Author: Hitesh Dhamat, National Law University Tripura
To the Point
By enacting three new laws on July 1, 2024, India made significant changes to its criminal justice system: the Bharatiya Nyaya Sanhita (BNS), 2023; the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam (BSA), 2023. The Indian Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian Evidence Act, 1872, all of which were passed during the colonial era, are replaced by these statutes. Described as a “watershed moment” by Chief Justice of India D.Y. Chandrachud, these laws aim to modernize India’s legal framework, prioritize justice over punishment, and align with contemporary societal needs. However, the reforms have sparked debate, with proponents lauding their decolonizing intent and critics warning of potential disruptions to the administration of justice due to extended police powers, ambiguous provisions, and inadequate parliamentary debate. This article examines the implications of these legislative changes, their alignment with Indian ethos, and their potential to reshape the criminal justice landscape.
Use of Legal Jargon
India’s criminal justice system’s procedural and substantive framework underwent significant changes as a result of the new criminal laws. The Bharatiya Nyaya Sanhita (BNS) redefines offenses, replacing the colonial-era Indian Penal Code with provisions addressing modern crimes such as cybercrime, financial fraud, and environmental offenses. It eliminates the contentious Section 124A (sedition), substituting it with Section 152, which penalizes acts endangering the “sovereignty, unity, and integrity of India.” The Bharatiya Nagarik Suraksha Sanhita (BNSS) overhauls the Code of Criminal Procedure, introducing mechanisms like Zero FIR, electronic summons, and trials in absentia, while extending police custody periods from 15 to up to 90 days in certain cases. The Bharatiya Sakshya Adhiniyam (BSA) modernizes the Indian Evidence Act by emphasizing forensic evidence and digital documentation to strengthen the evidentiary framework. Critics argue that provisions like extended police custody and vague definitions of “subversive activities” risk violating Article 21 (right to life and personal liberty) of the Indian Constitution, significantly increasing the possibility of arbitrary detention and compromising due process.
The Proof
The transition to the new criminal laws marks a significant departure from the colonial framework established by the British to subjugate rather than serve justice. The Indian Penal Code, enacted in 1860 under Lord Macaulay, was designed to entrench imperial rule, with provisions like sedition used to suppress Indian freedom fighters. The BNS streamlines the IPC’s 511 sections into a more concise format, addressing contemporary issues such as organized crime, terrorism, and cybercrime. For instance, the BNS defines terrorism to include acts threatening India’s “economic security” and “monetary stability,” with penalties ranging from five years to life imprisonment. It also introduces stringent measures against financial frauds like Ponzi schemes and environmental crimes like illegal mining, aligning with global standards.
The BNSS enhances procedural efficiency by mandating judgments within 45 days of trial completion and charge framing within 60 days of the first hearing. Innovations like Zero FIR allow victims to file complaints at any police station, eliminating jurisdictional barriers, while mandatory videography of crime scenes for heinous crimes ensures transparency. The BSA strengthens the evidentiary framework by prioritizing forensic science and digital evidence, addressing the complexities of modern investigations.
However, the reforms have faced criticism for their rushed implementation and potential overreach. The opposition, including Congress MP P. Chidambaram, has argued that the laws were passed without sufficient parliamentary debate, particularly during a session where over 100 lawmakers were suspended. Critics like Supreme Court lawyer Nipun Saxena have raised concerns about the transfer of judicial functions to police, such as the power to decide whether a case proceeds to trial, which could undermine judicial oversight. The extension of police custody to 60–90 days has sparked fears of misuse, potentially violating fundamental rights under Articles 20 and 21 of the Constitution. Additionally, the absence of specific provisions for crimes like non-consensual same-sex intercourse, following the repeal of Section 377 of the IPC, has created legal gaps.
The government counters that these laws reflect “Indian ethos” and prioritize justice over punishment. The government counters that these laws reflect “Indian ethos” and prioritize justice over punishment. Union Home Minister Amit Shah underscored that the measures are intended to give justice within three times by putting a stop to the” tareekh- pe- tareekh” (endless adjournments) culture. Extensive training of over 565,000 police, judicial, and forensic officers, along with public awareness campaigns through 1,200 universities and 40,000 colleges, underscores the government’s commitment to a smooth transition.
Abstract
India’s criminal justice system underwent a historic transformation on July 1, 2024, With the enactment of the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam, the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act laws formulated during the colonial era have been replaced. These laws aim to decolonize the legal framework, modernize justice delivery, and address contemporary crimes like cybercrime and environmental offenses. Key changes include the replacement of sedition with a broader offense, extended police custody, and provisions like Zero FIR and mandatory videography. While the government claims these reforms prioritize justice and efficiency, critics warn of potential disruptions due to vague provisions, enhanced police powers, and insufficient parliamentary scrutiny. This article analyzes the reforms’ implications, their alignment with modern legal standards, and their potential to reshape India’s criminal justice system, while addressing criticisms and implementation challenges.
Case Laws
Navtej Singh Johar v. Union of India (2018): This landmark Supreme Court case decriminalized consensual same-sex relations under Section 377 of the IPC. The BNS’s complete repeal of Section 377 has removed provisions for non-consensual same-sex offenses, creating a legal lacuna that critics argue leaves adult male victims of sexual assault without specific protections.
K.S. Puttaswamy v. Union of India (2017): In this case the Supreme Court recognized the right to privacy as a fundamental right under Article 21. Critics argue that the BNSS’s extended police custody (60–90 days) and increased police discretion could infringe on this right, potentially leading to arbitrary detentions and violations of due process.
Arnesh Kumar v. State of Bihar (2014): This case established guidelines to prevent unnecessary arrests and detentions, emphasizing the protection of personal liberty. The BNSS’s provision for extended police custody has raised concerns about compliance with these guidelines, as longer detentions could lead to misuse of power.
Lalita Kumari v. Government of Uttar Pradesh (2014): The Supreme Court mandated the registration of FIRs for cognizable offenses. The BNSS’s introduction of Zero FIR aligns with this ruling, enabling victims to file complaints at any police station, enhancing access to justice and reducing jurisdictional delays.
Conclusion
The introduction of the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam on July 1, 2024, represents a bold attempt to modernize India’s criminal justice system and shed its colonial legacy. By addressing contemporary crimes, streamlining procedures, and prioritizing victim-centric justice, these laws aim to align with India’s democratic values and global legal standards. Innovations like Zero FIR, electronic summons, and mandatory videography reflect a commitment to efficiency and transparency. However, concerns about extended police powers, vague provisions like Section 152 of the BNS, and the lack of parliamentary debate highlight potential risks of overreach and disruption. The success of these reforms hinges on effective implementation, robust judicial oversight, and continuous review to address gaps, such as the absence of provisions for certain sexual offenses. As India navigates this transition, the balance between modernizing justice delivery and safeguarding fundamental rights will determine the true impact of these laws.
FAQS
1. What are India’s new criminal laws?
The CrPC (1973), the IEA (1872), and the IPC(1860) were replaced by the new laws known as the Bharativa Nyaya Sanhita (BNS), Bharativa Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyato (BSA) on July 1, 2024. They aim to modernize the criminal justice system and prioritize justice over punishment.
2. What is Zero FIR, and how does it benefit victims?
Zero FIR was introduced under the BNSS, it allows victims to file a FIR at any police station, regardless of the jurisdiction. This eliminates delays caused by jurisdictional disputes, ensuring faster access to justice for victims.
3. How do the new laws address modern crimes?
The BNS introduces provisions for cybercrime, financial fraud (e.g., Ponzi schemes), environmental offenses (e.g., illegal mining), and terrorism, including acts threatening India’s economic security. These provisions aim to align the legal framework with contemporary challenges.
4. Why are the new laws controversial?
Critics argue that the laws were passed without adequate parliamentary debate, grant excessive police powers (e.g., extended custody periods), and contain vague provisions like Section 152 of the BNS, which could be misused. The repeal of Section 377 also leaves gaps in addressing certain sexual offenses.
5. How do the new laws ensure faster justice delivery?
The BNSS mandates judgments within 45 days of trial completion and charge framing within 60 days of the first hearing. Electronic summons and mandatory videography for heinous crimes aim to streamline processes and enhance transparency.
6. Will cases filed before July 1, 2024, be affected?
No, it won’t have an impact on cases filed under the abolished laws (IPC, CrPC, and Indian Evidence Act) prior to July 1, 2024. These cases will still be tried under those laws until they are finally resolved, guaranteeing that ongoing legal proceedings continue.
