The Three New Criminal Law Bills: Modifying the wholecriminal law system of India

Abstract

The Indian legal landscape stands at the transition of significant change with the proposal of three new criminal law bills aimed at replacing the current foundational laws: the Indian Evidence Act of 1872 (to be substituted by the Bhartiya Sakshya Bill), the Code of Criminal Procedure of 1973 (to be replaced by the Bhartiya Nagrik Suraksha Sanhita Bill), and the Indian Penal Code of 1860 (to be replaced by the Bhartiya Nyaya Sanhita Bill).[1] These bills are presently under review in the Indian Parliament. It is essential to critically assess the potential implications of these new criminal law bills on the existing legal framework and the broader criminal justice system in India. The introduction of these bills signifies a pivotal moment in the evolution of India’s legal system, promising fundamental changes to the structure and operation of criminal law. This proposed overhaul necessitates a comprehensive exploration of the potential impacts that these new bills might have on the administration of justice and the rule of law in the country. Given the historical significance of the Indian Evidence Act, the Code of Criminal Procedure, and the Indian Penal Code, understanding the implications of this transition requires careful analysis of the specific modifications envisioned within each of these bills.

This research aims to closely examine the implications of these new criminal law bills within the Indian legal system. Furthermore, it endeavours to anticipate and document the potential consequences, both positive and negative, to provide a foundation for informed discussion and decision-making around these crucial legal reforms.

Keywords

Indian Criminal Law, Bharatiya Nyaya Sanhita Bill, Bharatiya Nagarik Suraksha Sanhita Bill, Bharatiya Sakshya Bill, Legal Reforms, Indian Parliament

 

Introduction

When the Indian Penal Code was enforced on 1st January 1862, almost one and a half years after its enactment, no one would have even dreamt of any kind of “cybercrime”. Justice B R Gavai of the Supreme Court rightly said that Law is not static but dynamic[2], it changes with time because society changes with time. In the past century, industrial, financial and commercial growth has shown new heights, likewise, crimes have also taken new shapes and forms which the old laws no longer can keep pace with. Consequently, it seems that these new bills are the need of the hour. The main 3 factors of a good criminal law are- 1. Whether the justice was done timely? 2. Whether the accused was subjected to a fair trial? 3. Whether the victim receive fair compensation?
To understand this piece better, it is important to have a basic understanding of these 3 laws that are presently applied. The Indian Penal Code tells what a crime is, what are its essentials and what is the punishment for that crime. The code of Criminal Procedure tells what procedure has to be followed if a case is criminal, for example, the procedure of Bail, Arrest, Investigation, Trial, etc. The Indian Evidence Act, as the name suggests, provides all the provisions regarding how evidence is to be produced, on whom the burden of proof lies, what evidence is admissible in court, etc. For example, B murdered C, here, the Indian Penal Code describes what essentials make a crime ‘murder’ and what punishment is to be given, Code of Criminal Procedure tells what kind of trial procedure is to be used for murder and The Indian Evidence Act tells what kind of proof is admissible to prove murder.

Research Methodology

This study seeks to conduct a thorough and insightful examination of the possible effects of three new criminal law bills on the Indian legal system. The research will utilize primary sources such as government documents, official legislative proposals, and parliamentary debates related to the introduction and discussion of the new criminal law bills in the Indian Parliament. These primary sources will be used to understand the specific language, scope, and objectives of the proposed laws and the debates surrounding the need for such significant legal changes. Additionally, the study will analyze secondary sources, including scholarly articles and expert commentaries, to gain valuable insights into the current legal framework, historical developments, and perceived shortcomings in the existing criminal laws. By incorporating both primary and secondary sources as well as expert opinions, this research methodology aims to establish a comprehensive framework for examining and assessing the potential impact of the proposed criminal law bills, enabling a detailed and well-informed discussion on the forthcoming legal reforms in India.

Review of Literature

The examination of existing literature on the Indian criminal legal system and recent legislative proposals for legal reforms is crucial for obtaining a thorough understanding of the context in which the three new criminal law bills are being introduced. This review is fundamental for evaluating the potential effects and consequences of the proposed bills on the established legal framework and the broader landscape of criminal justice in India.

Academic Articles: A critical analysis of prevalent scholarly articles focusing on Indian criminal law, legal reforms, and comparative legal frameworks will offer valuable insights into the current challenges, gaps, and strengths of the existing legal system. Articles from distinguished legal scholars and practitioners will be examined to understand the historical context, legal interpretations, and practical implications of various provisions within Indian criminal laws.

Legal Commentaries: Alongside scholarly articles, legal commentaries from respected jurists, legal analysts, and law practitioners will be studied to comprehend the practical application and perceived shortcomings in the current criminal law provisions. These commentaries often provide valuable practical perspectives and observations based on real-world legal scenarios, contributing to a more comprehensive understanding of the subject

International Comparative Studies: In addition to the national domain, comparative studies with legal frameworks from other countries will be reviewed to draw parallels, differences, and lessons for potential application within the Indian legal system. This comparative analysis will help assess the potential effectiveness and global best practices relevant to the proposed reforms, enriching the discussion with diverse perspectives and experiences.

By thoroughly examining and synthesizing insights from these diverse sources, this literature review aims to uncover the multifaceted aspects of Indian criminal law and the potential impact of the proposed bills, laying the groundwork for an informed and comprehensive analysis of the impending legal reforms.

Method

The approach utilized in this study aims to provide a thorough examination of the current criminal justice system in India, a comparative evaluation of the proposed bills with the current laws, and an investigation into the potential socio-legal ramifications.

Assessment of Current Legal Framework: The initial stage of the approach involves a detailed assessment of the Indian Evidence Act of 1872, the Code of Criminal Procedure of 1973, and the Indian Penal Code of 1860. This assessment will concentrate on comprehending the historical development, judicial interpretations, and practical applications of the existing legal provisions, to identify the strengths and weaknesses of the current criminal justice system.

Analysis of Proposed Bills: After the evaluation of the existing legal framework, an analysis of the specific provisions outlined in the proposed bills – the Bharatiya Nyaya Sanhita Bill, 2023; the Bharatiya Nagarik Suraksha Sanhita Bill, 2023; and the Bharatiya Sakshya Bill, 2023 – will be undertaken. This analysis will scrutinize the proposed changes, omissions, and additions within the bills, providing insight into the intended modifications to the Indian criminal law system.

The approach also involves a comparative evaluation of the proposed bills with the existing legislation and international legal frameworks. The final stage of the approach entails a thorough analysis of the potential socio-legal impacts of the proposed bills.

The Indian Penal Code of 1860

The initial version of the Indian Penal Code was formulated by the First Law Commission, under the leadership of Thomas Babington Macaulay. Although the first draft was presented to the Governor-General in council in 1837, it underwent further revisions and amendments over the course of two decades. The final drafting of the code was completed in 1850 and subsequently presented to the Legislative Council in 1856. Before the arrival of the British, the prevailing penal law in India was largely based on the Mahomedan law.[3] During the early years of British administration, the East India Company refrained from intervening in the country’s criminal law. However, in 1772, under the administration of Warren Hastings, the Company began to make alterations to Mahomedan law, and this continued until 1861. Until the Indian Penal Code came into effect in 1862, Mahomedan law undeniably formed the foundation of criminal law, except in the presidency towns.[4] The era of the administration of Mahomedan criminal law in India endured for a significant period and has contributed numerous terms to the lexicon of Indian law.

The two most frequent criticisms that this code faces are that it is not gender-neutral and not very well structured. It is claimed that the new code improves this law on these two aspects. Other than these two points, the following are the provisions of the Indian Penal Code that are often criticized-

  1. Section 377- Unnatural offence: This provision, in addition to other sections, penalized consensual sexual activities between consenting adults of the same gender. Over time, there were numerous calls for the decriminalization of this particular provision that penalizes homosexuality. Ultimately, the Supreme Court, in the case of Navtej Johar[5], mandated and decriminalized the portion of this provision that penalized consensual acts of this nature.
  2. Section 309- Attempt to commit suicide: This section of the law imposes a maximum penalty of one year for the act of attempting suicide. Despite a longstanding recommendation from the Law Commission to remove Section 309 from the legal code and decriminalize attempted suicide, no such amendment has been made.[6] However, the use of this provision has decreased with the implementation of the Mental Healthcare Act, 2017. According to Section 115(1) of the Mental Healthcare Act, 2017, individuals who attempt suicide are presumed to be under severe stress and are not to be prosecuted under Section 309 of the Indian Penal Code. Nevertheless, reports of the continued use of Section 309 are widespread across the country, indicating a need for law enforcement authorities to be educated on this issue.
  3. Section 124A- Sedition: This section imposes a serious imprisonment for life as the maximum punishment for whoever by words, brings or attempts to bring into hatred against the Government. Although Explanation 2 of this section clarifies[7] that criticizing the Government is not sedation, but it is not impossible to misuse this section.

The Indian Penal Code has a total of 576 sections (including all the amendments) while the new bill has only 356 sections. The key highlights of the new bill are given as follows-

Provisions that are removed completely[8]

S.noSectionDetail
114Government Servant
218India defined
329AElectronic record
450Section defined
553AConstruction of reference to transportation
6124ASedition
7153AAPunishment for knowingly carrying arms in any procession
8254Delivery of coin as genuine, deliverer not knowing to be altered
9264 to 267Offences related to weights and measures
10309Attempt to commit suicide
11310 to 311Thug and its punishment
12376DA & 376DBGang rape of a woman under the age of 16 & 12 respectively
13377Unnatural sexual intercourse
14444Lurking house-trespass at night
15446Housebreaking at night
16497Adultery

Provisions that are added in the new bill[9]

S.no.SectionDetail
148Abetment outside India for offence in India
269Sexual Intercourse by deceitful means or false promise to marry
370 (2)Gang Rape on woman under the age of 18
493Hiring, employing or engaging a child to commit an offence
5101 (2)Punishment for mob lynching
6104 (2)Punishment for not reporting a negligent act causing death or negligently causing death
7109Organised Crimes
8110Petty organized or organized in general
9111Offence of terrorist act
10115 (3)Grievous hurt causing permanent disability
11150Acts endangering the sovereignty, unity and integrity of India
12224Attempt to commit suicide to compel or restraint exercise of lawful power
13302Snatching

It can be seen that various new crimes that were not there in the old act are now specifically codified in the new bill. Along with this, the punishment of community service is also added in the new bill which will greatly affect the society, help the situation of overcrowding in prison and invoke a sense of “helping and contributing to the society” in the perpetrator.

The Indian Evidence Act of 1872

In 1835, the initial effort to systematize the regulations of evidence was made through the passing of the Act, 1835. Subsequently, approximately eleven legislations were enacted between 1835 and 1853 to address the law of evidence. However, these enactments were deemed insufficient. In 1868, a commission chaired by Sir Henry Mayne was established to address this issue. The draft submitted by Mayne was later deemed unsuitable for Indian conditions. Consequently, in 1870, the task of codifying the rules of evidence law was assigned to Sir James Fitz James Stephen.[10] Stephen submitted his draft, which was then referred to a select committee, as well as to High Courts and members of the Bar to gather opinions. Following this process, the draft was presented to the legislature and subsequently enacted. Finally, “The Evidence Act” came into effect on September 1, 1872.

Very few amendments have been made to the Indian Evidence Act, those too are made because of technological advancements, for example, the provisions regarding digital signature could not have been thought of, in the 1870s, so it was added by the Information Technology Amendment Act 2008.[11]

Provisions that are removed completely[12]

S.no.SectionDetail
13 (j)India defined
282Presumption as to document admissible in England without proof of seal or signature
388Presumption as to telegraphic messages
4113Proof of cession of territory
5166Power of jury or assessors to put questions

Provisions that are added in the new bill[13]

S.no.SectionDetail
161Admissibility of electronic or digital record

Very few changes are made in the Indian Evidence Law because it is already almost perfect and applies to various situations even to this day. It can be observed that the changes that are made are mainly regarding the evidence obtained from newer technology and the terminology that is no longer used in the new independent India as these terms only bring back the memories of enslaved India during British Rule.

The Code of Criminal Procedure of 1973

The English Legal System and Court System were gradually introduced in India by the British. Before this, there was no standardized criminal procedure law. The Criminal Procedure Supreme Courts Act of 1852 was initially applied in the Presidency Towns, marking the first instance of a uniform law of criminal procedure. Subsequently, the Criminal Procedure Code of 1861 was enacted for the provinces.[14] These laws were replaced by the uniform Criminal Procedure Code of 1882 (Act 10 of 1882). However, shortcomings in the 1882 Act led to the enactment of the Code of Criminal Procedure in 1898 (Act 5 of 1898), which was later amended in 1923 and 1955. With the establishment of the Constitution of India on January 26, 1950, there arose a need to revise the 1882 Act following the new constitution. Consequently, the 1882 code was repealed by the Code of 1973, which was enacted by Parliament on January 25, 1974, and came into effect on April 1, 1974, to consolidate and amend the law related to Criminal Procedure, hereinafter referred to as the CrPC.

The most prevalent criticism that this code faces is that if the accused is guilty, he gets punishment after a very long trial and if the accused is innocent, still he faces a very long trial, although he gets acquitted at the end, while the trial goes on, his reputation is tarnished and he is not accepted by the society.[15] The summary trial procedure is extended to punishments of up to 3 years of imprisonment in the new bill and videography is introduced in various steps of investigation holding the authorities accountable.

Provisions that are removed completely[16]

S.no.SectionDetail
18Metropolitan Areas
210Subordination of Assistant Sessions Judges
316Metropolitan Magistrate Courts
417Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate
518Special Metropolitan Magistrate
627Jurisdiction in case of Juveniles
7144APower to prohibit carrying arms in procession
8153Inspection of weights and measures
9166ALetter of request for investigation outside India
10166BLetter of request from outside India for investigation in India
11197(3B)Prosecution of judges and public servants
12355Metropolitan Magistrate Judgement

The provisions added in the new bill are[17]

S.no.SectionDetail
186Identification and attachment of property of proclaimed person
2105Recording of search and seizure through audio-video electronic means
3112Letter of request to competent authority for investigation in a country or place outside India
4113Letter of request from a country or place outside India to a Court or an authority for investigation in India
5336Evidence of public servants, experts, police officers in certain cases
6356Inquiry, trial or judgment in absentia of proclaimed offender
7398Witness protection scheme
8473Mercy Petition in death sentence cases
9479Bail and bond

The new bill is being praised for better structure. Moreover, the Witness protection scheme is being recognized specifically, for which it is receiving approvals from jurists. Adjournments are not allowed except in certain situations and also the adjournments can only be taken 2 times. The most unique change in this new bill is that all the trial process is allowed to be done digitally. This will increase the speed of the trial manifold. Furthermore, the period of investigation has also been constrained to ninety days with an extension of a further ninety days and no more. Theoretically, all these changes will help dispose of the cases faster.

Suggestions

While interpreting Penal Laws, it is interpreted on two principles- 1. Innocent until proven guilty beyond a reasonable doubt, 2. If the law is not in favour of the accused then it will be applied only prospectively, however, if the law benefits the accused, it will be applied retrospectively. The second principle will make the application of the new code a bit complicated, before it matures into an act, it is important to determine how this new code would impact the cases that are already pending in the court for years. This is yet to be specifically declared by the parliament as to how this code must be applied to the old cases. This aspect will only be cleared after the courts apply the rules of the new bill (after it becomes an act).

While interpreting the procedural laws, here, the Bhartia Nagarik Suraksha Sanhita Bill and the Bhartia Sakshya Bill, the general principle followed is that these are applied retrospectively. This will ease up the procedure in the court and will help in disposing of the cases quicker than before. The application of the new bills has to be further clarified because now the summary trial is extended to the cases of maximum punishment of three years, which means that many cases can be transferred to lower courts with the power of summary trial, this transfer of cases is itself a big task.

The criticism of gender-neutral law is solved by these new bills, but only from one perspective, that is the perpetrator, the victim of the crime is still gender-specific in certain crimes.

Conclusion

As indicated, several important elements necessitate additional clarification, particularly concerning the application of the new legal framework in both past and future contexts. Resolving these uncertainties and facilitating a smooth transition to the new legal framework will be crucial for the successful enactment of the proposed legislation. A thorough review of the three recently proposed criminal law bills demonstrates a positive advancement in the modernization of India’s legal framework. Nevertheless, the effective execution and integration of these reforms necessitate precise procedural guidelines, comprehensive transitional measures, and a collaborative endeavour to guarantee that justice is not only prompt but also impartial, thereby protecting the rights of the accused, facilitating just trials, and ensuring appropriate restitution for victims. As the legal system progresses, it must consistently endeavour to uphold these core principles, adjusting to the evolving societal requirements while upholding the foundation of justice and equity.

Written by-

Name: Krishna Raj Sharma

College Name: Dr. Bhimrao Ambedkar Law University, Jaipur.


[1] Ministry of Home Affairs, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1947941 (last visited Nov. 9, 2023).

[2] Law is not static but dynamic: SC judge stresses importance of continuous learning – ET LegalWorld, ETLegalWorld.com, https://legal.economictimes.indiatimes.com/news/industry/law-is-not-static-but-dynamic-sc-judge-stresses-importance-of-continuous-learning/98075120 (last visited Nov. 9, 2023).

[3] Atul Patra, AN HISTORICAL INTRODUCTION TO THE INDIAN PENAL CODE, JSTOR, https://www.jstor.org/stable/43949716 (last visited Nov. 10, 2023).

[4] Id

[5] Navtej Singh Johar v. Union of India – Global Freedom of Expression, Global Freedom of Expression, https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/ (last visited Nov. 10, 2023).

[6] Decriminalization of Suicide Attempt and India’s Groundless Affection towards Section 309 of the Indian Penal Code, Manupatra, https://articles.manupatra.com/article-details/Decriminalization-of-Suicide-Attempt-and-Indias-Groundless-Affection-towards-Section-309-of-the-Indian-Penal-Code (last visited Nov. 10, 2023).

[7] The Indian Penal Code, Act No. 45 of 1860, https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf (last visited Nov. 10, 2023).

[8] Amendments in Indian Penal Code (Bharatiya Nyaya Sanhita, 2023) – RKS Associate, RKS Associate, https://www.rksassociate.com/amendments-in-indian-penal-code-bharatiya-nyaya-sanhita-2023/ (last visited Nov. 10, 2023).

[9] Id

[10] The Concept and Historical Background of the Evidence Law – Academike, Academike, https://www.lawctopus.com/academike/concept-historical-background-evidence/ (last visited Nov. 11, 2023).

[11] IIFL Securities, Share/Stock Market Investment, Financial & Share Market News, Mutual Funds & BSE/NSE Live Index Updates – IndiaInfoline, https://www.indiainfoline.com/knowledge-center/financial-planning/the-law-of-digital-signature (last visited Nov. 11, 2023).

[12] Bharatiya Sakshya Bill (India), https://prsindia.org/files/bills_acts/bills_parliament/2023/BHARATIYA_SAKSHYA_BILL,%202023.pdf (last visited Nov. 11, 2023).

[13] Id.

[14] History, Amendments, and Scheme of CrPC, The Legal Quotient, https://thelegalquotient.com/procedural-laws/crpc/history-amendments-and-scheme-of-crpc/1997/ (last visited Nov. 12, 2023).

[15] The Bharatiya Nagarik Suraksha Sanhita, 2023: A primer on the proposed changes to the Code of Criminal Procedure, 1973 (2/3), Lexology (Aug. 18, 2023), https://www.lexology.com/library/detail.aspx?g=592a68ba-497b-4eb9-a749-5e1b6c5efcf9.

[16] The Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (India), https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nagarik_Suraksha_Sanhita,_2023.pdf (last visited Nov. 12, 2023).

[17] Id.

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