Prime Minister Narendra Modi in his speech on India’s 76th Independence Day said that “In this Azadi Ka Amrit Kaal, new laws should be made by abolishing the laws which have been going on from the time of slavery.” Ministry of Home Affairs constituted Madhav Menon Committee headed by Dr. Ranbir Singh to review the three codes of criminal law. Cut short to a year later, Union Government introduced three new Acts aimed at replacing the colonial era criminal justice laws by legislations with Indian ethos. The new Acts namely the Bharatiya Nyaya Sanhita (BNS) 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 and Bharatiya Sakshya Adhiniyam (BSA) 2023 will replace The Indian Penal Code, 1860, The Criminal Procedure Code, 1973 and The Indian Evidence Act, 1872 respectively. The Acts came into effect on July 1st, 2024.
The Act adds new dimension to criminal law by adding and defining offences such as mob lynching, petty organised crime, deceitful promise to marry, terrorism and corruption in election process. Considering the Supreme Court recommendation in 2018 to constitute a separate law for mob lynching the offence is defined as murder committed by five or more people on grounds of caste, race, community or personal belief and is made punishable with life imprisonment or death. Petty organised crime includes within its ambit offences such as snatching, cheating, theft, selling of public examination question papers, unauthorised gambling or betting. The offence of sedition is replaced with another provision penalising rebellion, separatism and acts against unity, integrity and sovereignty of India. The Act reviewed the language to ensure gender neutrality and replaced archaic terms such as insanity with mental illness. Offence dealing with procuration of girl for illicit intercourse has been made gender neutral and also different age limits for male and female in kidnapping of minors i.e. 16 and 18 years respectively has been changed to 18 years for both. The offence of adultery and attempted suicide will be excluded which aligns with the rulings of Supreme Court. The most significant shift is the move towards reformative justice by providing for community service instead of imprisonment for specific crimes. The Ministry of Home Affairs in its 2015 advisory and also judiciary on various occasions has emphasised necessity of registering zero FIR specifically for crimes against women to prompt immediate intervention. However, the Act gives statutory recognition to e-FIR and zero FIR which enables anyone to register a police complaint in any police station irrespective of the location of the crime. The Act suggests video recording the search and seizure operations and relying more on electronic or digital evidence and forensics while conducting investigations. In cases of sexual offences, victim statements must be recorded through audio-video means. It also suggests digitalisation of all records including FIR, chargesheet, case diary and judgment. The Police Superintendent is responsible to ensure that an application is filed in the court to release those who are undergoing trials and have served half or one-third of their maximum sentence. The Act expedites justice by requiring judgment to be delivered within 30 days after the trial concludes and limitation on adjournments. It also advocates video trials and holding trials in the absence of accused in order to ensure speedy and timely justice. It penalises publication of court proceedings that may disclose the identity of rape victims and also introduces witness protection scheme for the safety and cooperation of witnesses.
The Act has sparked a variety of reactions. Union Home Minister, Amit Shah noted that “These Acts will transform our criminal justice system. The aim will not be to punish, it will be to provide justice. Punishment will be given to create a sentiment of stopping crime.” Although there are intriguing modifications, the essence of the Code stays basically unaltered. Much of the substance is retained with major changes in the section placement. The Act fails to provide sufficient remedies for men or non-binary individuals who face sexual transgressions and inadequately addresses sexual crimes perpetrated by women against women or men against men. The Act empowers law enforcement agencies with discretionary powers by endorsing practices such as right to handcuff and detention without charges for up to 90 days in certain cases that raises concerns about potential loss of individual civil liberties and heightens the risk of exposure to civil liberties. Section 303 of the Indian Penal Code that mandated death sentence for a murder committed by a life convict was declared unconstitutional by Supreme Court in the case of Mithu v. State of Punjab. It has however been repackaged and introduced in Act thus mandating the same punishment. Terms such as subversive activities, terrorism, organised crime, deceitful means for marriage etc. are defined either too vaguely or broadly thus creating room for overreach or misuse. The Act could have included the standing order with respect to inquest which requires photography and videography of a post-mortem specifically in cases of custodial death or death caused in exchange of fire with police or other authorities. Recommendations of Justice Verma Committee 2013 such as making rape a gender – neutral crime and criminalising marital rape could have been included in the Act.
The introduction of three Acts illustrates the inevitability for law to remain adaptable and receptive to the evolving contemporary needs of society and in case for India a chance to reclaim its identity. However, it may be a missed opportunity to fix extensive over-criminalization and exacerbate police power. The Acts have the power to influence how criminal law is interpreted in the future. To fully understand the scope and extent of the changes will require ample months or even years of research, debate and discussion. In the midst of this evolving conversation, one persistent issue in the Indian setting is how to effectively direct these discussions to produce meaningful and relevant contributions. It is anticipated that the new Acts will be rigorously and comprehensively discussed in the Parliament to guarantee its efficacy, sustainability, observance to rule of law and capacity to administer justice.
Add a Comment