Author: Ritika Sharma, Lords University, Alwar
Abstract
A significant change in the Indian legal system is marked by the Criminal Law Reforms of 2023, which signal a departure from the colonial-era laws that have dominated the nation’s criminal jurisprudence since the 19th century. In an attempt to rethink and reorganize the fundamental tenets of criminal law, procedure, and evidence in India, the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) were introduced. Through the introduction of digital integration, the improvement of victim-centric provisions, and the simplification of procedural timelines, these new laws seek to modernize the justice delivery system. Highlights include the explicit criminalization of mob lynching, the abolition of sedition, the increased use of electronic and forensic evidence, and the digitization of procedural procedures.
This redesign is not without its detractors, though. Since many of the old codes’ provisions have been kept with only minor renaming and reordering, many contend that these reforms are more cosmetic than substantive. In addition, there are still issues with reverse burdens of proof, civil liberties, custodial powers, and implementation difficulties. In order to determine the three statutes’ possible influence on India’s legal system, this article provides a thorough analysis of them, compares them to earlier colonial laws, assesses their constitutionality, and includes pertinent case law.
Introduction
India’s criminal justice system has frequently been criticized for being antiquated, hostile, and out of step with the demands of a contemporary democratic society because it was primarily developed during British colonial rule. India’s criminal law has been based on the Indian Penal Code (IPC), which was passed in 1860, the Code of Criminal Procedure (CrPC), which underwent a major revision in 1973, and the Indian Evidence Act of 1872 for more than a century. Even though these laws have been changed from time to time, they are essentially colonial in origin and prioritize state power and deterrence over victim rights and criminal rehabilitation.
A landmark set of laws was introduced by the Indian government in 2023 to replace these colonial-era codes with newly drafted laws that are in line with modern values, technology, and social norms. The government recognized the urgent need for reform. In order to decolonize the criminal justice system, improve efficiency, and guarantee victim-centered justice, the Bharatiya Nyaya Sanhita, which replaces the Indian Penal Code, the Bharatiya Nagarik Suraksha Sanhita, which replaces the CrPC, and the Bharatiya Sakshya Adhiniyam, which replaces the Indian Evidence Act, have joined forces. In addition to representing a departure from the past, this legislative reform aims to bring India’s criminal code into line with international best practices, constitutional principles, and the realities of contemporary governance.
Bharatiya Nyaya Sanhita, 2023 (BNS)
The Indian Penal Code of 1860 has been superseded by the Bharatiya Nyaya Sanhita (BNS), which is the country’s new substantive criminal law. The BNS is portrayed as a more simplified and easily readable document, with 358 sections as opposed to the IPC’s 511. This code’s main goal is to update criminal definitions and punishments while maintaining a balance between justice and deterrence. The BNS’s repeal of the sedition law under Section 124A of the IPC is among its most well-known aspects. Section 150 of the BNS replaces it with a clause that makes actions that jeopardize India’s integrity, unity, or sovereignty illegal.
Although this action has been praised as a progressive step, detractors warn that Section 150’s ambiguous and expansive wording could still be abused to suppress free speech and political dissent. By clearly criminalizing mob lynching, a type of violence for which the IPC contained no special provisions, the BNS also makes a noteworthy attempt to address social realities. In recognition of the growing threat posed by such vigilante and communal violence, Section 103(2) expressly criminalizes mob lynching. Additionally, the BNS begins the process of broadening the scope of criminal law terminology. Some attempt has been made to use gender-neutral language in areas like stalking and voyeurism, even though provisions pertaining to sexual offences still follow the traditional framework.
The BNS also includes provisions on organized crime, cybercrime, and terrorism in an effort to combat emerging forms of crime. While other sections cover organized crime networks and digital offenses, which were previously prosecuted under separate provisions, Section 113 focuses exclusively on acts of terrorism. But even with these additions, a number of serious issues still exist. The BNS continues to criminalize some types of consensual behavior and maintains the death penalty provision, demonstrating that it still adheres to punitive rather than rehabilitative justice philosophies.Sedition and other similar laws have historically been interpreted cautiously by the courts.
For instance, the Supreme Court ruled in Kedar Nath Singh v. State of Bihar that sedition could not be used unless there was a violent incitement. The Court ruled that the ambiguous internet speech provisions in Shreya Singhal v. Union of India were unconstitutional. To avoid abuse, the interpretation of Section 150 of the BNS should be guided by these cases. All things considered, even though the BNS makes admirable progress, crucial judicial and legislative involvement is still needed to fully realize its transformative potential.
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
The 1973 Code of Criminal Procedure has been superseded by the Bharatiya Nagarik Suraksha Sanhita (BNSS), which forms the procedural foundation of India’s criminal justice system. Reorganized from the CrPC’s 484 sections, the BNSS has 531 sections and incorporates a number of procedural innovations to guarantee efficiency, transparency, and digital integration.
The requirement that search and seizure operations be videotaped under Section 107 is one of the major reforms included in the BNSS.
This clause is an attempt to increase transparency by limiting police abuses and guaranteeing the integrity of the evidence. Additionally, by permitting electronic registration and submission from any location, the BNSS modernizes the First Information Report (FIR) filing process.
Additionally, by permitting electronic registration and submission from any location, the BNSS modernizes the First Information Report (FIR) filing process. Victims can report crimes without waiting for jurisdictional delays thanks to Section 173, which codifies the procedure for digital FIRs and zero FIRs. Additionally, the BNSS establishes stringent deadlines for different phases of the procedure. According to Section 193, investigations into offenses carrying a sentence of less than three years in prison must be finished within ninety days, and charges must be framed within thirty days of the charge sheet being filed. If correctly put into practice, these steps could guarantee prompt justice delivery and drastically cut down on judicial delays.
The Incorporation of forensic science into criminal investigations is another significant aspect of the BNSS. In order to strengthen the evidence supporting prosecutions, Section 176 requires forensic analysis in all cases where the sentence is longer than seven years. Given the frequently subpar quality of investigations conducted under the previous administration, this is a noteworthy development. But the BNSS has also included contentious clauses pertaining to police detention. Depending on the nature of the offense, the new law permits custody to last up to 60 or even 90 days with judicial approval under Section 187(2), which goes beyond the customary 15-day limit. Serious constitutional questions concerning the preservation of individual freedom and the possibility of abuse in custody have been brought up by this.
In Joginder Kumar v. State of U.P., the Supreme Court stressed that an arrest must be both lawful and necessary, while in D.K. Basu v. State of West Bengal, the Court established procedural safeguards to prevent torture in detention. The BNSS’s expanded custody provisions must be interpreted and applied using these rulings as a guide. Even though the forensic and digitization mandates in BNSS are progressive reforms, their implementation depends on having a skilled police force and infrastructure, particularly in rural areas. These bold provisions might stay aspirational rather than transformative if they are not properly implemented.
Bharatiya Sakshya Adhiniyam, 2023 (BSA)
The Indian Evidence Act of 1872 was superseded by the Bharatiya Sakshya Adhiniyam (BSA), which aims to update the country’s criminal trial evidentiary system. Significant changes are made by the BSA to reflect the expanding use of technology in the gathering, recording, and presenting of evidence. The increased admissibility of digital and electronic evidence is one of the most significant changes. Emails, text messages, metadata, and other digital footprints like GPS location and cloud storage are all specifically listed as admissible evidence under Section 63 of the BSA. This brings the law into line with contemporary investigative techniques and global norms, especially in a world where digital communications are becoming more and more important. Additionally, the BSA recognizes blockchain documents and digital signatures under Section 85, giving technologically generated documents legal sanctity. This will help industries like cybersecurity, finance, and commerce. Support for expert testimony and forensic evidence, such as DNA, fingerprint analysis, and biometric data, is another important aspect of the BSA. By establishing the admissibility of expert testimony, Section 58 codifies judicial procedures that have changed over the previous 20 years.
Nonetheless, the BSA has come under fire for incorporating provisions pertaining to reverse burden in specific offense categories, like sexual assault and terrorism. A fundamental tenet of criminal jurisprudence, the presumption of innocence, is significantly violated by these clauses, which presume guilt and shift the burden of proof to the accused. Although the goal may be to secure convictions for serious crimes, Article 20(3) of the Constitution, which protects against self-incrimination, may be violated. Even in cases involving terrorism, judicial precedents like State v. Navjot Sandhu have highlighted the importance of rigorous adherence to evidentiary standards.
Furthermore, the Supreme Court ruled in Selvi v. State of Karnataka that forcing people to submit to narco-analysis and other intrusive procedures is against their right to privacy and their right against self-incrimination. To make sure that technological integration does not compromise individual liberties, these issues must be taken into account when implementing the BSA. To ensure that it advances the goals of justice, the BSA must be applied with appropriate consideration for constitutional rights and procedural fairness, even though it is a welcome reform in terms of modernizing evidentiary standards.
Constitutional and Jurisprudential Implications
Jurisprudential principles and constitutional rights must be taken into consideration when analyzing the 2023 criminal law reforms. Article 14, 19, 20, and 21 of the Indian Constitution, which protect the rights to equality, free speech, protection from arbitrary punishment, and personal liberty, respectively, must all be adhered to by the BNS, BNSS, and BSA. For example, there are significant constitutional concerns about the reverse burden clauses in BSA and the extension of police custody in BNSS. Any departure from the standard of procedural fairness established by the Maneka Gandhi v. Union of India case would be scrutinized by the courts.
Criminal law is included in the Concurrent List (Entry 1, List III, Schedule VII), which means that these laws also interact with the federal structure of the Constitution. For consistent implementation, this calls for cooperation with state governments. Many colonial-era principles are still present in these reforms, despite their new names and structures, which has also sparked concerns about their symbolic nature. Real reform must address fundamental problems like over criminalization, violence in detention, and the backlog in the administration of justice rather than just making superficial adjustments.
Conclusion
A bold and essential step toward modernizing a legal system that has long been criticized for being antiquated and colonial in spirit is the Criminal Law Reforms of 2023. The goal of the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam is to bring India’s criminal justice system into line with modern social and technological realities. In fields like victim protection, forensic science, digital integration, and procedural clarity, they make admirable strides. These reforms’ effectiveness, however, will rely on how they are interpreted, put into practice, and adjusted to India’s sociolegal environment. There are still serious issues with civil liberties, constitutional compatibility, infrastructure constraints, and the requirement for judicial sensitivity. Human rights, natural justice, and the fundamental ideals of the Indian Constitution must all be taken into consideration when evaluating these laws. In order to achieve a truly just, equitable, and modern criminal justice system, the reforms must be viewed as the start of an ongoing process of legal evolution rather than its conclusion. This will require cooperation from the judiciary, executive branch, legislature, and civil society.
FAQS
Q1. What are the 2023 Criminal Law Reforms?
BNS (Bharatiya Nyaya Sanhita) takes the place of the IPC
The CrPC is replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS)
The Indian Evidence Act is replaced by the Bharatiya Sakshya Adhiniyam (BSA).
Q2. How did the sedition law turn out?
Section 124A of the IPC, which dealt with sedition, has been repealed. However, some claim that Section 150 of the BNS is comparable because it creates a new crime for actions that jeopardize sovereignty.
Q3. Does lynching by mobs now constitute a distinct crime?
Yes Mob lynching is for the first time expressly made a crime under BNS Section 103(2).
Q4. What are the main BNSS procedural changes?
Digital FIRs, required search videography, set investigation timelines, and increased use of forensic evidence are all introduced by BNSS.
Q5. How is evidence law modernized by BSA?
The BSA permits expert and forensic testimony, acknowledges blockchain records, and expands the use of digital and electronic evidence.
Q6. Do the new laws raise any concerns?
Yes, Critics point to the reverse burden of proof, lengthy police custody, ambiguous provisions, and possible abuse of specific clauses.
