Context:

Recently, The Union Home Minister  introduced three Bills in the Lok Sabha to replace  to replace, i.e IPC 1860, Indian Evidence Act 1872, and CrPc 1898.

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Criminal law in India is primarily governed by:

• Indian Penal Code, 1860: Defines criminal offenses and their punishments.
• Code of Criminal Procedure, 1973: Regulates the procedural aspects of criminal cases.
• Indian Evidence Act, 1872: Governs the rules for the admissibility of evidence in court.

The Bills Introduced are:

• Bharatiya Nyaya Sanhita (BNS), 2023: This Bill aims to replace the Indian Penal Code (IPC), which was enacted in 1860. 
  • Repeal of Provisions: The Bill seeks to replace the IPC by repealing 22 of its existing provisions.
  • Changes to Existing Provisions: The Bill proposes alterations to 175 existing provisions within the IPC.
  • Introduction of New Sections:
    • Section 109: Organized Crime
    • Section 110: Petty Organized Crime: 
    • Section 111: Offence if Terrorist Act
    • Section 150: Acts Endangering Sovereignty, Unity, and Integrity
    • Section 302: Snatching
• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: This Bill seeks to replace the Code of Criminal Procedure, 1973 (CrPC), which originally came into effect in 1898. 
  • It proposes changes to 160 provisions and introduces 9 new provisions. 
  • It contains a total of 533 sections.
• Bharatiya Sakshya (BS) Bill, 2023: This Bill aims to replace the Indian Evidence Act, 1872. 
  • Proposes changes to 23 provisions and introduces one new provision. 
  • It contains 170 sections in total.

History of the Criminal Justice System in India:

• British Rule and Codification: Criminal laws were codified, and this framework largely persists into the present day.
• Lord Thomas Babington Macaulay played a pivotal role in shaping India’s criminal laws during British rule.
  • He is often regarded as the chief architect of the codification of criminal laws in India.

Criminal law reforms committee:

• May 4, 2020: The Ministry of Home Affairs in India, on May 4, 2020, established a committee with the objective of reviewing and recommending reforms to the three major codes of criminal law that constitute the foundation of India’s legal system. 
  • Headed by: Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi
  • Mandate: To assess and suggest changes to the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act.
• February 27, 2022: The committee submitted its recommendations on the criminal law amendments.

Need For the Bill:

• Pendency and Delay: The existing complex procedures of IPC, CrPC, and Indian Evidence Act have contributed to substantial court backlogs and delayed justice delivery.
  • As on December 31, 2022, the total pending cases in district and subordinate courts was pegged at over 4.32 crore.
• Low Conviction Rates: The prevailing legal framework has resulted in a low conviction rate, highlighting the need for reforms to enhance the efficacy of criminal proceedings.
  • According to the NCRB report 2022, on an all-India basis, the total conviction rate for IPC crimes stood at 57%.
• Overcrowded Prisons and Undertrials: The present system has led to overcrowded jails and a significant number of undertrial prisoners awaiting their trials.
  • According to a report on prison statistics for 2019 released by NCRB, National Crime Records there were 4,78,600 inmates lodged in different prisons in India while they  had capacity to 4,03,700 inmates. 
• Introduction of New Offences: The proposed Bills bring about significant changes by introducing new offences that were absent in the IPC, addressing issues like acts endangering sovereignty, organized crime, terrorism, mob lynching, and sexual intercourse based on deceitful means or false promises of marriage.

Bharatiya Nyaya Sanhita Bill, 2023:  key highlights of the proposed changes and additions

• Repeal of Sedition as Section 124A: The new Bill completely repeals the offense of sedition as it was outlined in Section 124A of the IPC.
  • Introduction of New Provision – Section 150: While the term “sedition” is removed, the offense is introduced under a new name in Part VII of the Bharatiya Nyaya Sanhita Bill, titled ‘Of Offences against the State.’ 
  • This section, denoted as Section 150, explicitly criminalizes “acts endangering sovereignty, unity and integrity of India.”
  • Expanded Definition and Elements: These include intentionally inciting or attempting to incite secession, armed rebellion, subversive activities, or encouraging feelings of separatist activities. 
  • Change in Punishment: Section 150 increases the maximum punishment to 7 years of imprisonment, compared to the 3 years imprisonment provided under Section 124A of the IPC.
• Punishments for Gang Rape and Rape of Minors: The Bill proposes that all forms of gang rape be punishable by 20 years of imprisonment or life imprisonment.
  • Additionally, the rape of a minor is punishable by the death penalty, indicating a stringent stance on crimes against minors.
• Capital Punishment for Mob Lynching: For the first time, capital punishment has been introduced as a penalty for the offense of mob lynching. 
  • The offense (Section 101) is defined as murder committed by a group of five or more individuals acting in concert on the grounds of factors such as race, caste, community, sex, place of birth, language, personal belief, or any other ground.
• Criminalization of Sexual Intercourse Under False Pretexts: The Bill criminalizes sexual intercourse obtained through deceitful means, false promises of marriage, or suppression of identity. 
  • The maximum punishment for this offense is proposed to be 10 years of imprisonment.
  • Deceitful Means: Include the false promise of employment or promotion, inducement or marrying after suppressing one’s identity.
• Omission of Adultery Offense: The provision criminalizing adultery has been omitted, in line with a previous Supreme Court ruling (Joseph Shine v. Union of India) that deemed Section 497 of the IPC unconstitutional.
• Exclusion of Punishment for Unnatural Sexual Offenses: The Bill does not include any punishment for ‘unnatural sexual offenses against men,’ in accordance with the Supreme Court’s reading down of Section 377 in Navtej Singh Johar v. Union of India.
• Retaining Marital Rape Exception: The provision allowing exceptions for non-consensual sexual acts within a marital relationship has been retained, even though it remains a subject of ongoing legal and social debate.
  • Sec 375 of IPC: It defines rape and lists seven notions of consent that, if vitiated, would constitute the offence of rape by a man.
• Trial in Absentia: The provision for trial in absentia is a significant change. It allows for trials to take place even when the accused is not present in the country. 
  • Ex, absconding criminals such as underworld don Dawood Ibrahim will be tried in-absentia by court.
• Restrictions on Punishment Waivers: To prevent political misuse of punishment waivers, the new law limits the conversion of death sentences to life imprisonment. 
  • Additionally, life imprisonment can only be pardoned within seven years of punishment.
  • And seven years imprisonment can be waived off only up to three years. 
• Definition of Terrorism: The Bill introduces a legal definition of terrorism, describing it as acts committed with the intent to threaten India’s unity, integrity, and security, and to intimidate the public or disturb public order. 
  • The legislation also includes provisions for the attachment of property belonging to terrorists.
• Community Service and Solitary Confinement: Introducing new forms of punishment, such as community service and solitary confinement.
  • Offences including small theft, defamation, and attempting to commit suicide.

Bharatiya Nagarik Suraksha Sanhita Bill, 2023:

• FIR by Electronics communication: It allows for filing of First Information Report to the police “by electronic communication”. 
  • However, it requires the complainant to sign the record within three days of filing it.
• FIR Accessibility: A provision is introduced to ensure that copies of First Information Reports (FIRs) are made available to the accused and the victim free of cost within fourteen days from the date of production or appearance of the accused.
• Zero FIR: The Bill allows for the filing of a zero FIR from any part of the country. This enables a police station to register an FIR for an offense that falls under another police station’s jurisdiction and then transfer it to the relevant station.
• Greater Use of Technology: Trials, appeals, depositions, and accused statements can be conducted electronically.
  • Summons, warrants, documents, and evidence statements can be in electronic form.
  • Search, seizure, and crime scene visits will be audio-videographed.
  • Arrested accused details will be maintained and displayed digitally in police stations.
• Communication Devices and Summons: Electronic communication, including devices, added to the summons provision.
  • Individuals must produce digital evidence-containing documents or devices as directed by court or police.
• Specific Safeguards for Arrest: No arrest without permission of Deputy SP for offenses punishable < 3 years or for elderly above 60 years.
  • Preliminary inquiry needed for offenses attracting 3-7 years within 14 days.
• Mercy Petitions: Framework for filing mercy petitions in death penalty cases.
  • Mercy petition to Governor within 30 days; if rejected, petition to President within 60 days.
• Samples Without Arrest: Magistrate can order samples of signature, handwriting, voice, or finger impressions for investigation without arrest.

Bharatiya Sakshya Bill, 2023:

• Admissibility of Electronic Records: The Bill permits the admissibility of electronic or digital records as evidence, recognizing technological advancements.
• Expansion of Secondary Evidence: The scope of secondary evidence has been expanded to include various forms, such as copies made from the original by mechanical processes, counterparts of documents, and oral accounts of document contents given by a person who has seen it.

Concern with the Bill:

• Addressing Long-standing Problems:
  • Overcrowded prisons and high proportions of undertrials persist as a crisis.
  • Reforms in bail adjudication remain insufficient, failing to prioritize bail as the default option.
• Sovereignty Provision: The vague “acts endangering sovereignty” provision raises concerns over arbitrary arrests and potential infringement on civil liberties.
• Forensics and Electronic Evidence: Despite emphasizing their use, the Bills lack clear guidelines for handling forensic evidence, raising doubts about its reliability and admissibility.

Conclusion: 

The Bills propose changes, the true essence of overhauling the criminal justice system might not be fully realized. Achieving lasting change demands not only legislative amendments but also a comprehensive reevaluation of institutional cultures and practices, aiming for a more just and effective system.

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