¹¹National Judicial Data Grid. This causes a lag in the administration of justice.
• For a normal person its not easy to understand because of its language and structure.
• There are no provisions for protection for the rights of the accused, they are often subjected to ¹²arbitrary arrests, torture, and prolonged detention.
• The IPC is frequently abused by powerful and prominent individuals to falsely accuse innocent persons.
• In reality, the IPC is frequently used in a biased way, disproportionately targeting and punishing poorer castes and vulnerable populations.
• Lack of Resource and Infrastructure – The criminal justice system is beset by a lack of resources, personnel, and infrastructure.
• ¹³Human Rights Violation – Human rights violations by the criminal justice system are frequently leveled against the accused, victims, witnesses, and other parties involved. Torture in custody, extrajudicial executions, erroneous accusations, unauthorized detentions, forced confessions, unfair trials, and severe penalties are all examples of current events.
• The lack of a thorough victim rights protection mechanism in the criminal justice system may result in ¹⁴re-victimization.
• Outdated Laws – The rules and practices that the British created in 1860 serve as the foundation for the criminal justice system. These laws are outdated and out of step with modern society. They don’t cover ¹⁵contemporary crime trends like organized crime, mob lynching, cybercrime, or terrorism.

¹¹ National Judicial Data Grid (NJDG) is a database of orders, judgments and case details of 18,735 District & Subordinate Courts and High Courts created as an online platform under the e-Courts Project.

¹² Arbitrary arrest and arbitrary detention is the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law or order. ¹³ Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.

¹⁴ To make a victim of (someone) again. “This scam revictimized families who were already suffering from the collapse of the housing market.

¹⁵ contemporary crime is that which is committed in modern, contemporary society.

5. Proposed Changes

Many changes were proposed to be put forward in the new bills. Some of them were heartily accepted and some were rejected too.

Proposed Changes in the Bharatiya Nyay Sanhita Bill, 2023:

• Defines terrorism and offenses such as separatism, armed rebellion against the government.
• repeals the offense of sedition.
• capital punishment as the maximum sentence for mob lynching.
• 10 years imprisonment for sexual intercourse with women on false promise of marriage.
• community service as a form of punishment for specific crimes.
• fixes a maximum limit of 180 days to file a charge sheet.

Proposed Changes in the Bhartiya Nagrik Suraksha Sanhita Bill, 2023:

• promotes the use of technology for trials, appeals, and recording depositions and video- recording of statement of survivors of sexual violence compulsory.
• mandates that police must inform about the status of a complaint in 90 days
• Section ¹⁶41A of the CrPC will be renumbered as Section 35, no arrest can be made without prior approval from an officer at least at the rank of ¹⁷Deputy Superintendent of Police (DSP), especially for offenses punishable by less than 3 years or for individuals above 60 years.
• police consult the victim before withdrawing a case punishable by seven years or more
• allows absconding criminals to be tried in-absentia by court.
• magistrates to take cognizance of offenses based on electronic records such as emails, SMSs, WhatsApp messages etc.
• ¹⁸Mercy petitions in death sentence cases to be filed within 30 days to the ¹⁹Governor and within 60 days to the President.

Proposed Changes in Bharatiya Sakshya Bill, 2023:

¹⁶ A person must be served with notice by the Police prior to his arrest for offences punishable with imprisonment for less than 7 years.

¹⁷ A state-level police officer responsible for managing the police department and maintaining their jurisdiction’s law and order. ¹⁸ Under Article 72 of the Constitution, “the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death”.

¹⁹ The Governor is the Executive Head of the State within the meaning of Article 153 and 154 of the Constitution of India.

• Defines electronic evidence as any information generated or transmitted by any device or system that is capable of being stored or retrieved.
• specific criteria for admissibility of electronic evidence such as authenticity, integrity, reliability etc.
• special provisions for admissibility of DNA evidence such as consent, chain of custody etc.
• recognises expert opinion as a form of evidence such as medical opinion, handwriting analysis etc.
• introduces the presumption of innocence as a fundamental principle of the criminal justice system.

6. Changes made in the new laws

The three laws were approved by the Parliament, and in December of last year, to which President Droupadi Murmu gave her approval.

• The new laws encourage the use of technology and gives more importance to forensic science in investigation, prosecution, and judicial system, as said by Union Home Minister Amit Shah.
• Twenty new offenses are also included in the Nyay Sanhita, including ²⁰organized crime, terrorist acts, ²¹mob lynching’s, hit-and-runs, sexual exploitation of women through dishonest means, snatching, aiding and abetting outside of India, actions that jeopardize India’s sovereignty, integrity, and unity, and the dissemination of false or fake news.
• The death penalty or life in prison has been made mandatory for rapes committed to minors. It is mandatory to serve 20 years in prison or life in prison for gang rapes. In addition, the inclusion of the trading of minor boys as a criminal has rendered the legislation gender-neutral.
• While IPC had 511 sections, its successor BNS has 358; similarly, CrPC had 484 sections, while BNSS has 531. Evidence Act had 166 sections, while BSA has 170.
• ²²Sedition has been eliminated, but treason brought on by violent revolution, separatist movements, and damaging actions will be punished. “Any activity will be considered treason only if it is intended against the integrity, sovereignty and unity of the nation and not just because it is against the government. Anyone can say anything against the government, but if someone interferes with the country’s flag, security, or property, they will go to jail,”
• In Bharatiya Nagrik Suraksha Sanhita, 2023, One notable change can be seen in Section 176 of the Act, which mandates investigation for crimes carrying a punishment of seven

(7) years imprisonment or more. This means that appointed experts will be involved in conducting on site investigations.

• In addition to restorative justice measures like community service or rehabilitation, there are possibilities for set penalties.
• Tried to speed up the trial process by putting a time limit in place and using technology to increase productivity.

²⁰ Organized crime is a category of transnational, national, or local group of centralized enterprises run to engage in illegal activity, most commonly for profit.

²¹ Lynching is an extrajudicial killing by a group. It is most often used to characterize informal public executions by a mob in order to punish an alleged transgressor, punish a convicted transgressor, or intimidate people.

²² Sedition is overt conduct, such as speech or organization, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, established authority.

7. Drawbacks of New Criminal Laws

• The new laws increase the authority of the state, particularly that of the police, the branch intended to monopolize the use of force in the nation, while taking away powers from the people.
• It is a challenge to prevent the police from abusing their authority against citizens in any democracy, especially when those persons are weaker than others and are very much prone to danger and to infringements to there rights. Police arbitrariness is now considerably more likely due to the shift of authority towards the police.
• On offenses against the state, which broadens the definition of sedition and gives the police more leeway to wield it against the opposition to the ruling party in politics. ²³Section 124A of the IPC is not as harsh as the new law due to its broad definition of crimes against the state, discretionary powers granted to the police to initiate arrests without a warrant, and longer detention periods.
• A person can now be detained in police custody for up to 90 days at a time, instead of just 15 days. It would be great if the provision allowing an officer to conduct a preliminary inquiry prior to filing a first information report (FIR) could be implemented, as filing FIRs is currently a common practice of harassment. However, it can be abused to prevent a powerful person from being the target of a false police report that a helpless person files. The police now hold a greater amount of power due to this transfer of power.
• These Bills represent a squandered chance to address the systemic inequities that are ingrained in our criminal justice system. The two versions of the BNS, BNSS, and BSB differ in a few ways, but not in a way that fundamentally alters how criminal law is approached. These Bills solidify colonial logic, where the state’s primary goal in enforcing criminal law is to exert as much control over the populace as possible, rather than decolonizing criminal law.

²³ Sedition.

8. Suggestion & Conclusion

The reform attempts to modernize and simplify the criminal statutes, which are old and convoluted. The change will make the laws more in sync with the Indian spirit and culture, and reflect the changing nature of crime, society, and technology. The change will eliminate the draconian sedition statute under Section ²⁴124A of the IPC, which has been internationally condemned for being used against dissenters and government critics. The reform would also include new offences like as terrorism, corruption, mob lynching, and organized crime, which are currently not sufficiently addressed by existing legislation. The legislation will gender-neutralize some sexual assaults by including males and transgender people as potential victims and offenders alongside women. The change will boost the use of electronic evidence and forensics in investigations, prosecutions, and adjudications. The reform will empower residents by allowing them to file a police complaint at any police station, regardless of where the incident occurred. The reform will also provide effective protection of citizens’ constitutional rights, such as the right to life, liberty, dignity, privacy, and a fair trial.

With the coming up of the new Criminal laws in countries there are things that needs to be done. Awareness campaigns should be put to educate the public about their rights and responsibilities within the criminal justice system to improve police-public relations. Government should Invest in infrastructure, hiring practices, and training to increase the capability of the court system, legal aid organizations, and law enforcement. The administration of justice will be more just and efficient with adequate resources. In order to expedite trials, minimize backlogs, and improve transparency, the criminal justice system should make greater use of technology. Examples of this include digitalized evidence collecting, online proceedings, and video-recorded statements. By ensuring consistency and coherence across the proposed bills and other existing laws. Before putting any reforms into effect, start a more comprehensive consultation process with all the stakeholders, including the general public, to take into account different points of view.

Shrishti Tanwar 1^st Year, LLB

Manipal University Jaipur

²⁴ The expression “disaffection” includes disloyalty and all feelings of enmity