Syed Umar Asdaque; Jamia Millia Islamia, New Delhi
Abstract
Criminal Justice System is a set of policies and organizations used by the central and state governments to prevent, detect, regulate crimes, penalize offenders, and deliver justice to the victims. The major components of the criminal justice system are the police, the judiciary, and the correctional system, i.e., jails and rehabilitation centres. Criminal Justice System is primarily based on criminal laws, mainly the Indian Penal Code[1] (hereinafter referred to as IPC) and the Code of Criminal Procedure[2] (hereinafter referred to as CrPC). Criminal laws in India are British-era colonial laws, which will be replaced as new criminal laws have been passed. The three laws are Bharatiya Nyay Sanhita, 2023, which will replace the IPC, Bhartiya Nagrik Surakhsha Sanhita, 2023, which will replace the CrPC and Bharatiya Sakshya Adhiniyam, 2023, which will replace the Evidence Act[3]. The author will elucidate the key changes in these acts, their significance, and their criticism.
Introduction
Criminal laws have been the foundation of the Indian justice system, yet they fail to address the complexities in dynamic times. The new criminal laws will entirely overhaul the Indian criminal laws. The goal of the change is to make the complicated and antiquated criminal statutes more straightforward. The modifications would align the laws with the spirit and culture of India and reflect the changing nature of crime, society, and technology. The CJI claims that the new legislation has brought India's criminal justice system into the modern era.[4]. These laws will signify a milestone for Indian society, as no other law affects day-to-day conduct of the society as criminal law. In 2020, the Ministry of Home Affairs (MHA) constituted national level ‘Committee for Reforms in Criminal Laws’ (CRCL) under the chairmanship of Dr. Ranbir Singh. The union home minister introduced three bills in August 2023. However, they referred to a 31-member Parliamentary Standing Committee, chaired by BJP MP Brij Lal for review. In the winter session of 2023, bills were reintroduced with changes, passed by the parliament, and received the assent of President on December 25. On June 16, 2024, law minister Arjun Ram Meghwal said that the new laws would come into force on July 1, 2024[5].
Need for Reforms
There are various complexities in old laws that need to be reformed. Some points are discussed below in the following points:
· Criminal Justice System is designed in a British colonial-era law that needs to be reformed as per Indian spirit. Colonial laws are aimed at oppressing rather than serving justice, like sedition laws in the IPC. Many provisions of old laws require overhauling as they are outdated and archaic.
· The Pendency of cases is a major social issue in India. According to the National Judicial Data Grid, there are 4,50,84,418 cases, both civil and criminal, pending as of June 25, 2024. This leads to a delay in delivering justice, and ultimately, justice is delayed which is violation of Article 21[6].
· There is a lack of infrastructure and resources in the criminal justice system, which needs to be dealt with. CJI Chandrachud recently said in his lecture that the infrastructure needs to be developed adequately for the country to reap the benefits of the new laws[7].
Key Changes in Criminal Laws
Bharatiya Nyay Sanhita, 2023[8] (BNS)
· Terrorist Act.
Section 113 of the Act defines the act of terrorist. The provision specifies that if anyone does any act to intimidate the unity, integrity, sovereignty, security, or economic security of the country which is likely to terrorize the people of the country or any section of the people. This provision is in consonance with the definition of the terrorism in UAPA, 1967[9]. However, there are trivial difference.
· Mob Lynching
Section 103(2) of the act deals with mob lynching. The offence dealt with cases where five or more persons acting in accord commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief, or any other similar ground. The maximum penalty under this is mentioned death.
· Hit and Run Provision
Section 106(2) of BNS specifies that any person causes death by negligent driving and escapes without reporting to the concerned authority then they may be punished with imprisonment which can be extended for 10 years. This provision has been widely criticized by all the stakeholders and strike was also called on.
· Sedition
Provision of sedition has been banished in BNS which was criticised as a draconian law which was used to restrain free speech of peoples. However, Section 150 of BNS introduces homogenous provision as sedition.
Bhartiya Nagrik Surakhsha Sanhita, 2023[10] (BNSS)
· Zero FIR
It refers to the First Information Report (FIR) that is lodged irrespective of the location of the incident. According to this clause, the police cannot argue that they are not within their jurisdiction to handle that specific occurrence. This will improve people’s trust on Police administration. Justice This provision is introduced on the recommendation of the Justice Verma Committee which was formed subsequent to the vicious Nirbhaya gang rape in Delhi in 2012. In order to win back the trust of minorities, the National Commission for Minorities suggested in its Annual Report 2011–12 that FIRs be registered promptly, charge sheets be filed on time, and trials be held quickly[11].
· Definition of Community Service
IPC contained five types of punishment. However, BNS introduced sixth punishment, i.e., Community Service.[12] This shows that the Indian criminal system is shifting from the retributive justice to restorative justice. After the Standing Committee recommendation, community service has been defined in BNSS as it was mentioned in BNS[13]. Malimath committee, 2003 recommended community service as a punishment for the violation of minor offences.
· Handcuffing
Section 43(3) of the original bill allows the police personnel to handcuff the offenders in grave and heinous cases. There is a controversy that the police officials can misuse this provision as grave and heinous crimes have not been defined anywhere. It can be misused to suppress the voice against the government. Committee recommended that economic offences should be eliminated from the provision[14].
· Police custody beyond 15 days
Under the CrPC, Police custody can be extended by the magistrate for maximum period of 15 days. However, with the introduction of BNSS, the Magistrate can authorise police custody exceeding 15 days. The custody can be authorised for maximum detention period, i.e., 60 or 90 days.
Bharatiya Sakshya Adhiniyam, 2023[15]
· Admissibility of Electronic evidence
With the introduction of this act, electronic evidence will have identical effect as a paper record. This provision of new law has been commendable by the experts. This act expands the scope of secondary evidence.
· Evidence can be given electronically
The purpose of the Act is to clarify what constitutes evidence. According to Section 2(1)(e), any statement or information sent electronically is considered evidence. This allows witnesses, accused parties, experts, and victims to appear before the court virtually and provide testimony.
Criticism
· All the three laws have been widely criticized as they have been passed in Parliament when as many 146 opposition MPs were absent, having been suspended by the speaker. It is stated by the Constitution Conduct Group (CCG), an organization of retired Indian Administrative Service (IAS) said that the laws were rushed in parliament without having to face deprecatory questioning by the opposition in a public debate[16]. This leaves a lot of pertinent and significant questions concerning the legislation unanswered.
· Several provisions of BNS made altercation like sedition is eliminated in BNS but section 150 of the act is alike sedition. Another controversial provision is hit and run in which person will be imprisoned if escaped without reporting the incident. All India Transporters has called on a nationwide strike to register their protest against this provision. After this, government clarified that the provision of section 106(2) of BNS will come into force only after consultation with the stakeholders.
· All the three criminal laws have been repealed and their new names are in Hindi. These become the contention in southern states of the country. PIL was filed in Kerela High Court and the high court agreed to hear the PIL. Argument given by the petitioner that the hindi names of criminal laws are creating difficulties for non-hindi speakers[17]. It is regarded as violation of article 348[18] as it specifies that the language of act should be in English. However, committee finds that as the text of the Sanhita is in English, it does not violate the provisions of Article 348 of the Constitution[19]. The Committee maintains that the proposed legislation's name does not violate Article 348 of the Indian Constitution and is pleased with the Ministry's response. On the other hand, many legal experts have given their stance that the English names should be retained.
· There is an apprehension that the new criminal laws can be misused which can violate human rights. It contained many vague and broad terms that can infringe human rights. For example, BNSS give more powers to police to seize, search, arrest without any supervision of the judiciary.
Conclusion
All the three criminal laws have been passed by the parliament and will come into effect on July 1, 2024. There have been many changes in these acts but the crux of these acts are same. The archaic and intricate criminal statutes are intended to be simplified and brought up to date by this alteration. The harsh sedition statute under Section 124A of the IPC, which has been extensively criticized for being abused against dissenters and government critics, would be repealed as a result of the change. However, section 150 of BNS introduces same kind of provision. This reform is restorative justice as contrary to retributive justice. There are many shortcomings in these acts. A more inclusive and thorough approach is required to address the issues and possible flaws in the proposed revisions. There is no denying the need to update the criminal justice system in order to better serve the public interest and carry out the legal system, as well as the importance of updating our criminal laws in India to reflect contemporary societal developments and advancements. Additionally, it seems that the three new laws will make it simpler to obtain justice, especially in situations involving lynchings, mob violence, crimes against women and children, and other offenses that were not previously specifically covered by statutes. However, the ground reality of the laws will be revealed with the passage of time once they have been implemented.
[1] The Indian Penal Code, 1860 (45 of 1860)
[2] The Code of Criminal Procedure, 1973 (2 of 1974)
[3] The Indian Evidence Act, 1872 (1 of 1872)
[4] CJI Chandrachud on enactment of three new criminal laws: ‘India is changing’, available at: CJI Chandrachud on enactment of three new criminal laws: ‘India is changing’ | Latest News India - Hindustan Times (last visited on June 25, 2024)
[5] Shiv Sahay Singh, “New Criminal laws, introduced after widespread consultation, to become effective on July 1: Law Minister” The Hindu, June 16, 2024.
[6] The Constitution of India, art. 21
[7] Supra note 3
[8] The Bharatiya Nyaya Sanhita, 2023 (45 of 2023)
[9] The Unlawful Activities (Prevention) Act, 1967 (37 of 1967)
[10] The Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023)
[11] Government of India,” Advisory on no discrimination in compulsory registration of FIRs Regarding” (Ministry of Home Affairs, 2023).
[12] Supra Note 8, s.4(f)
[13] Parliament of India, Rajya Sabha,” Two Hundred Forty Seventh Report on the Bharatiya Nagarik Suraksha Sanhita, 2023” (Parliamentary Standing Committee on Home Affairs, 2023)
[15] The Bharatiya Shakshya Adhiniyam, 2023 (47 of 2023)
[16] Growing demand for government to defer amended criminal laws, available at: Growing demand for government to defer amended criminal laws (nationalheraldindia.com) (last visited on June 25, 2024)
[17] 'Hindi Names of New Criminal Laws Create Difficulty For Non-Hindi Speakers' : Advocate's Plea In Kerala High Court, available at: https://www.livelaw.in/high-court/kerala-high-court/kerala-high-court-advocate-challenges-hindi-names-given-to-the-new-criminal-laws-says-violates-article-19-1-g-259092 (last visited on June 25, 2024)
[18] Supra note 6, art. 348
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