Implementation of New Criminal Codes

• From 1st of July 2024, the three laws of our criminal justice system, the Indian Penal Code, the Criminal Procedure Code, and the Evidence Act, are going to be replaced and new Acts in their place will come into effect.
  • The new Acts will respectively be called the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam  (BSA).

IPC to Bharatiya Nyaya Sanhita (BNS)

• More relevance has been given to offenses against women and children. 
  • New law under section 69: Offenses against sexual intercourse by deceiving or by false promise of marriage.
• Terrorism and terrorist acts: For the first time terrorism and terrorist acts have also been considered under the new Act. They are regarded as a specific offense.
• Sedition law: The most important addition is also the reintroduction of the sedition law in the current form in the new Act under section 150.
  • This section actually gives a very wide and open description to what is considered as activities against the sovereignty and unity and integrity of the nation.
• Death by negligence: It has also been given more importance under the new law probably due to the increased incidence of accidents and hit and run cases. 
  • Under the new Act (section 106) the punishment has been enhanced from two to five years. 
• New Balance form of punishment in the form of deterrence and reformation by introducing punishment by way of community service. 
• ‘Mob Lynching”: The new Act also includes the act of ‘Mob Lynching” as an offence and now treats it at par with the offence of Murder.

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Cr.P.C to Bharatiya Nagrik Suraksha Sanhita (BNSS)

It has given more power to the policing system.

• Registration of FIR
  • Under the old law registration of FIR in cognizable offences was one of the first steps and only a few exceptions were provided for preliminary enquiry before registration of an FIR, like in commercial disputes, matrimonial disputes etc. 
  • However the new law lays down the statutory requirement for the police to conduct a preliminary enquiry first to determine if prima facie cases are made out before registering an FIR.
    • Hence offenses like criminal breach of trust, cheating, forging documents may also fall under this category and may now not automatically be eligible to be registered into an FIR.
• Additional power of attachment 
  • Investigating agency to attach properties in line with the powers that the  Enforcement Directorate now has.
• More emphasis on trial in electronic mode and through electronic communication: It provides for even statements of witnesses and victims to be recorded through video conferencing.
• Trial against absconder:  It also brings about a change where it allows a trial to be conducted against a person who is declared as an absconder even in his absence.

Indian Evidence Act to Bharatiya Sakshya Adhiniyam  (BSA)

• AIM: To modernise and streamline the Court process, the way evidence is led and to bring in more digital and oral forms of evidence to be included as admissible evidence during court proceedings.
• Certain definitions Changes:  
  • Application of the old act to the entire territory of India has been modified in the new act and the word ‘India’ has been omitted. 
    • This has the effect of giving prominence to digital and other forms of evidence being admitted from outside the country. 
  • Definition of the word ‘document’ has been expanded to include electronically recorded evidence through computer system smartphones and other digital devices.
    • Recording of evidence will now encompass audio recordings, video recordings and other forms of recording.
• Trial of more than one person: if one of the accused has absconded or fails to comply with the proclamation issued under Section 82, the trial can proceed in absentia. 
• • It shall be deemed to be a joint trial for the purpose of the new Act.
• Recognises oral admissions and evidences from ‘experts skilled experts’ such as financial documents etc.
• Act has also done away with the term’ lunatic’ 
  • Ihas come out with a more comprehensive term as ‘person of unsound mind’

Challenges – Alarming Changes

Police Powers:

• Section 187 of the BNSS substantially increases police powers by expanding the maximum limit of police custody from 15 days to either 60 days or 90 days. 
• Section 167(2)(a) of the CrPC allows the magistrate to extend custody of an arrested person beyond 15 days as long as it is not in police custody
  • Section 187(3) of the BNSS has deleted the words “otherwise than in police custody” that exist in the CrPC
• Removal of mandatory registration of FIR in cognizable offences is also seen as a regressive step. 
  • Giving more power and discretion to the investigating agency can be misused. 
  • There are certain advantages, however, of the new laws as they place greater emphasis on digitalisation.

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Addition of Vague Offences Against Civil Liberties. 

• Provisions on “false and misleading information” (section 197) and “acts endangering sovereignty, unity, and integrity of India” (section 152 as the replacement for sedition) are extraordinarily vague with no real indication of when the police can initiate action under these provisions. 

Permits Trials in-Absentia:

• Prosecution and adjudication of complete trials against absconding proclaimed offenders in their absence. 
• While the CrPC only allowed for the evidence to be recorded in the absence of the accused, the BNSS completely suffocates the accused’s right to defend themselves.

Entire System will keep Oscillating between the old laws and the new laws:

• While section 358 of the BNS states that the IPC will continue to apply in case of offences under the IPC, it is unclear whether the IPC will only apply to cases in which the date of the offence is before July 1 or also in those instances where some proceedings, investigation, or remedy concerning an offence under the IPC are pending. 
• Section 531 of the BNSS and Section 170 of the BSA state that if there is any appeal, application, trial, inquiry or investigation pending before the enforcement of the new legislation then such proceedings will be governed by the provisions of the CrPC or IEA. 

Digital Legal Infrastructure:

• The digital legal infra in more than 80% of the entire Court System in the country lacks even basic facilities. 
• So, this is going to be a major challenge for implementing the new laws and the procedural trials like trial by absentia.

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Way Forward

• Training: Police personnel in every single police station need to be ready with the knowledge of these laws for even the very first step of registering FIRs from July 1.
• Preparation: Multiple levels of judicial officers, court staff and prison officials are required to be prepared. 
  • The judges of various courts and the police forces have been provided with mandatory and organized training sessions. 
    • However, there has not been any such programmed/mandatory sessions for lawyers.
• New laws were passed arbitrarily and in haste: The implementation of these laws must be postponed until there is a thorough and independent audit of the preparedness of our criminal justice institutions across the states.