The three criminal bills namely the Bharatiya Nyaya (Second) Sanhita, 2023 (“BNS”), Bharatiya Sakshya (Second), 2023 (“BSB”), and Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (“BNSS”) took over the three British time laws that are Indian Penal Code, 1860 (“IPC”), Indian Evidence Act, 1872, Code of Criminal Procedure, 1898 (“CrPC”) respectively. Introduced in parliament on 11th August 2023, withdrawn on 12th December 2023 and then reintroduced with minor changes was passed by the president on 25th December 2023, and will be fully implemented before 22nd December 2024.
When introducing these bills, Mr. Amit Shah claimed that “The new bills seek to achieve ‘justice’ rather than giving ‘punishments’.” The bills introduced 29 key changes, out of which the significant implications of each bill will be discussed herein;
BNS (Bharatiya Nyaya Sanhita):
Bharatiya Nyaya Sanhita will replace the Indian Penal Code, of 1860. The newly introduced bill has 356 sections replacing 511 sections of IPC. The major changes in the act include;
- Removes the word sedition and replaces it with ‘offences against the state.’ endangering the sovereignty and integrity of India.
- The act, for the first time, defines a terrorist as a person who commits any act in India or a foreign country to threaten the unity, integrity, and security of the country.
- The act of defamation carries a simple imprisonment of up to 2 years, a fine or both, or community service. (The Community Service clause is a new addition to the offence)
- The act, for the first time, defines mob lynching and is made punishable with 7 years imprisonment or life imprisonment.
Apart from the above provisions, the act also has some major shortcomings discussed below:
No provision for Sexual offences against Animals
In the Indian Penal Code, it was specifically stated under section 388 that, if any human being sexually exploits any animal, he/she shall be held liable, but the new act does not have any provision for safeguarding animals from sexual exploitation. The absence of this provision is vague, creates ambiguity among the citizens and leaves it open for interpretation as there is no other act that protects the rights of an animal. The act creates confusion and puts the status of animals as a ‘legal person’ in question because as per the Supreme Court, every animal has the right to life as same as any human and the Right to Life to the animals as well[1] and they must be protected by the court.
The only protection given to animals under this act is under Section 323 which talks about the killing of an animal. So, will this change be considered as a “justice” to animals? The answer would be no, as the new act not only creates vagueness but also takes away the protection already given to the animals.
Section 63 Not inclusive of all gender
Section 63 of the BNS defines Rape as, “if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person”. The act only gives protection to a woman being raped and doesn’t even talk about the other genders getting raped. This bill entirely ignores the possibility of a man getting raped by a woman or by another man.
One such example of this is in a recent case where four females in Jalandhar, Punjab, abducted a male and raped him several times before letting him go. Moreover, taking into account the present scenario where the LGBTQ community is growing at a very high rate, the possibility of a man or a transgender or any other gender getting raped is very high.
Seeing the rapidly changing society, shouldn’t the government have introduced a much more gender-neutral section? This again leads us to the question of justice because, as of section 63 of BNS, it would not be considered justice to all the other genders.
BSB (Bharatiya Sakshya):
The Bhartiya Sakshya bill was introduced to replace the prevailing Indian Evidence Act, 1872, which includes 170 sections instead of 167 sections of the Indian Evidence Act. The major changes under the act are:
Expanded the definition of documents
Expanded the definition of documents and sets to include “electronic or digital records, e-mails, server logs, computers, smartphones, laptops, SMS, websites, locational evidence, emails, messages on devices.”
Transformation in the evidence presentation:
The major and the only important change made in the BSB from the Indian Evidence Act is the change in the admissibility of electronic evidence. Section 61 of BSB states that an electronic record will also be admissible, the same as a paper record, and its admissibility will not be questioned in court.[2] Now, as per its antecedent, the Indian Evidence Act, if a person had to submit an electronic record, he/she must get a certificate under Section 65B of the Evidence Act. This provision was made to safeguard and ensure that the documents are original and are not subject to any unidentified alteration or transposition.[3] However, the new bill has removed this protection given to electronic evidence, making it prone to illegal modifications, as now, in the present generation, these modifications can be done so impeccably that no one would be able to identify the change. This could be an easy threat to justice, as the modifications in the electronic evidence can change the whole course of the decision.
BNSS (Bharatiya Nagarik Suraksha Sanhita)
The Bharatiya Nagarik Suraksha Sanhita is replacing the Code of Criminal Procedure, 1898. This act consists of 533 sections instead of 484 sections of CrPC. The major changes in the act are as below –
- Allow summary trials for offences with a punishment of up to 3 years to reduce the burden on the District Court.
- For any offence for which the punishment is 7 years or more, a forensic team is mandatorily required at the crime scene.
- Fingerprints or voice samples may be taken along with signatures and handwriting for investigations.
- Expand and give the power to any police officer to approve medical examination in specific cases, including rape. Previously only a sub-inspector could give this permission.
- Broadens the scope of police powers to seize immovable property as well in case of suspicion of being stolen. Previously, only movable property could be seized.
The most altered bill among the 3 bills is BNSS, which led to the more unjust provisions, as discussed below –
More immunity to defence personnel:
Section 45 of the CrPC states that a member of the armed forces will be exempted from any arrests by the act was consequent to the duties discharged with the consent of the Central Government, however, the new bill gives full power to the armed forces deployed in distributed areas (areas under AFSPA) to arrest or kill anyone acting against the law as well as to search any premises without any warrant. The only remedy left is that the act done must be in the line of duty i.e., they have taken away the only way of keeping checks by the government.
Currently, AFSPA is applicable in the states of Assam, Nagaland, Arunachal Pradesh, J&K, and Manipur. This change is not justified, taking into consideration the recent mishap, where 30 army personnel, including a Major in Nagaland, killed an entire group of 6 innocents, mistaking them to be someone else.
Consequently, the Ministry of Defense denied sanction to the army personnel, leading to widespread anger and chaos throughout the country.[4] After this mishap, the thing that needed to be done was to reduce the scope of protection given to the personnel to avoid more innocents from getting killed, but the government rather increased the scope and took away the check of the government on the duties of the army personnel.
Extended Duration of Police Custody:
As per Section 167 of CrPC, a magistrate can authorize police custody for a maximum period of 15 days, but this was altered in the new bill, according to which the maximum time for which the magistrate can authorize police custody till the entire period of detention, i.e., 60 or 90 days, as the case may be under section 187 of BNSS. The change is excessive, and this extended police custody could lead to custodial violence. The protection already given to victims of custodial is not enough, and this extended police custody increases the accused’s vulnerability to giving forced confessions or could also lead to the fabrication of evidence.
For instance, in the recent case of Raghbir Singh Vs. State of Haryana[5], where the custodial violence inflicted by the police on the victim led to his death.[6] This is a clear example of how grave custodial violence could get that it may lead to the victim’s death. This should rather be seen as an inadvertent move by the government, which would, of course, get in the way of achieving justice.
Trials in Absentia:
Section 356 of the BNSS allows the court to conduct a trial in absentia, i.e., without the presence of the victim. For conducting a trial in absentia, three conditions must be met before the trial can start. These are as follows:
- The accused must be a proclaimed offender under section 84(4) of BNSS (proclaimed offender is where the offence is punishable for 10 years or more, life or death).
- They have absconded to evade trial. The act takes into account only if the accused has absconded during the trial and excludes the ones who have absconded during the investigation.
- There is no immediate prospect of their arrest.
After these three conditions are met, the accused would be considered to have waived off his right to be present in his trial. The court, after this, may proceed as if he/she were present in court. The introduction of this provision could lead to unfair/unjust trials as it may increase the possibility of easy conviction. It may also serve as an incentive for the prosecutors and police officers to manipulate the warrants and summons.
Police officers may get an easy way out of investigations without making adequate efforts to find the accused who absconded during the trial. Moreover, the section also prevents filing appeals against the trial in absentia until and unless the proclaimed offender appears in the court.
Even though the government added this section to ease up the burden upon the courts, easing up the burden of the court at the cost of easing up injustice and beating the Right to a fair trial provided by the Constitution is not fair to the citizens and will lead to injustice rather than providing justice.[7]
Confusion in Witness Protection Law:
Section 398 of the BNSS states that every state government must make laws for the protection of witnesses and notify a Witness Protection Scheme for their respective state.
But in 2018, the government introduced the Witness Protection Scheme, which took a broader approach to the protection of witnesses. It included all the procedures of witness protection and all the steps to be taken by the police department, the court, and the judges to safeguard the witness before the proceeding. Section 398 rather conflicts with this scheme and does give clear instructions as to whether the rules set up in the scheme should be a part of the state’s witness protection scheme or not.
A clear notification as to whether the rules made for the protection of witnesses must incorporate the rules given under this scheme. The government has rather left it open for interpretation, which could be easily exploited by any state government for its benefit, and innocent witnesses could suffer because of this vagueness.
Mercy Petitions:
Section 473 of the BNSS states that a person on a death sentence can file a Mercy Petition. This law lays down the procedure under which mercy petitions can be granted to an accused by the President and the Governor under Article 72 and Article 161 of the Indian Constitution. The change is not of the provision of mercy petition, but the other newly introduced provisions attached to mercy petition, like clause 1 of this section states that only the convict on the death sentence or his/her legal heir or any other relative can file for mercy petition.
Presently, there is a shared awareness of the conditions prevailing in Indian prisons, where it is not unusual for a convict, particularly one facing the death penalty, to experience a breakdown in communication with their family. It is imperative to note that the exclusive avenue for initiating a mercy petition is through the direct action of the convict. For a fact, it can be said that most of the death row convicts are poor[8] and even lack the basic education needed to file for a mercy petition. Presently, the court has recognized that a convict has the right to file for a mercy petition with the same authority if there is a change in the facts of the case. But the new provision also contradicts the judgment and puts a bar on the relief available even in the case of change in the circumstances of the case.
Conclusion:
The bills introduced seek to revolutionize the present Criminal Law structure of India and achieve it to some extent by increasing the scope of punishment for some crimes and introducing some much-needed amendments to the present laws.
However, the question we need to answer is whether the new laws stand upon the statement of providing justice rather than punishment.[9] To a considerable extent, the answer would be yes, but then again, the government has come up with these acts to remove century-old laws, for which the expectation from these new laws was much more than they repeating the same mistakes of not fully going through repercussions of the laws which could have serious effects on the idea of securing justice. It is like the government tries to move straight to achieve justice but rather circles back to injustice.
While the new laws attempt to address crimes not covered by previous acts, there are still some gaps that need filling. It cannot be denied that the new bills are working towards their intended goals; however, these significant shortcomings are hindering them from achieving their maximum potential.
[1] Animal Welfare Board of India v. A. Nagaraja & Ors, (2014) 7 SCC 547.
[2] Admissibility of Electronic Records, The P39A Criminal Law Blog (Nov 15, 2023).
[3] Saloni Sharma & Arshdeep Singh, Revamping The British Era Laws: IPC, CrPC And Evidence Act, IJLLR Volume V Issue IV (2023).
[4] Vijaita Singh, Proposed Criminal Code Will Require Central or State Government Nod to Register Cases Against Armed Forces Personnel, The Hindu (Nov 16, 2023).
[5] 1980 AIR 1579.
[6] Ishita Ayala, Custodial Violence in India, nujssacj, (Jun 12, 2023).
[7] Rehan Mathur, Mudrika Agarwal, Nadia Shalin, “Bharatiya Nyaya (Second) Sanhita Bill, 2023, Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023 and Bharatiya Sakshya (Second) Bill, 2023: Analysis of Key Changes”, The P39A Criminal Law Blog (December 14, 2023).
[8] Project 39A, National Law University, Delhi, ‘Death Penalty in India: Annual Statistics Report 2021’ (Project 39A, National Law University, Delhi 2022).
[9] Prawesh Lama, LS Clears Bills to Replace British-Era Crime Codes, Hindustan Times (Dec 21, 2023).
This article is written and submitted by Himanshu Prashar during his course of internship at B&B Associates LLP. Himanshu is a 2nd year year BB.A. L.L.B student at Symbiosis Law School, Noida.
