Author: Sayan Sarkar, a student at South Calcutta Law College
Abstract:
India’s criminal justice system, as framed under the colonial enactments of the Indian Penal Code (IPC), 1860, has undergone a sea change since independence. Under withering flak for failing in the “handling” of modern challenges like cybercrime and terrorism, the system saw the enactment of three landmark enactments in 2023, namely Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Ashiniyam (BSA).
These are aimed at replacing the antiquated legal framework by strengthening criminal investigation to make it more effective, updating procedural norms, and the sophistication of contemporary crimes.
This article shall assess these changes by comparing the old and new laws, studying key case laws, and exploring the roles of special investigative agencies. This new legislation, although forward-looking, still indicates that many reforms are needed to overcome strong colonial features and inefficiencies. Proper and efficient implementation of new laws holds decisive significance in addressing the progressing dynamics of criminal activity.
Introduction:
Indian criminal justice system, since its inception, has passed through a sea of changes, conceived within the basic political and social legacy of colonialism. The basic acts-the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act (IEA)-which were enacted during British colonialism, have, for long been ruling the roost of India’s legal administration.
Although these instruments have helped significantly in defining criminal jurisprudence in post-colonial India, they have faced intense criticism because of the archaic provisions, procedural shortcomings, and colonial bias of the contents.
Such legislation, despite numerous amendments and landmark judicial pronouncements into it to refine these statutes, has brought efficiency into the system in terms of protracted litigations and delays in justice and inability to make responses to emerging forms of crime such as cybercrime, terrorism, and white-collar offences. The colonial law statutes were essentially criticised for creating a culture of the punitive approach instead of a rehabilitative framework for covering the complexities in modern socio-economic realities. Recognising these lacunae, the Government of India brought in three path-breaking enactments-the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Ashiniyam (BSA)-to supplant the provisions of IPC, CrPC, and IEA respectively. In a way, the new enactments that have come into force to meet the complexities of the criminal scenario are changing tides towards decolonisation of India’s legal set-up and their adaptation to the changes in the contemporary socio-political and technological scenario.
These legislative reforms strengthen procedural efficiency, ensure the protection of civil liberties, and introduce stricter provisions for new crimes such as digital offences, organised crime, and terrorism, thereby ensuring justice delivery is both timely and equitable. The following article advances and explores the history of India’s criminal justice system, critically analysing some of the old colonial legislation along with the new provisions under the criminal legislations. By the aid of some of the relevant case laws, it has been attempted to broadly focus on the features of these statutory changes and evaluate the extent to which the new legal framework addresses the inherent challenges of the old system.
Further, the comparative analysis of both the old and new legal orders will expose how the reforms stand at a paradigm shift, particularly in respect of provision offered to victims, strong mechanisms about digital forensic, and a focus on balanced administration of justice.
Overview of Three Old Criminal Laws: Indian Penal Code, 1860, Code of Criminal Procedure, 1898 as Revised in 1973, and Indian Evidence Act, 1872:
Three major enactments govern India criminal justice system; derived directly from colonial jurisprudence, the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA). The very statutes, which could be said to be revolutionary when enacted, have met with criticism on grounds of inadequacies in catering to the needs of modern society, specially after independence.
This section comparatively analyses these archaic criminal laws, reviewing their provisions, limitations, and judicial responses to the evolving societal challenges.
Indian Penal Code, 1860 (IPC): It was enacted during the British rule and covered all criminal offences in India. Thus, this resulted in the maintenance of colonial law order. But it is criticised for its rigidity and failure to address modern crimes such as cybercrime and white-collar crime. Sections such as Section 420 (cheating) and Section 463 (forgery) were inadequate for complex financial frauds.
The Code of Criminal Procedure, 1973 (CrPC): The CrPC clearly lays down the procedural structure of criminal law enforcement, though still replete with vestiges of colonialism, being primarily concerned with process formalities at the cost of time. Provisions like Sections 154 and 167- their first information report and custodial detention-are grossly misused, entailing long-winding trials.
The Indian Evidence Act, 1872 (IEA): Regulating admissibility of evidence, it has never kept pace with the fast-changing technological landscape. Inclusion of Section 65B dealing with electronic records occurred as a last-minute amendment; interpretation and application also brewed judicial confusion.
What remained the essence of the criminal justice system of India were the IPC, the CrPC, and the IEA; yet, they were deemed woefully inadequate to tackle the issues of modernity.
Besides, the continuation of colonial hierarchies of law enforcement left great imbalances of power to the police and inadequate judicial review.
Case Law: D.K. Basu v. State of West Bengal (1997) exposed police power abuse through custodial torture. Consequently, the Supreme Court of India made guidelines to prevent such judicial violation and appealed for increased judicial review over the police authority.
Overview of the three new criminal laws: Bharatiya Nyaya Sanhita (BNS), The Bharatiya Nagarik Suraksha Sanhita (BNSS), and The Bharatiya Sakshya Ashiniyam (BSA):
These three new enactments-comprising Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Ashiniyam (BSA)-have replaced colonial statutes in the form of Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA), on all issues with provisions more responsive to modern legal challenges and changing crime dynamics.
- Bharatiya Nyaya Sanhita (BNS):
The BNS replaced the IPC. In fact, where the IPC was falling short, BNS has incorporated most of the current socio-political realities. For example:
Section 100: The enlarged definition of “murder” as grievous bodily harm and criminal negligence resulting in death.
Section 354: Expands the definition of sexual harassment to include harassment through electronic means.
Section 376A: Increased penalty for rape shall cover digital exploitation.
Case Law:
Mukesh v. State (2017): This case demands strict definition and punishment of sexual offences. The BNS takes it a notch forward with an expansion of sexual crimes in the light of modern realities.
Ajmal Kasab v. State of Maharashtra (2012): Kasab’s conviction under IPC provisions led to the BNS introducing stricter measures for terrorism, enhancing procedural mechanisms for handling such offences.
2. Bharatiya Nagarik Suraksha Sanhita (BNSS):
The BNSS replaced the CrPC. Its justification emphasises the angle of both procedural expediency and safeguarding civil liberties. Main provisions:
Section 167: Reduces police custody period from 15 days to 7 days in minor offences.
Section 41A: Requires prescribed notice before effecting an arrest, thereby avoiding arbitrary detention.
Section 265A: Extends plea bargaining to accelerate case disposed.
Case Law:
Hussainara Khatoon v. State of Bihar (1979): The critical aspect of under-trials brought out by this judgment is directly addressed by BNSS with quicker delivery of judgments and, thereby reducing the period of custodial detention.
Arnesh Kumar v. State of Bihar (2014): The Supreme Court condemned the abuse of arrest powers; the BNSS has tried to restrict this with more stringent procedures.
3. Bharatiya Sakshya Ashiniyam (BSA)
The BSA replaces the IEA, modernising evidence rules to reflect 21st-century technological advancements. Key provisions include:
Section 65B: Simplifies the process of tendering electronic evidence.
Section 3: Expands the definition of “relevant facts” to include electronic evidence.
Section 45: Strengthen the status of expert witnesses in cases involving techno scientific facts.
Case Law:
Anvar P.V. v. P.K. Basheer, 2014: Established very stringent requirements for electronic evidence. The BSA relaxes these requirements to encourage admissibility of the evidence.
Shafhi Mohammad v. State of Himachal Pradesh (2018): This judgment granted lenient stipulations for digital evidence, a norm which finds codification under the BSA.
Comparison Between the Old and New Criminal Laws:
What has now replaced the colonial era statues is Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Ashiniyam. That in itself is a sea change in the Indian criminal justice system. Though the IPC and CrPC constitute the backbone of India’s criminal procedure, these were characterised by a plethora of procedural delays and anachronistic provisions that did not bring home the reality of crimes such as cybercrime, terrorism, and white-collar offences. For instance, undertrial cases in the old system-an example being Hussainara Khatoon v. State of Bihar-show inefficiencies in dealing with custodial periods. BNSS streamlines custodial periods and introduces plea bargaining mechanisms to hasten justice.
On the other hand, BNS expands criminal liability, especially in terrorism and digital exploitation cases. Its treatment will ensure a more stringent and responsive legal framework. The BSA simplifies electronic evidence admissibility, addressing the antiquated evidentiary processes the IEA derives. This point was discussed in Anvar P.V. v. P.K. Basheer.
While the colonial laws served as the base for post-colonial India, the new legal framework goes a long way in resolving many of the present-day challenges by ensuring expedient justice that is victim-centric and increases protection against procedural inefficiencies and such misuse of power by law-enforcement agencies.
Conclusion:
Such transformation speaks to a conscious and ongoing endeavour at the end of 78 years to dismantle the colonial legal structure of India and replace it with a system that resonates with the socio-political reality of today. Transition from the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act to Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Ashiniyam (BSA) marks a tectonic shift toward a more stronger, victim-centric, and procedurally efficient legal architecture.
Though the colonial statutes in vogue constituted the bedrock of India’s criminal jurisprudence, they were incapable of efficaciously dealing with crimes such as cybercrime, terrorism, and white-collar offences that characterise the modern crime scenario. The bottlenecks in procedure and the punitive bias that has become part and parcel of these archaic laws led to miscarriages of justice, undue delay and protracted litigation that many a times infringed the fundamental rights of the people.
To reflect, case law-the cases of Hussainara Khatoon v. State of Bihar and Arnesh Kumar v. State of Bihar-all reflect the inefficiencies within the old system compelled judicial interventions for upholding constitutional guarantees.
In contrast, criminal laws in place today are more progressive, protecting civil liberties and combining stringent provisions against new crimes and smoothed mechanisms of law enforcement. Reduction by the BNSS concerning custodial periods, the emphasis by the BNS with regard to the greater value as a deterrent in the areas of terrorism and digital exploitation, and the liberalisation by the BSA on the admissibility of digital evidence are all steps towards that greater broad justice. The same reforms, however, will succeed only in so far as the systemic hurdles, be it pendency of cases, judicial delays, or even the sheer colonial mentality inside the enforcing agencies, are overcome. Proper and sustained training, capacity-building, and even sensitisation of judicial and investigative bodies would still remain paramount to fully realize the objects of these legal reforms.
In other words, whereas the BNS, BNSS, and BSA lawmaking represents a historial step away from the colonial legal apparatus, the journey toward substantive and procedural justice is far from over.
These new legislation forms the bedrock on which a dynamic, equitable, and effective criminal justice system would be built, responsive to the changing needs of a modern democracy but with continuous judicial reform and vigilant oversight to uphold the rule of law and see to it that justice is served efficiently and timely.
FAQ
Q1: How are the new laws different from colonial-era laws?
The new laws, BNS, BNSS, and BSA provide relatively modern responses to crimes in comparison with the colonial-era laws, IPC and CrPC. Whereas the latter was mainly aimed at physical crimes, the new laws relate to electronic crimes, organised crimes as well as gender-sensitive offences
.
For instance, the Nirbhaya Case of 2012 brought massive amendments to rape laws under the CrPC, but the new BNS enhances the said provisions with stiffer punishments and procedural safeguards for victims.
Q2: What are the kinds of ways the new provisions aim to mitigate white-collar crimes?
The new statutes pay more attention to financial fraud and corporate crimes, among other things, with the BNS strengthening the attendant provisions of penalties for crimes such as money laundering, insider trading, and corporate fraud, in terms of increasing complexity and scope.
Q3:What new legal framework changes does the country make in response to cybercrime?
The new legal framework of Bharatiya Nyaya Sanhita and Bharatiya Sakshya Ashiniyam especially with regard to offences such as hacking, identity theft, and online frauds have been specifically addressed. It would incorporate provisions for permitting the admissibility of digital evidence, faster procedures for investigation.
Q4: How do the new laws affect the colonial hierarchies in the law enforcement order?
The single most crucial aspect that this new law tries to destroy is the very structure of colonial hierarchies buried within the criminal justice framework of India. For example, BNSS provisions reduce arbitrariness in the exercise of police powers by introducing relatively more transparent procedures. They include checks on the powers of preventive detention, which had been grossly misused in the colonial regime, are a strengthening step to decentralise law enforcement and uphold the rights of citizens.
Q5: How does the new legal framework deal with issues of state policing?
The BNSS contains provisions dealing with reformation in state policing in the form of strengthening accountability mechanisms and adopting more people-friendly measures. There is stronger regulation for the exercise of police discretion and arrest powers and greater emphasis on protection for civil liberties.
Robust reviewing mechanisms are to be now introduced in order to curb excesses such as those that characterise cases such as DK Basu v. State of West Bengal, 1997, where custodial violence exemplified the imperatives of police reforms.
Q6: In what ways will these laws affect the overall efficiency of India’s criminal justice system?
These laws are expected to promote the efficiencies of the criminal justice system as bottlenecks associated with procedural delays, access to justice for the weaker sections, and using modern investigation tools will be addressed. With the BNS smoothing the procedural pathways for arrest, bail, and trials, coupled with enhanced provisions for digital evidence under the BSA, there is bound to be some efficiency in the criminal justice system’s performance in consonance with what is desired today.
