Author: Srishti Sinha, School of Law, University of Mumbai, Thane sub-campus
To the Point: India’s Legal Transformation – A New Era in Criminal Justice
India’s criminal justice landscape has undergone its most significant transformation in over a century. The former criminal laws- The Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act, were superseded by the three modernized acts- Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Adhiniyam, effective 1st of July, 2024. This legislative reform, a culmination of efforts to modernize and decolonize the legal framework, aims to shift the focus from punishment to justice, prioritize victims’ rights, enhance national security, and leverage technology for greater efficiency. However, the transition is not without its complexities, raising critical questions about implementation, potential impacts on civil liberties, and the readiness of the existing infrastructure.
Abstract
The historical shift in India’s criminal justice system, due to the enforcement of the three new acts- Bharatiya Nyaya Sanhita, Bharatiya Nyaya Suraksha Sanhita and Bharatiya Sakshya Adhiniyam has been explored in this article. These legislations replace the colonial-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA), respectively. While championed by the government as a move towards decolonization, victim-centric justice, and technological integration, this report critically examines their multifaceted impact on victims, the accused, law enforcement, and the judiciary. It highlights key changes, anticipated benefits, and significant challenges, including concerns over civil liberties, infrastructure readiness, and the interpretation of new provisions.
A Close Look at the New Criminal Codes:
India’s criminal law infrastructure has experienced an extensive reform. The old laws, made during British colonial times, focused on controlling people rather than delivering fair justice in a democracy. Now, new laws are being introduced to better reflect India’s identity as a free, modern republic and address today’s challenges.
Bharatiya Nyaya Sanhita (BNS): Updating Substantive Law
The BNS replaces the Indian Penal Code (IPC), in order to update India’s criminal law system to match India’s prevailing societal and cultural preferences. It simplifies language, emphasizes victim rights, and updates punishments. The IPC had 511 sections; the BNS reduces this to 358 sections, adding new crimes and increasing penalties for some existing offenses.
A major change is removing “sedition” and replacing it with a new provision on acts that threaten India’s sovereignty. Although the government says this removes colonial language, the new wording is broad and vague, potentially allowing misuse to suppress dissent. Unlike earlier sedition laws, this new rule may not be limited by court judgments that protected free speech.
The BNS also toughens laws on cybercrime, improves victim compensation, and introduces community service for minor crimes. It promotes gender neutrality by recognizing transgender individuals and updating language. Offenses against women and children are grouped to reflect their vulnerability. Medical negligence causing death now carries a lighter punishment than before. The law’s reach extends beyond India to punish those who commit crimes abroad if they affect India.
However, vague terms like “false information” could be misused, giving police too much power and risking unfair charges, especially against marginalized groups.
Bharatiya Nagarik Suraksha Sanhita (BNSS): Innovating Procedure
The BNSS updates the 1973 Code of Criminal Procedure (CrPC) to improve governance, speed up trials, and ensure effective justice. It adds digital tools like video recording of police actions, electronic sharing of documents, and online trials. It is easier to file complaints with Zero FIR and e-FIR options, which help with removing jurisdiction barriers. Strict timelines for investigations and case updates aim to reduce delays.
But some changes worry civil rights advocates. Police custody can now last up to 60 or 90 days, much longer than before, increasing the risk of abuse. Handcuffing detainees is legally allowed, despite courts calling it unconstitutional. Authorities can detain people temporarily without calling it an arrest, sidestepping judicial checks.
While digital integration is promising, rural areas may lack the technology and training needed, which could limit its effectiveness.
Other updates include clearer definitions of community service, stricter timelines for plea bargaining, easier bail for first-time offenders, and the use of gender-neutral language in summons and notices.
Bharatiya Sakshya Adhiniyam (BSA): Modernizing Evidence Law
The BSA has replaced the Indian Evidence Act of 1872 to handle modern evidence, especially digital proof, in a better way. Electronic records are now recognized as primary evidence, and documents include digital files, audio, and video. The law requires official certification for electronic evidence and recognizes expert opinions from certified examiners, following Supreme Court rulings.
However, digital evidence is vulnerable to tampering, and current laws don’t fully address cybersecurity or forensic needs, risking trial integrity.
The BSA also improves witness protection and eases some rules on hearsay evidence. But it still allows facts from accused persons’ statements in custody without strong safeguards against coercion.
While the BSA modernizes evidence law, it doesn’t yet cover emerging challenges like AI and machine learning, which are increasingly relevant.
The Proof
The Impact on Stakeholders
The new criminal laws are set to transform how different stakeholders engage with the justice system, promising reform for some, and raising concerns for others.
For Victims: A Paradigm Shift Towards Justice?
Historically, victims in India’s justice system were often sidelined. The new laws aim to reverse that by giving victims stronger rights and more active roles. Under the BNSS, victims now have the right to be heard before cases are withdrawn (Section 360), to appeal acquittals or inadequate compensation (Section 413), and to benefit from mandatory state compensation schemes (Section 396). Free medical treatment is assured for victims of serious offenses under Section 397, and hospitals must inform police immediately.
Zero FIRs and e-FIRs are now codified, enabling victims to report crimes without jurisdictional barriers, and victims are entitled to FIR copies and case updates within 90 days. Statements must be recorded via audio-video means and by a woman magistrate if possible for sensitive cases like rape. Victims can also participate in plea bargaining hearings.
Though some of these measures (like Zero FIR) previously existed through judicial directions, codifying them strengthens their enforceability. However, issues like the three-day signature requirement for e-complaints and access to FIRs only for legally represented victims may hinder the effectiveness of these reforms, especially for the unrepresented or underprivileged.
For the Accused: Navigating Evolving Rights and State Authority
While the government promotes a justice-focused approach, several provisions expand police authority, drawing criticism. Notably, police custody is now extendable to 60 or 90 days in staggered segments, beyond the previous 15-day limit, raising fears of custodial abuse and reduced judicial oversight.
Vague new offenses like Section 197(1)(d) criminalizing “deceiving information risking public harmony” and Section 152 on “acts threatening sovereignty” harm arbitrary enforcement. These provisions, lacking precise explanations, could be misused to check dissent, despite the repeal of sedition (Section 124A IPC).
The BNSS also validates handcuffing (Section 43(3)) and bestows police the power to detain without treating it as an “arrest” (Section 172), bypassing safeguards. Section 173(3) BNS excludes medical negligence causing death from preliminary inquiry, contradicting Supreme Court rulings like Jacob Mathew v. State of Punjab (2005) and potentially exposing doctors to criminal trials early.
Though accused persons now have the chance to be heard before cognizance is taken, this could force early self-defense, infringing on the right to silence. Meanwhile, the “deemed sanction” provision removes delays in prosecuting public servants by granting automatic approval after 120 days.
Despite these concerns, some reforms do aid the accused: police can now proceed without arrest in certain cases, reducing unnecessary incarceration. First-time offenders also become eligible for bail after serving one-third of the sentence, addressing undertrial overcrowding.
For Law Enforcement: Empowered with New Tools, Facing New Responsibilities
Law enforcement gains broader powers and modern investigative tools. Extended police custody and vaguely worded offenses enhance discretion in complex cases. Provisions like mandatory audio-video recording (Sections 105, 185(2)) and forensic expert involvement (Section 176(3)) aim to improve transparency and scientific investigation. Zero-FIR and e-FIR streamline complaint registration, and statutory recognition of handcuffing and preventive detention expand police authority. But this increased power demands greater responsibility.
The challenge lies in capacity: many police stations lack infrastructure or trained personnel to implement tech-based procedures. Without significant investment in resources, these tools could be underused or misapplied. There’s also a risk of discretionary powers being exploited, particularly against vulnerable groups, and continuing colonial-era policing practices.
For the Judiciary: Adapting to a Modernized Framework
The laws seek to reduce case backlogs by streamlining procedures and expanding summary trials. The judiciary must now accommodate virtual hearings, digital evidence, and electronic proceedings.
However, gaps remain. Many courts, especially in rural areas, lack the technology needed for full implementation. The judicial workforce is also overstretched, and legal professionals must be trained to handle the new legal framework and digital processes.
Crucially, the judiciary must interpret vague provisions and redefine boundaries of state power. This creates space for progressive interpretations aligned with constitutional rights, or the risk of reinforcing executive overreach. The courts’ independence and vigilance will determine whether the reforms truly deliver justice or merely shift the balance of power further toward the state.
Use of Legal Jargon
The introduction of India’s new criminal laws, while aiming for clarity and efficiency, inevitably brings with it a lexicon that can feel a bit like a foreign language to the uninitiated. Terms like “mens rea,” “actus reus,” “stare decisis,” or even the nuanced distinctions between “culpable homicide” and “murder” are deeply embedded in legal discourse. While these jargons serve a crucial purpose in ensuring precision and consistency within the legal fraternity, for the average citizen, it can create a barrier to understanding. Navigating a legal system where one might encounter phrases like “res gestae” or “prima facie” without a clear explanation can feel daunting, potentially hindering a full grasp of one’s rights and responsibilities under these revamped statutes. It highlights the ongoing challenge of making complex legal frameworks accessible to everyone, ensuring that the spirit of justice is not lost in translation.
Case Laws
These landmark judgments have shaped the legal landscape and provide a significant framework for understanding the impact of the new laws.
Kedar Nath Singh v. State of Bihar (1962):
Upheld sedition law but limited it to incitement of violence or public complaint. The BNS drops “sedition” but introduces Section 152, criminalising acts against India’s sovereignty. As a new provision, it may not profit from Kedar Nath’s safeguards, raising fears of vague interpretation and abuse against dissent.
Anvar P.V. v. P.K. Basheer (2014):
It was held that electronic substantiation requires an instrument for admissibility under Section 65B. The BSA formalises this through Section 63, strengthening rules for digital substantiation and ensuring clarity in its treatment, aligning nearly with the judgment.
Jacob Mathew v. State of Punjab (2005):
Primary inquiry is needed before executing doctors for negligence. Under Section 173(3) BNSS, this safeguard now applies only to offenses punishable by 3–7 years. Since Section 106 BNS (medical negligence causing death) prescribes up to 2 years, such cases are barred, weakening Jacob Mathew’s protections.
Conclusion
Charting India’s Criminal Justice Future
India’s new criminal laws aim to modernize the justice system by focusing on victims’ rights, digital evidence, and faster procedures. While this symbolizes progress, concerns remain—vague provisions, expanded police powers, and pitfalls to civil liberties could harm those formerly vulnerable.
Although framed as “decolonization,” some fear that these changes may merely reinforce state control. Without proper infrastructure, training, and backlog operation, the laws risk falling short of their pledge.
In the end, how these reforms play out will depend on fair implementation, judicial interpretation, and political will. It’s a step forward—but one that needs constant care to deliver justice for all truly.
FAQS
1. What are the three new criminal laws in India?
The three new criminal laws are the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) and they were implemented on 1st July, 2024.
2. What old laws do these new laws replace?
The BNS replaces the Indian Penal Code (IPC), the BNSS replaces the Code of Criminal Procedure (CrPC), and the BSA replaces the Indian Evidence Act (IEA).
3. What is the main aim behind these legislative changes?
The main aims are to decolonize India’s legal framework, shift focus from punishment to justice, prioritize victim rights, enhance national security, and integrate modern technology for effective justice delivery.
4. How do the new laws affect victims’ rights?
The new laws significantly enhance victim rights, including the right to be heard before case withdrawal, the right to appeal against acquittals or lesser sentences, mandatory compensation schemes, a free medical approach for certain offenses, and the service of Zero FIR and e-FIR.
5. Are there any concerns regarding civil liberties under the new laws?
Yes, concerns include the expansion of police custody periods (up to 60/90 days), the introduction of vaguely defined offenses, the statutory validation of handcuffing, and a new sedition-like provision (Section 152 BNS) that critics fear could stifle dissent.
6. How do the new laws incorporate technology?
The laws mandate and facilitate the use of technology for various procedures, such as audio-video recording of search and seizure, electronic filing of FIRs (e-FIRs), electronic supply of documents, and the admissibility of digital evidence as primary evidence.
7. What are the main challenges to implementing these new laws?
Key challenges include the need for extensive training for law enforcement and judicial personnel, significant upgrades to technological infrastructure in courts and police stations, and addressing existing case backlogs.
8. Has the sedition law been completely removed?
The term “sedition” (Section 124A IPC) has been removed. However, the BNS introduces Section 152, which criminalizes acts endangering the sovereignty, unity, and integrity of India, with similar or potentially broader implications.
