The Indian Penal Code (IPC) serves as the official criminal code of the nation and had its inception in 1860, following the establishment of India’s inaugural law commission in 1834, which was a consequence of the Charter Act of 1833. The Indian Code of Criminal Procedure (CrPC) delineates the procedures for the enforcement of criminal law. Enacted in 1973, it came into effect on April 1st, 1974. The Indian Evidence Act, originally sanctioned by the Imperial Legislative Council of India in 1872 during the era of the British Raj, encompasses a set of regulations and associated provisions governing the admissibility of evidence in Indian courts of law.
On August 11, in the lower house of Parliament, Amit Shah, the Union Home Minister, introduced three significant legislative measures. Among these, the Bharatiya Nyaya Sanhita 2023 is set to supplant the Indian Penal Code of 1860, the Bharatiya Nagrik Suraksha Sanhita 2023 will take the place of the Criminal Procedure Code, and the Bharatiya Sakshya Bill 2023 is poised to replace the Indian Evidence Act of 1872.
Union Home Minister Amit Shah has asserted that these measures will facilitate comprehensive consultations within the judicial process. The primary elements of the legislation encompass the removal of sedition, the introduction of a novel penal code prohibiting mob lynching, the implementation of the death penalty for child rape, and the incorporation of community service as one of the penalties for minor offenses.
When presenting these Bills in the Lok Sabha on August 11, the Home Minister expressed his intent to decolonize the Indian justice system. The Standing Committee on Home Affairs will furnish a report after a three-month deliberation period.
The Standing Committee on Home Affairs has been tasked with reviewing the Bharatiya Nyaya Sanhita Bill, 2023, Bharatiya Nagarik Suraksha Sanhita Bill, 2023, and Bharatiya Sakhshya Bill, 2023. These three pieces of legislation, which seek to replace the Indian Penal Code of 1860, the Criminal Procedure Code of 1898, and the Indian Evidence Act of 1872, grant the Committee a three-month window to conduct hearings and present a report. Brijlal, a member of the Rajya Sabha from the BJP, serves as the chairman of the Standing Committee on Home Affairs. Home Minister Amit Shah introduced the three Bills in the Lok Sabha on August 11.
The administration has clarified that the objective of these bills is to rid the Indian legal system of its colonial vestiges. It has been pointed out that the British drafted and enacted all three of the laws that are now being repealed.
Mr. Shah, while introducing the Bills in the Lok Sabha, remarked, “We are poised to bring about reforms in both these crucial areas, replacing these three Acts that were initially designed to bolster British control and prioritized punishment over redress.”
The Bharatiya Nagarik Suraksha Sanhita Bill is slated to replace the CrPC, and it will now encompass 533 sections following alterations to 160 parts, the addition of nine sections, and the abolition of nine sections. Meanwhile, the Bharatiya Nyaya Sanhita Bill will include 356 sections, as opposed to the previous 511, with 175 sections modified, eight new sections introduced, and 22 sections abolished. The Bharatiya Sakhshya Bill now comprises 170 sections, an increase from the previous 167, with 23 sections amended, one new section added, and five sections repealed.
Key Features of Bharatiya Nyay Sanhita Bill 2023 or New IPC:
- The bill outlines acts of terrorism and includes offenses such as separatism, armed rebellion against the government, and actions that undermine national sovereignty, which were formerly addressed under separate legal provisions.
- It eliminates the offense of sedition, a relic of colonial times criticized for stifling criticism and freedom of expression.
- For mob lynching, a pressing issue in recent times, the maximum penalty is set at capital punishment.
- It proposes a 10-year imprisonment term for engaging in sexual activity with a woman under false pretenses of marriage, a common form of fraud and exploitation.
- The legislation introduces community service as a punitive measure for specific offenses, which can contribute to the rehabilitation of offenders and alleviate prison overcrowding.
- The law establishes a maximum time frame of 180 days for filing a charge sheet, aiming to expedite the trial process and prevent prolonged delays.
Key Features of Bharatiya Nagrik Suraksha Sanhita Bill 2023 or New CrPC:
- The legislation promotes the utilization of technology in court proceedings, appeals, and the documentation of depositions, facilitating the conduct of hearings through video conferencing.
- This measure mandates the recording of statements from survivors of sexual assault via video, a practice that aids in preserving evidence and preventing coercion or manipulation.
- As per the bill’s provisions, law enforcement is obligated to inform a complainant of the status of their complaint within a 90-day timeframe. This requirement enhances accountability and transparency.
- Section 41A of the CrPC is now renamed as Section 35. This amendment introduces an additional safety provision, stipulating that arrests may not occur without prior approval from an officer holding at least the rank of Deputy Superintendent of Police (DSP), particularly in cases where the maximum sentence is less than three years or the suspect is over 60 years old.
- To ensure the integrity and delivery of justice, the legislation mandates that the police contact the victim before closing a case with a potential sentence of seven years or more. \
- It empowers judges to conduct trials and issue sentences in absentia for fugitives, a provision aimed at discouraging evasion of justice.
- The law grants magistrates the authority to consider violations based on electronic records such as emails, SMS messages, WhatsApp communications, etc., simplifying the process of collecting and analyzing evidence.
- Mercy petitions in cases involving death sentences must be submitted to the Governor within 30 days, and to the President within 60 days, ensuring a timely review process.
- The President’s decision in such cases is final and cannot be appealed in any court of law.
Key Features of Bharatiya Sakshya Bill 2023 or New Indian Evidence Act:
- The legislation defines electronic evidence as any information that is capable of being stored or retrieved through various means and has originated from or been transmitted by any device or system.
- It sets forth specific criteria for admitting electronic evidence, including considerations of authenticity, integrity, and reliability, with the aim of preventing the improper use or manipulation of digital data.
- The law introduces special admissibility requirements for DNA evidence, encompassing aspects like consent and maintaining a secure chain of custody, among others. These provisions aim to enhance the accuracy and trustworthiness of biological evidence.
- Expert opinions, such as those from medical professionals or handwriting analysts, are recognized as valid forms of evidence, contributing to the establishment of relevant facts or circumstances.
- The legislation enshrines the presumption of innocence as a foundational principle within the criminal justice system. This means that all individuals accused of a crime are deemed innocent until proven guilty beyond a reasonable doubt.
In contrast to the Indian Penal Code (IPC), the procedural law has seen fewer changes in both its substance and the reorganization of its existing sections. However, this doesn’t imply that no modifications have been introduced.
The new legislation doesn’t contain many inadvertent errors, notably the provision permitting discharge applications after charges have been filed. These can be rectified with a few textual adjustments. Most of the alterations are well-intentioned and necessary.
Nonetheless, there are a few changes that raise concerns. For example, the expansion of investigative powers regarding search and seizure, the authority to obtain samples from a larger pool of individuals, the curbing of commutation powers, the reintroduction of preliminary inquiries before filing FIRs, the reinstatement of handcuff usage, and lastly, the revisions to the remand procedure are some of the problematic aspects that require careful consideration. To enhance procedural law, the administration of criminal justice ideally should involve improved funding and infrastructure, along with enhanced safeguards.
It’s worth noting that the IPC and Evidence Act were enacted in 1860 and 1872, respectively, while the CrPC came into existence in 1973. Consequently, the criminal procedure isn’t technically part of the colonial legacy. Instead, many of the changes made to the CrPC were the result of efforts by the Indian Supreme Court to constitutionalize criminal procedure for the benefit of society following the end of the emergency.
As part of the decolonization process stemming from a 1973 law, it appears that the act’s name has been altered, and all references to the term ‘code’ have been substituted with the term ‘Sanhita’. Nevertheless, one could argue that the continued presence of problematic features, such as the broad discretion granted to authorities in matters of arrest and investigation, gives the impression of colonialism.
Read more in detail about the introduced bills
