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Criminal Laws: From Punishment to Justice

Indian Penal Code (IPC)
The Indian Penal Code, 1860 is the official criminal code in the Republic of India, inherited from British India after its independence. It is a comprehensive code intended to cover the following substantive aspects of criminal law.

The code was drafted on the recommendations of the first Law Commission of India established in 1834 under the Charter Act of 1833 under the chairmanship of Thomas Babington Macaulay. It came into force in the subcontinent during British rule in 1862.

However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s. The code has since been amended several times.

Code of Criminal Procedure (CrPC)
The CrPC was created for the first time ever in 1882 and then amended in 1898, then according to the 41st Law Commission report in 1973. It is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974.

It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty.

Indian Evidence Act
The Indian Evidence Act was originally passed in India by the Imperial Legislative Council in 1872, during the British Raj. It was enacted by the Governor-General in Council on 15 March 1872 and came into force on 1 September 1872.

It contains a set of rules and allied issues governing admissibility of evidence, burden of proof, expert opinion etc. in the Indian courts of law.

Over a period of more than 150 years since its enactment, the act has basically retained its original form except certain amendments from time to time.

In simple words, IPC determines whether an act constitutes a crime and prescribes punishment for it; CrPC outlines arrest and investigation procedures, detailing the rights of both the accused and the victim; the Evidence Act focuses on the admissibility of evidence in the legal proceedings.

These three criminal laws (inherited from British India) are like the three big structures of India which impact every Indian profoundly.

However, over the past century, the landscape of crime has undergone a profound transformation, encompassing changes in nature, methodology, and the very fabric of criminality.

Hence, the Parliament has decided to substitute the current trio of laws with the new legislations which we are going to critically analyse going further.

On 11 August 2023, the Government introduced a bill in the Lok Sabha to replace the IPC with a draft Code called the Bharatiya Nyaya Sanhita (BNS), CrPC with the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Indian Evidence Act with the Bharatiya Sakshya Sanhita (BSS).

While numerous parameters contribute to evaluating the merit of criminal laws, the following can be the three key elements:
  1. Timely justice[1]
  2. Fair trial[2] of the accused
  3. Right to fair compensation of the victim

Hence, to administer justice effectively, a criminal law should be designed to promptly adjudicate cases, ensure trial seeks truth, and guarantee the victim receives equitable compensation for their losses.

Prior to delving into a comparative analysis of the new legislations against the existing framework, it is imperative to elucidate the significance of a structured legal framework.

Laws are made for the following three compelling reasons, each serving a distinct purpose in fostering a just and orderly society:
  1. Knowledge- the acts are formulated so that knowledge can be obtained properly. Hence, it is presumed that all citizens are cognizant of the laws in India, emphasising that ignorance of the law is not an excuse.
  2. Uniformity & Certainty- the formulation of acts is driven by the objective to establish a unified definition of crime and punishment in India, ensuring equitable compensation for victims and fair trial of the accused across the nation.
Having established a foundational understanding, let us now understand what shortcomings exist in the current laws & what necessitates the introduction of new laws.

Points of Analysis:
  1. What is the objective of the new laws?
  2. What changes are introduced in the laws?
  3. Whether the problems in the existing laws are effectively addressed by the new laws?

As discussed earlier, these laws were instituted by the British government. While assessing their merit as either good or bad is a secondary consideration, the primary focus lies in recognising that the objective behind their creation was to exploit Indian resources and prevent any potential revolt against the British government by the Indians.

Furthermore, in a parliamentary address, Minister of Home Affairs, Amit Shah highlighted that the persistence of about 475 terms like 'British Crown', 'Barrister', 'Parliament of UK' etc. in over 400 instances, reflects a lingering colonial slavery, even after 75 years of independence

Beyond this, existing laws face many other challenges like a primary focus on punishment over justice, lack of gender neutrality, complicated structure etc..

All these issues have been diligently addressed in the new legislation.

Indian Penal Code to be replaced by Bharatiya Nyaya Sanhita (BNS)

In IPC, there are a total of 576 sections which are now proposed to be reduced to only 356 sections under BNS, where about 175 sections are proposed to be modified, 8 new sections to be added and 22 sections to be eliminated (which will be added in some other bill in some other way).

Provisions proposed to be eliminated in the new bill are as follows:
  • Section 14- Servant of Government
  • Section 18- India
  • Section 29A- Electronic record
  • Section 50- Section
  • Section 53A- Construction of reference to transportation
  • Section 124A- Sedition
  • Section 153AA- Punishment for knowingly carrying arms in any procession
  • Section 254- Delivery of coin as genuine, which, when first possessed, the deliverer did not know to be altered
  • Section 264-267- Offences relating to weights and measures
  • Section 309- Attempt to commit suicide
  • Section 310-311- Thug and Punishment for Thug
  • Section 376DA-376DB- Gang rape on women under the age of 16 & 12 respectively
  • Section 377- Sexual intercourse against the order of nature
  • Section 444- Lurking house trespass at night
  • Section 446- Housebreaking at night
  • Section 497- Adultery

Provisions which are proposed to be added in the new bill are as follows:
  • Section 48 - Abetment outside India for offence in India
  • Section 69 - Sexual intercourse by deceitful means or false promise to marry
  • Section 70(B) - Gang rape on women under the age of 18
  • Section 93 - Hiring, employing or engaging a child to commit an offence
  • Section 101(2) - Punishment for mob lynching
  • Section 104(2) - Punishment for non-reporting of rash or negligent act causing death
  • Section 109 - Organised crime
  • Section 110 - Petty organised crime or organised in general
  • Section 111 - Offence of terrorist act
  • Section 115(3) - Grievous hurt causing permanent disability or persistent vegetative state
  • Section 115(4) - Hurt caused by a mob
  • Section 150 - Acts endangering sovereignty unity and integrity of India
  • Section 224 - Attempt to commit suicide to compel or restraint exercise of lawful power
  • Section 302 - Snatching
As evident from the list, many contemporary crimes which are absent in the current legal framework have been considered to be added.

Code of Criminal Procedure to be replaced by Bharatiya Nagarik Suraksha Sanhita (BNSS)

In CrPC, there are a total of 484 sections which are now proposed to be expanded to 533 sections under BNSS, where about 160 sections are proposed to be modified 9 sections to be deleted & 9 new sections to be added.

Provisions proposed to be eliminated in the new bill are as follows:
  • Section 8 - Metropolitan Areas
  • Section 10 - Subordination of Assistant Sessions Judges
  • Section 16 - Courts of Metropolitan Magistrates
  • Section 17 - Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate
  • Section 18 - Special Metropolitan Magistrates
  • Section 27 - Jurisdiction in case of juveniles
  • Section 144A - Power to prohibit carrying arms in procession or mass drill or mass training with arms
  • Section 153 - Inspection of weights and measures
  • Section 166A - Letter of request to competent authority for investigation in a country or place outside India
  • Section 166B - Letter of request from a country or place outside India to a Court or an authority for an investigation in India
  • Section 197(3B) - Prosecution of judges and public servants
  • Section 355 - Metropolitan Magistrate's judgement

Provisions which are proposed to be added in the new bill are as follows:
  • Section 86- Identification and attachment of property of proclaimed person
  • Section 105- Recording of search and seizure through audio-video electronic means
  • Section 112- Letter of request to competent authority for investigation in a country or place outside India
  • Section 113- Letter of request from a country or place outside India to a Court or an authority for an investigation in India
  • Section 336- Evidence of public servants, experts, police officers in certain cases
  • Section 356- Inquiry, trial or judgement in absentia of proclaimed offender
  • Section 398- Witness protection scheme
  • Section 473- Mercy Petition in death sentence cases
  • Section 479- Bail and bond
Indian Evidence Act to be replaced by Bharatiya Sakshya Sanhita (BSS)

In the Evidence Act, there are a total of 167 sections which are now proposed to be expanded to 170 sections under BSS, where about 23 sections are proposed to be modified, 5 sections to be deleted & 1 new section to be added.

Provisions proposed to be eliminated in the new bill are as follows:
  • Section 3(j) - India
  • Section 82 - Presumption as to document admissible in England without proof of seal or signature
  • Section 88 - Presumption as to telegraphic messages
  • Section 113 - Proof of cession of territory
  • Section 166 - Power of jury or assessors to put questions

Provision proposed to be added in the new bill is as follows:
Section 61- Admissibility of electronic or digital record

Potential positive outcomes:
The primary noteworthy aspect is its commitment to gender neutrality, addressing a major criticism in the current laws. Specifically, from the perspective of perpetrators, the new legislation ensures gender neutrality.

For instance, under existing laws, the offence of 'outraging the modesty of a woman' is exclusively attributed to men, precluding any case against women. In contrast the proposed bills extend this crime to both genders, allowing for legal action against both men and women.

Hence, it indeed establishes gender neutrality from the perspective of perpetrator (though the same is still not mirrored in the context of victim).

Secondly, the government aims to enhance the efficiency and productivity of the legal system through these new bills. Provisions have been designed to ensure the delivery of equitable justice within a specified timeframe of three years from the date of filing a case. Additionally, the proposed legislation sets a maximum time limit of 180 days for filing a charge sheet, intending to expedite the trial process and avoid unnecessary delay.

In addition to these measures, the proposed legislation effectively identifies and rigorously addresses a wide range of contemporary crimes such as snatching, mob lynching, ATM theft, fake promise to marry, question paper leak, ponzi schemes etc.

Furthermore, distinct recognition is accorded to offences which severely threatens the security and integrity of India including terrorism, separatism, armed rebellion against the government etc. This is a departure from the previous practice of consolidating them under a singular section.

For the first time, the legislation incorporates innovative provisions by introducing community service as a form of punishment for minor offences such as drunkenness, theft below Rs.5000 etc.

Sedition, a very controversial law has been repealed. However, it's noteworthy that a very similar provision has been introduced in a modified form within the new legislative framework.

It has also been highlighted (in the names as well as the provisions) that the new laws prioritise the delivery of justice unlike the existing laws which focus more on punishments.

The new legislation demonstrates a better structure and makes a powerful departure from colonial slavery by eliminating the reference of terms like 'British Crown', 'Barrister' etc.

Summarily, the new legislation encompasses multiple commendable provisions. In addition to the aforementioned points, noteworthy features include the incorporation of digital advancements in legal proceedings, collaboration with forensic teams and technology experts in the legislative process, video recording of witness statements, video conferencing for trials, and ensuring due protection for innocent individuals during search and seizure by mandating videography and many more.

Potential adverse consequences:
Having discussed numerous potential positive changes, the uncertainty centres around the preparedness of our country's infrastructure to effectively implement these provisions. However, the ultimate measure of success or failure lies only in the hands of time.

Furthermore, due consideration must be given to the potential impact on our legal system, including the shifts in educational syllabus, modification in court proceedings, need for the legal professionals to revisit and reassess the relevant sections and many more.

In my opinion, the proposed bills hold potential benefits for society in future. However, the emphasis must be on planning, considering the fact that enacting laws is distinct from their effective implementation. A thoughtful approach, considering all stakeholders, is imperative to avoid any kind of inconvenience, particularly within our legal framework.

For instance, the coexistence of old and new laws in processing the pending and upcoming cases can lead to confusion and disruptions.

Thus, the true challenge lies not just in the introduction of new laws, but in their seamless execution and the efficient functioning of the legal system.

As we await the fate of these bills and their potential transformation into Acts, only time will reveal their success or otherwise.

  1. Former President of India, Pratibha Patil's speech, Times of India, 24 February 2008, Lucknow, pp 1,7 (Lucknow Edition)
  2. Zahira Habibullah Sheikh v State of Gujarat, AIR 2004 SC 3467
  3. Speech of Amit Shah, Minister, Home Affairs in the Parliament (PIB Press Release 11 August 2023 7:32PM)

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