Abstract
The new criminal laws which replaced the old colonial-era laws came into effect on 1st July 2024. The government introduced these laws because the old laws were not able to address the technological and societal shifts that have occurred over the past few decades. Major changes have been bought in by these laws, changing the face of the legal system of our country for better. These changes address issues such as inadequate investigations and prosecutions, backlog of cases, insufficient human resources and infrastructure, and outdated laws and procedures. The aim is to tackle the challenges within India’s criminal justice system with advanced technology and methodologies. Removing the British legacy which was deeply rooted in the previous laws was one of the major objectives behind introducing these new criminal laws. The Indian Penal Code of 1860, Indian Evidence Act of 1872, criminal procedure code of 1973 often reflected colonial interests rather than the needs of the Indian society. The new legal framework is more aligned with the democratic values of India.
Keywords
Legal framework, bharatiya Nyaya Sanhita 2023, Indian penal code 1860, bharatiya nagrik Suraksha Sanhita 2023, criminal procedure code 1973, bharatiya sakshya adhiniyam 2023, Indian evidence act 1872, Indian society, colonial interests, changes.
Introduction
On 1st of July, 2024 the new criminal laws; Bharatiya Nyaya Sanhita 2023, Bharatiya Sakshya Adhiniyam 2023 and Bharatiya Nagarik Suraksha Sanhita 2023, came into effect. These laws replaced the colonial-era criminal laws in December 2023. Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code of 1860, Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act of 1872 and Bharatiya Nagarik Suraksha Sanhita 2023 replaced the Code of Criminal Procedure of 1973. These acts were passed by the lok sabha on the thirteenth day of the winter session with a voice-vote. The Hon’ble President gave her assent to the bills on 25th December, 2023 after which the bills became acts. Various news provisions have been added and many have been removed. The crime of sedition being dropped is an example of the major change brought by the new laws.
The impact of these news laws will be felt by each and every citizen, from law enforcement personnel to law students to general public. Police officials and judiciary are being trained in the new laws under the guidelines issued by the government. The news laws have changed various things, from filling of an FIR to adding terrorism to general crimes. Another major change that comes with these laws is that police custody has been extended from 15 days to 90 days.
The laws are a comprehensive reworking of the old laws to align better with contemporary realities. the inefficiency and inadequacy of the previous laws was often criticized, being called old-fashioned and unresponsive to the problems of the modern society. The aim of the new laws is to modernize the legal framework of our country. Amit Shah, the union minister of ministry of home affairs, said “these laws are made by Indians, for Indians, and by an Indian parliament and marks the end of colonial criminal justice laws”. (shah, 2024)
It is a huge step towards the evolution of criminal laws of India and its efficiency and effectiveness can only be observed post-implementation. The new acts also exhibit a commitment to provide enhanced protection to the vulnerable and marginalized sections of the Indian society.
The need for tech regulations because of the evolving society and the pressure from judicial activism played a big role in the introduction of these laws. The focus is on strengthening the court management system and providing speedy justice to the citizens. Justice will be more accessible and responsive. The laws will refine our criminal justice system, making it more reliable.
Research methodology
This paper is descriptive in nature and the research is based on secondary sources for the deep analysis of the new criminal laws that have been implemented in India. Secondary sources of information like newspapers, journals, and websites are used for research.
Review of literature
the new laws have been treated with praise and critique but can one really ignore the changes it bought and the impact it has on the Indian society. The Chief Justice of India has said in a conference on ‘India’s Progressive Path in the Administrations of Criminal Justice System’ that “I think that the enactment of three new criminal laws by the parliament is a clear indicator that India is changing. India is on a move, and we do need new legal instruments to deal with the current challenges that we envisage for the future of the society.” (CJI, 2024)
Amit shah, the union minister of home affairs said “the provisions are such that many groups would be benefited. Many sections from the British era have been replaced by sections in sync with today”. He has described it as a ‘swadeshi’ legal system. (Shah, 2024)
Impact
India, a country with the population of 1.44 billion, in which almost every person will at least once in their lifetime experience the impact that the new laws have bought. From extended police custody to the offence of sedition being removed, the laws have bought various minor and major changes which will have a significant impact on the citizens. The laws will improve the conviction rates significantly and would also enhance the proper implementation of law and order in the country.
The new laws are designed to raise the conviction rates by a significant amount. This will be done by making the legal process more definitive and well regulated. The new laws promote the integration of technology and law which will play a major role in the law enforcement department and judiciary. The laws ensure that digital and forensic evidence is admissible and credible in court by providing coherent guidelines for collection and presentation of electronic evidence. This plays a crucial role in cases regarding cybercrime where digital evidence is of major importance.
According to section 176 (3) of BNSS (Bharatiya Nyaya Suraksha Sanhita 2023) which replaced the Code of Criminal Procedure of 1973 “forensic teams must go on field visits if the offence is punishable with a jail term of seven years or more” (Bharatiya Nyaya Sanhita 2023). This will ensure to faster resolution of cases and higher conviction rates. Also, it will enhance the quality of the investigation, further it will reduce the likelihood of wrongful conviction as well.
Dr Adish C Aggarwala, Sr. Advocate and Chairman of All India Bar Association and the outgoing president of Supreme Court Bar Association said “The overhaul of these prime criminal laws was long overdue, as many of their provisions had outgrown their purpose and, in fact, were incongruent to the time and objectives for which they had been legislated. The new laws, with the soul and spirit of the new Bharat, therefore brings a sea-change in our criminal justice delivery system” (economic times , 2024)
Provisions of these three legislations are considered to be victim-centric and will lead to speedy trial. Such provisions include timelines for investigation, trial, delivery of judgment, use of technology in service of summons, trial of offence, virtual hearing, provisions of zero FIR.
Bharatiya Nyaya Sanhita 2023 has provisions for ensuring that the victims receive proper assistance and justice. The new provisions also include rehabilitation of victim of serious crimes and providing them with appropriate financial support. Measures such as protection programs and anonymity are also included to ensure that the victim can testify safely.
The law mandates transparency in law enforcement with various guidelines to ensure accountability as well. Body cameras and videography are another crucial aspect in police operations according to the new laws. The aim is to reduce situations of misconduct and abuse of power by law enforcement officers.
Chief Justice Dhananjaya Yeshwant Chandrachud said “these laws are a watershed moment for our society. Because no law affects the day-to-day life of a society like the criminal law” (CJI 2024) The Chief Justice of India lauded the introduction of these laws.
The changes bought by the new laws
The changes brought by the new criminal laws are crucial to understand since we have already established what the impact will be.
The clause 69 of Bharatiya Nyay Sanhita is a new crime which states “whoever, by deceitful means or by making a promise to marry to a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with the imprisonment of either description for a term which may extend to ten years and shall also be liable to fine” (Bharatiya Nyaya Sanhita 2023). This provision has been facing a lot of backlash, experts have been saying that men in relationships are prone to being harassed if the relationship ends on bad terms. People are worried that men will be unfairly treated as a target because of this law.
The Bharatiya Nyaya Sanhita also has introduced a new chapter with the title “Offences against Women and Children”. It has made sexual offences “gender neutral” for the victim and the perpetrator. In clause 96 of the Bharaitya Nyaya Sanhita, the word child has been used instead of ‘minor girl’ which was used in the section 366A of the Indian Penal Code (Bharatiya Nyaya Sanhita 2023)
Another major change is that as per clause 103 of the Bharatiya Nyay Sanhita “when a group of five or more persons acting in concert commits murder on the grounds of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine” (Bharatiya Nyaya Sanhita 2023). This recognizes murder on various such unfair grounds as an offence and is a significant step towards ensuring justice. It addresses the issue of mob lynching.
Community service has been introduced as one of the punishments in section 4 of the Bharatiya Nyaya Sanhita, 2023. It is provided for 6 petty offences such as defamation, petty theft in return of theft money, misconduct in public by a drunken person, etc (Bharatiya Nyaya Sanhita, 2023). The punishment scheme is aimed at achieving ‘Nyaya’ in the society through a reformative approach.
The term ‘sedition’ has been omitted in the Bharatiya Nyaya Sanhita,2023, instead it has been replaced with the wording “acts endangering sovereignty, unity, and integrity of India” (Bharatiya Nyaya Sanhita 2023). Experts are concerned that this could lead to potential over criminalization.
In section 143 of the BNS,2023, ‘beggary’ has been introduced as a form of exploitation and has been made punishable. In section 2 of the BNS,2023, the words ‘child’ and ‘transgender’ have been defined. Also, the definition of ‘movable property’ has been modified to include tangible as well as intangible property.
In the Bharatiya Sakshya Adhiniyam 2023 a drastic change has been introduced which allows electronic and digital records which include server logs, emails, laptops, location information, website content and more. Bharatiya Sakshya Adhiniyam also allows oral evidence to be taken electronically. According of section 57 of this act, electronic and digital records are to be considered as primary evidence. (Bharatiya Sakshya Adhiniyam, 2023)
A big change brought by the Bharatiya Sakshya Adhiniyam is the expansion of secondary evidence in section 58. Secondary evidence is “any form of evidence other than the original document itself”. This change says that written and oral admissions, both will come under secondary evidence. Another major change is regarding better protection of rape victims, where the statement of the victim will be recorded via audio-video means. All these changes further strengthen transparency. (Bharatiya Sakshya Adhiniyam, 2023)
Bharatiya Sakshya Adhiniyam has also modified the definition of documents by including electronic and digital records. The part that has been added is “an electronic record on emails, server logs, documents on computer, laptop or smartphone, messages, websites, locational evidence, and voice messages stored on digital devices”. (Bharatiya Sakshya Adhiniyam, 2023)
The new laws lay emphasis on digital evidence and e-governance. Experts are worried that this might affect the digital privacy of the individual concerned. However, the laws include various provisions related to cybersecurity and data protection.
Bharatiya Nagarik Suraksha Sanhita 2023 which replaced the criminal procedure code has also introduced various key changes. One such change is that it allows first-time offenders to get bail after serving one-third of their maximum sentence, but this is not the case for life imprisonment or multiple charges. Another such change is that medical examiners who are examining rape victims must submit their report within one week.
One of the many significant changes is that judgment must be delivered within 30 days of completion of the argument, extendable up to 60 days. Also, the victims must be informed of the progress of the investigation within 90 days.
The aim of Bharatiya Nagarik Suraksha Sanhita is to streamline and expedite the criminal justice process in India. This act has amended the provisions of bail, powers of magistrate and police authority and seizure of property. It also says that all trials, inquiries and other procedures will be done electronically.
Under the new act, if a proclaimed offender has fled then the trial can be conducted in his absence and the judgment can also be given. The Bharatiya Nagarik Suraksha Sanhita sets fixed time for different legal procedures, such as Section 230 says that the accused and the victim must be given the necessary documents within 2 weeks of the accused appearance. According to Section 232, “the committal proceedings must be done within 90 days of the date of taking cognizance but the magistrate can extend this time limit up to 180 days if the reasons are recorded in writing”. (Bharatiya Nagarik Suraksha Sanhita, 2023)
Section 176 of Bharatiya Nagarik Suraksha Sanhita requires that for crimes with a minimum sentence of 7 years, a forensic investigation must be done to ensure that that wrongful conviction does not happen (Bharatiya Nagarik Suraksha Sanhita, 2023). In the case in which a state does not have appropriate forensic tools, it can find and use those of another state. This whole procedure must be recorded using electronic devices.
Also, the post of the judicial magistrate of the third class has been abolished along with the post of metropolitan magistrate and assistant session judge. Now there are 4 kinds of judges – judicial magistrate of second class, judicial magistrate of first class, sessions judge and executive magistrate.
How the new laws are different from the previous ones
The new laws are more focused on providing justice rather than punishing offenders. The old laws were made with a colonial mindset, focusing more on oppressing rather than serving justice.
In Bharatiya Nyaya Sanhita, chapter V talks about offences against women and children whereas in the Indian Penal Code, the crimes against women and children were scattered throughout. As opposed to the 511 sections of the Indian Penal Code 1860, Bhartiya Nyaya Sanhita has only 358 sections.
Snatching, which was not an offence in the Indian Penal Code 1860, has been introduced as an offence in the BNS 2023. Earlier the police officials treated it as either theft or robbery but the section 304 of BNS has made snatching an offence.
The fines that were mentioned in the Indian Penal Code of 1860 were of very low ranges, from Rs.10 to Rs.1000. In BNS 2023, the terms of imprisonment for 33 offences have been increased suitably, and mandatory minimum punishment has been introduced in 23 offences and the amount of fine has been increased in 83 offences.
Under the Indian Penal Code, there were interpretation clauses from sections 6 to 52A instead of definition clauses. But under the BNS these sections have been grouped. The new act has been trying to get rid of all the British influence in the criminal laws. (the Indian Penal Code , 1860) (Bharatiya Nyaya Sanhita, 2023)
In the old laws, there were many colonial terms such as ‘British calendar’, ‘British India’, ‘justice of the peace’, ‘queen’, etc, which have been deleted in the new act. In Bharatiya Sakshya Adhiniyam, the word ‘advocate’ has replaced many words such as ‘vakil’, ‘barrister’, and ‘pleader’.
In Bharatiya Sakshya Adhiniyam, 23 sections have been modified, 5 sections have been repealed and 1 new section has been added, in total, there are 170 sections in the new law as compared to the old law which had 167 sections. The provision for proven fact, police confession and admissible evidence have been retained in the new law as were present in the Indian Evidence Act, of 1872.
Section 65B of the Indian Evidence Act, 1872, which talked about the necessity of a certificate for electronic records has been modified, according to it electronic records and other records are on the same pedestal now. The provisions related to ‘leading questions’ have also been modified. (The Indian Evidence Act , 1872)
The Bharatiya Nagarik Suraksha Sanhita expands the Criminal Procedure Code’s police powers to seize property. According to CrPC, law enforcement officials were allowed to seize the property that was believed to be stolen or found in strange situations but according to BNSS, the law enforcement officials can now seize things that can not be moved as well. (Criminal procedure code, 1973)
Section 64 and section 432 of the Criminal Procedure Code stated that “summons could be only served to adult male members of the family and the suspension or remission petitions were subject to higher scrutiny only if filed by males over the age of 18”, these provisions have been amended in the new law. In section 66 and section 474 of Bharatiya Nagarik Suraksha Sanhita, the word male has been moved to ensure the gender-neutral application of the law. (Bharatiya Nagarik Suraksha Sanhita, 2023)
BNSS broadens the scope of legal aid provision. It has been extended to trials or appeals before any court as opposed to the previous law in which it was limited to trials before the court of sessions.
According to the new laws, any person can file a zero FIR at any police station regardless of its jurisdiction. Police complaints can be registered online and the summons can be served electronically. This is a major step forward towards intertwining technology and law.
Conclusion and Suggestions
The aim of the new laws is to modernize the criminal justice system of India by embodying technological advancements and contemporary legal standards. It must be on equilibrium with respect for traditional values that are entrenched in the Indian society. Removing the British legacy which was deeply rooted in the previous laws was one of the major objectives behind introducing these new criminal laws. The Indian Penal Code of 1860, Indian Evidence Act of 1872, criminal procedure code of 1973 often reflected colonial interests rather than the needs of the Indian society. The new legal framework is more aligned with the democratic values of India. A key objective of replacing the criminal laws was to make the laws simple, adequate and accurate. In modern times, there was a need to make the laws gender neutral which was fulfilled by the changes that were introduced. Women and child related laws have been kept as a priority.
These new that have come into effect would only be successful if the people in charge of implementing them will adapt to them. Investment must be done in capital building of the forensic experts, proper training must be conducts of law enforcement officers, and investment must be done in our judicial system.
Reference list
Shah 2024, deccan herald, new criminal laws come into effect, usher in widespread changes in justice system. Available at https://www.deccanherald.com/india/new-criminal-laws-come-into-effect-usher-in-widespread-changes-in-justice-system-3087402
CJI 2024, livemint, ‘India is changing’: CJI Chandrachud says enactment of three new criminal laws ‘signify watershed moment’. Available at https://www.livemint.com/news/india/india-is-changing-cji-chandrachud-says-enactment-of-three-new-criminal-laws-signify-watershed-moment-11713605416334.html
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Available at https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf
Economic times, 2024, as new criminal laws come into effect, here’s what experts think of their impact on legal system. Available at https://economictimes.indiatimes.com/news/india/as-new-criminal-laws-come-into-effect-heres-what-experts-think-of-their-impact-on-legal-system/articleshow/111391882.cms?from=mdr
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Bharatiya Nagarik Suraksha Sanhita 2023, available at https://www.mha.gov.in/sites/default/files/2024-04/250884_2_english_01042024.pdf
Indian Penal Code 1860, available at https://lddashboard.legislative.gov.in/sites/default/files/A1860-45.pdf
Indian Evidence Act 1872, available at https://www.indiacode.nic.in/bitstream/123456789/15351/1/iea_1872.pdf
Criminal Procedure Code 1973, available act https://www.indiacode.nic.in/bitstream/123456789/15272/1/the_code_of_criminal_procedure,_1973.pdf
Alishba Sheikh,
Hidayatullah National Law University.