Shortcomings in the New Criminal Laws: An Analysis

August 3, 2024

Starting on July 1, the Indian Penal Code (IPC) of 1860, the Criminal Procedure Code (CrPC) of 1973, and the Indian Evidence Act of 1872 has been replaced by three new criminal laws: Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA). The objective of these modifications is to contemporize and optimise the effectiveness of the criminal justice system in India.

New Criminal Laws Came into Effect From 1st July:

On December 20, 2023, the Lok Sabha approved three new pieces of legislation pertaining to criminal law. The purpose of these bills is to completely revamp the Indian legal system and construct a justice system that is rooted in Indian ideology. The New Criminal Law Bills in India will supersede the Indian Penal Code of 1860, the CrPC of 1973, and the Indian Evidence Act of 1872[1].

Bharatiya Nyaya (Second) Sanhita, 2023

Bharatiya Nagarik Suraksha (Second) Sanhita, 2023

Bharatiya Sakshya (Second) Bill (BSB) 2023

● · Bharatiya Nagarik Suraksha Sanhita, 2023[2]

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) aims to replace the Criminal Procedure Code, 1973 (CrPC), introducing significant changes and deletions of several provisions. Key deletions include sections related to metropolitan areas, subordination of assistant sessions judges, courts and magistrates of metropolitan areas, special metropolitan magistrates, jurisdiction concerning juveniles, prohibitions on carrying arms in processions, inspection of weights and measures, letters of request for international investigations, prosecution of judges and public servants, and various judicial procedures.

The BNSS mandates forensic investigations for serious offences, allows electronic trials and inquiries, and expands the collection of personal samples for investigations. Additionally, it modifies rules regarding police and judicial custody, property attachment, and bail, often tightening these provisions. Despite retaining many CrPC provisions, the BNSS introduces new procedural timelines and removes the classification of metropolitan areas and magistrates, among other changes, aiming to streamline and modernise criminal procedure while raising concerns about potential impacts on individual rights and judicial safeguards.[3]

This raises serious constitutional and human rights issues. The CrPC, often referred to as the “Accused’s Constitution,” provides essential protections during detention and interrogation.

Key issues with these changes include: infringement of Article 21, raising concerns about potential violations of the right to life, health, and fair trial, and increasing the risk of custodial violence and torture; violation of Supreme Court judgments, specifically the D K Basu v State of West Bengal case, which emphasizes protection against torture and assault by state officials; removal of existing safeguards against police excesses, exposing accused individuals to potential abuse; undermining the accused’s defense preparation and increasing the risk of coerced confessions or statements due to extended police custody; and comparison with harsh laws like the Unlawful Activities (Prevention) Act, 1967 (UAPA), which restricts police custody to 30 days and mandates an affidavit for extensions, while the BNSS allows for a three-fold increase in police custody. [4].

● Bharatiya Nyaya Sanhita, 2023[5]

The Bharatiya Nyaya Sanhita (BNS) proposes significant changes by deleting several provisions from the Indian Penal Code, 1860, including definitions and offences such as ‘Servant of Government,’ ‘India,’ ‘Electronic record,’ sedition, certain arms-related offences, attempts to commit suicide, thuggery, specific sexual offences, adultery, and some crimes related to weights and measures.

The BNS retains most IPC offences but introduces new ones like terrorism and organised crime, and adds community service as punishment. Sedition is replaced with a new offence targeting acts endangering India’s sovereignty. The BNS also incorporates stringent measures against mob lynching and aligns some changes with Supreme Court rulings, such as decriminalizing adultery and maintaining life imprisonment for certain serious crimes. However, it retains the age of criminal responsibility at seven years and diverges from international recommendations on several counts. The removal of Section 377, despite its partial reading down by the Supreme Court, excludes certain sexual crimes from penalization.

The key issues with the Bharatiya Nyaya Sanhita (BNSS) include several key points. First, the minimum age of criminal responsibility in India remains lower than in many other jurisdictions, with the age set at seven and extended to 12 under certain conditions, compared to 14 in Germany and 12 in Scotland. Second, the age threshold for victims of offences against children varies inconsistently, with different penalties based on varying age criteria, contrasting with the Protection of Children from Sexual Offences Act, 2012, which uniformly considers individuals below 18 as minors. Third, there is significant overlap with special laws, creating redundancies and inconsistencies in legal coverage, as seen with offences related to organised crime and terrorism. Fourth, aspects of sedition are retained under new terminology, potentially broadening the scope of what constitutes a threat to national integrity, with terms like “subversive activities’ ‘ remaining undefined.

Additionally, the bill has not fully addressed recommendations by the Justice Verma Committee and the Supreme Court regarding offenses against women, such as expanding the definition of rape and removing the marital rape exception. Lastly, drafting issues persist, such as the omission of Section 377, which previously covered intercourse against the order of nature, thereby excluding the rape of an adult man and intercourse with an animal from being offenses under the new bill

● Bharatiya Sakshya Adhiniyam 2023[6]

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the Indian Evidence Act, 1872 (IEA), deletes several provisions, including Section 3(j) (definition of India), Section 82 (presumption regarding documents admissible in England), Section 88 (presumption regarding telegraphic messages), Section 113 (proof of cession of territory), and Section 166 (jury or assessor’s power to question).

The BSA retains most IEA provisions, such as confessions and burden of proof, while introducing significant changes. It redefines electronic records as primary evidence, expands the scope of documentary evidence to include digital formats, and allows electronic oral evidence. Secondary evidence requirements are broadened to include cases where document authenticity is questioned. Additionally, the BSA clarifies the treatment of confessions in joint trials and asserts the legal equivalence of electronic and paper records, thus modernising the evidentiary framework to accommodate technological advancements better.

There are several concerns with the Bharatiya Sankhya Bill (BSB)- the Supreme Court has acknowledged the potential for tampering with electronic records. Although the BSB allows for the admissibility of such records, it lacks safeguards against tampering and contamination during investigations. Currently, electronic records require a certificate for authentication to be admissible as documents. The BSB retains this requirement but also classifies electronic evidence as documents, which might not need certification, creating a contradiction.

Additionally, both the Indian Evidence Act (IEA) and the BSB allow facts discovered from information received while the accused is in police custody to be provable, a provision criticised for potential coercion without adequate safeguards. The IEA and BSB permit such information if obtained in custody but not if the accused was outside, a distinction the Law Commission recommended removing. Furthermore, the Law Commission’s suggestions, including presuming police-caused injuries if the accused is injured in custody, have not been incorporated into the BSB. [7]

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