New Criminal laws: will they improve India's criminal justice system?

On Monday 25th December 2023, Draupadi Murmu, the President of India, signed three historic bills into law that are avowedly intended to overhaul the nation's criminal justice system. The bill titled Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSSS), and Bharatiya Sakshya Adhiniyam (BSA) will replace the Indian Penal Code (IPC) 1860, the Code of Criminal Procedure (CrPC) 1973 and the Indian Evidence Act 1872 respectively.

It was on August 11th, 2023 that the bill was first introduced in the Lok Sabha. They were then referred to a parliamentary committee for consideration. The committee led by Brij Lal examined these bills and submitted them to the parliament. Brijlal, currently representing Uttar Pradesh as a Rajya Sabha MP is a former IPS officer from the 1977 batch. During the Mayawati Government, he served as the Director General of Police for Uttar Pradesh. The proposals were endorsed by the Lok Sabha on December 20 after minimal discussion with many of the opposition members absent because of either suspension by the house due to their raising objections on the security breach in the parliament or the boycott against the government's stance. The bills were then approved by the Rajya Sabha on December 21 and then submitted to the President for her stamp of approval.

Some of the significant modifications that characterise the new laws are: the BNS uses gender-neutral language to guarantee inclusivity, provisions added in the BNSSS for compounding offences and engaging in plea bargaining to speed up case resolution, digital signatures and electronic evidence are recognized in the BSSA to keep up with technology improvements and sterner punishments for specific crimes like sexual assault and terrorism.

The definition and scope of terrorism have been extended significantly in the Bharatiya Nyaya Sanhita (BNS). The new act significantly broadens the definition of what constitutes "terrorism” including the definition of what constitutes a terrorist act to cover a variety of deeds intended to jeopardize the security, unity, integrity, sovereignty, and even the stability of India's economy. Furthermore, any act that undermines the stability of India's currency by manufacturing, smuggling, or selling counterfeit goods or currency is also regarded as a "terrorist act", which in effect makes fake currency crimes attract punishments for terrorist crimes.

The government claims that the goal of these new laws is to update India's criminal justice system and bring it in line with the modern era by increasing its effectiveness, efficiency, and alignment with the needs of the times. Regardless of the merit of the new provisions, these modifications are sure to have a major effect on India's criminal case investigation, prosecution, and adjudication processes. Whether the effects of these will be salutary or not remains to be proven by their implementation on the ground.

The new acts have been highlighted by the government for their modern outlook and the need for new laws in line with current times. But because the laws have provisions like mandatory minimum sentences and also longer sentences, their opponents express concerns that rights may be violated. Reproach has also been expressed about the possibility of certain provisions being abused and about the transparency of the legislative process.

Some significant inclusions in the new act – in which 90% is the same as the old law - include provisions like community service as a type of punishment (section 4(f) BNS), the provision that regardless of jurisdiction, a Zero FIR can be filed in response to a complaint about a crime that is punishable by law. There are also provisions like the gender-neutral definition of child, and also some major deletions like that of section 377 IPC, which dealt with Unnatural offences and was a most discussed section in the past year with the Supreme Court giving out its judgment on homosexuality.

Among the specific changes brought in the Bharatiya Nagarik Suraksha Sanhita (BNSS) or the new CrPC are provisions like mandatory forensic investigations that are required for offences carrying a minimum sentence of seven years in prison. The purported goal of this is to make investigations and prosecutions more accurate. As per BNSS, electronic evidence can be used in court: such evidence can be from electronic devices, such as computers, smartphones, and security cameras. The BNSS also simplifies the bail process, which makes it simpler for the accused to be granted bail. It also broadens the parameters of property seizure, enabling law enforcement officials to apprehend assets they believe to be linked to criminal activity, a provision that is highly exposed to misuse.

The most concerning aspect of BNSS is that using illegal force against any public servant will now be considered a terrorist act. In addition, Section 113 gives any officer not lower than the rank of Superintendent of Police the authority to classify cases under this clause or the Unlawful Activities (Prevention) Act. If such actions result in a person's death, the punishments range from life in prison to the death penalty. The new criminal law attracts the death penalty for mob lynching. The Bharatiya Nyaya Sanhita adds murder or grievous hurt by five or more people on specified grounds, as an offence in relation to mob lynching. These grounds can be based on personal beliefs, language, caste, sex, or race. Such murder carries a life sentence or death penalty.

Major changes have been brought about in Bharatiya Sakshya Adhiniyam which replaced the Indian Evidence Act, 1872. Here again, electronic records can be used to establish a fact without the need for additional evidence. The new law classifies them as primary evidence. In some circumstances, such as when the declarant is unavailable or the statement is pertinent to a witness's credibility, the law permits even hearsay evidence. Confessions must be made voluntarily and free from coercion for them to be admitted into evidence under the BSA, which makes this process more challenging. Several general modifications to the law of evidence are also included in the BSA, including the clarification of the meaning of "relevant evidence" and the provision of additional guidelines regarding the evaluation of evidence.

The main criticism against the new laws has been based on the fact that due debates or discussions have not been held regarding the same. Even in the houses of parliament, the members had hardly any opportunity to analyse the content. Senior Congress leader and Supreme Court lawyer P Chidambaram noted in X (former Twitter) “Instead of strengthening 'due process of law', the new Criminal Procedure Code contains many provisions that severely restrict 'freedom' and 'personal liberty' ". All the stakeholders equally are criticizing the government's new move because, of all the things, the bill was made into law with very little discussion or deliberation making it an undemocratic move. The names of the new law in Sanskritized Hindi are likewise considered to be unconstitutional which can trigger a stir for non-acceptance, especially from southern states.

Overall, responses to the new laws have been mixed. While their backers have praised the changes claiming that they would improve the fairness and efficiency of the criminal justice system, critics view them as containing very of new or improved provisions, weakening the rights of the accused and making it easier for the law enforcers to abuse their authority And whether BNSS will be able to fulfil its objectives is a matter to be proved in actual implementation.

Rifa Sanbaq teaches law at the School of Law, MIT-World Peace University, Pune. Views expressed are personal