Author: Kritika Prakash, a student at Government Law College, Mumbai
Bhartiya Nyay Sanhita, the Bharatiya Nagrik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam replace the age-old Indian Penal Code of 1860, The Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872. The enactment took place on the 1st of July, 2024 freeing India of its colonial descent, finally. As the three landmark legislations were enacted, it transformed the map of criminal justice reforms in the country, upgradation of the same, was long overdue. The modern and more suitable Indian laws in these legislations remind us that the previous laws were only a reflection of colonial administration being at the top of the food chain. The Indian Penal Code was drafted by Lord Macaulay in 1860 which was the official criminal code of India since. It defined all the criminal laws in the country in a comprehensive manner. However, it is important to note that such a law was proposed by the Law Commission of India in 1834 which was established under the Charter Act of 1833. Even in those times, the Charter was criticized for increasing the control that was being rendered to the British through the Act. Now, the Indian Penal Code is replaced by the Bharatiya Nyaya Sanhita Bill 2023 and has 356 sections instead of the earlier 511 sections in IPC. There has been a change in 175 sections, an addition of 8 new sections, and most importantly, 19 sections have been repealed. It does retain the previous provisions regarding murder, abetment of suicide, assault, and causing serious hurt from the Indian Penal Code but it adds on to it by enlisting more offenses like organized crime, terrorism, and murder or serious hurt by a group on certain grounds. It also retains ‘sexual offenses against women’ offenses like rape, stalking, insulting, and assassinating a woman’s dignity from the Indian penal code and catering to more grievances in these cases, it has allowed the victims of gang rape to classify as an adult if they are in the age group between 16 to 18 too. An interesting thing to note under Bhartiya Nyay Sanhita is that under ‘offenses against property’, theft, robbery, and burglary offenses are retained from the Indian Penal Code but additionally, cybercrime and financial fraud are also categorized under the same. It has also added environmental pollution under the category of ‘offenses against the public’. There has been a change in the punishment of certain offences too such as the offence of causing death by negligence. According to the Indian Penal Code, the punishment for such an offense is two years of imprisonment, a fine, or both. The Bhartiya Nyay Sanhita has changed the offense’s punishment to 10 years of imprisonment including a fine. This shows that there have, definitely, been stricter and more positive changes in the system through these replacements but there is some criticism of the same laws too. Bhartiya Nyay Sanhita retained the marital rape exception and did not change the value of the phrases such as ‘modesty of a woman’ by using gender-neutral terms which would have helped in protecting any and all victims of nonconsensual sexual acts which has caused valid concerns. Now, The Code of Criminal Procedure also known as the Criminal Procedure Code was enacted in 1973, coming into effect in 1974 by the British Parliament emphasizing again on the British power play. It is now replaced by the Bhartiya Nagarik Suraksha Sanhita Bill, 2023 consisting of 533 sections. It has changed 160 sections of old law, 9 new sections have been added and 9 sections have been repealed. It has brought certain changes like protecting the interest of the accused by rendering the right of a lawyer during interrogation and all the rights of the accused at the time of being arrested have to be communicated to him by the police officer or any other person who is arresting the accused. After the arrest is made, the accused is to be medically examined and the procedures for the same are defined hence, streamlining the procedure and lessening delays of the arrests. There has been an expansion on the grounds of arrest and this has allowed arrest without warrant on a larger scale of cases. It has also made some stringent rules for fast investigation, facilitating the process, and has put deadlines on trials to speed justice. However, this has gotten massive criticism as such stringent methods being used on the accused individuals make the process of bail and other remedies difficult for people who may be falsely accused. It has also given powers to the police such as to snatch the property of an accused who hasn’t been trialed yet and even allow them to investigate the devices of the accused for pieces of evidence. As much as it helps the cases in recovering substantial evidence, it raises a lot of other concerns too such as the privacy violations and misuse of the power being rendered to the police enforcements. Following the replacement of the Code of Criminal Procedure, the Indian Evidence Act of the British era has been replaced too. This act was passed by the Imperial Legislative Council in 1872 and defined how evidence is to be governed and admitted. Other than the British ascent of the code, it has been widely criticized for not being up to date. It is a known fact that there is a huge amount of change in the evidence that can be produced in a case, including digital evidence such as photos, videos, screenshots, etc. A big example of this is the Sushant Singh Rajput case which included a lot of screenshots regarding drugs that were used to accuse many celebrities and created a list of possible suspects and leads. Now, the Indian Evidence Act has been replaced with Bhartiya Sakshya Adhiniyam. Before this, the rules for evidence were different depending on the circumstances and different social groups, communities, etc. But, since the enactment of Bharat Sakshya Adhiniyam, a standard set of laws has been established that will be applicable in all scenarios. The act includes 170 sections replacing 167 sections in the previous Indian Evidence Act. 23 sections have been modified from these 160 sections, five sections have been appealed and one more section has been added. It has allowed electronic and digital evidence to be used which includes email, text messages, location, website content, etc. It has allowed electronic evidence in the matter of oral evidence. Adding to the same, it has been allowed in cases of rape that the victim’s statement be recorded through audio-visual means in order to protect the interests of the victim and facilitate transparency. Most importantly, written and oral admission has been put in the category of secondary evidence that can be used against an accused individual. Of course, there has been criticism for the same too as this legislation is allowing leniency in producing evidence against the accused clearly giving an advantage to the prosecution. It has made it difficult for the defendant side to defend which may be seen as a violation of a ‘fair trial’.
The government has brought these changes in the name of dismantling the residual that has been left by the British rule in the country. But, certain important ‘modern changes’ in the country have still not been addressed by these legislations which makes us question the whole objective of this change. There is no denying that there have been some massively positive reforms put forth too but that too has criticism mainly on the lines of criminal justice that portrays the legal system to be very one-sided. Offences like marital rape, sexual harassment only catering to one specific gender are not just another matter to be addressed but some actually important matters that ‘need’ to be addressed. Turning a blind eye to negatives and only focusing on the positives is a great way to handle life but that should not be the case in Indian Political Scenario. We, as citizens, need to balance and look at the politics being displayed just like the ‘rule of law’ looks at us i.e. an unbiased way.
FREQUENTLY ASKED QUESTIONS
What is marital rape?
Marital rape or spousal rape is the act of sexual intercource with one’s spouse without the spouse’s consent. In India this is act is not criminalized.
Has there been any change in the marital rape laws at all?
If marital rape is done on a wife who is a minor then it is a criminalized act but not if the wife is an adult. – Bharatiya Nyaya Sanhita includes clarification under exception 2 to section 63 (rape) which states that any sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
What is ‘death caused by negligence’?
When a death is caused by somebody’s negligent or rachact, then it is called causing death by negligence.
