Parliament Passes Three New Criminal Bills set to replace the British-Era Crime Codes

The Indian Parliament recently concluded one of its most contentious sessions in years, marked by significant legislative changes and notable incidents. The session witnessed the passage of three bills that aim to overhaul long-standing British-era criminal codes. However, the session was marked by significant opposition protests and the unprecedented suspension of 146 Opposition members. This led to critical bills being debated and passed with minimal Opposition presence, deepening the divide between the government and the Opposition. The Opposition INDIA collective, boycotting the proceedings, later decided to challenge the three key legislations in the Supreme Court.

All these three bills have been passed by both houses of Parliament and thereafter got the assent of the President. Bharat will have its new criminal justice system in place by December 2024. The new system will replace colonial-era laws and make the entire process fully online from filing of FIRs to delivery of judgment.

The Parliament passed the Bharatiya Nyaya (Second) Sanhita Bill, 2023, Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023, and the Bharatiya Sakshya (Second) Bill, 2023. These bills are set to replace the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Indian Evidence Act, 1872, respectively. They introduce several changes, including provisions for e-FIRs, considerations of corruption in election processes, and the treatment of electronic evidence as primary proof. Notably, they also define mob lynching as a separate crime and propose enhanced punishment for crimes against women and children.

These bills were first tabled in the Parliament on 11th August, 2023 and were sent to a parliamentary standing committee. Some of the suggestions from the committee were incorporated and then a set of new bills, labelled as “Second” were tabled on 12th December 2023.

Bharatiya Nyaya (Second) Sanhita Bill, 2023: This bill serves as a replacement for the Indian Penal Code, 1860, a legacy of British rule. It was established in 1860. The Indian Penal Code has been amended around 77 times, but there were calls for a complete revamp for the entire criminal justice system as it’s considered obsolete and a colonial legacy. There were 511 sections in the Indian Penal Code; the new law would only have 358 sections. The new code introduces comprehensive reforms aimed at modernizing the criminal justice system. Key features include enhanced provisions for addressing terrorism and state-related offenses, introduction of e-FIRs to leverage digital technologies in law enforcement, and the recognition of electronic evidence as primary proof. Notably, it also defines mob lynching as a separate crime with specific provisions, reflecting the government's response to contemporary social issues.

The laws from IPC have been incorporated into the new laws as the following:

1) Sections 34 to 44, under the new legal framework, delineate the Right to Private Defence. These sections elaborate on the circumstances and extent to which an individual can legally defend themselves or others.

2) The legal provisions from Sections 63 to 99 specifically focus on Offences against Women and Children. These sections comprehensively cover various crimes and their corresponding legal repercussions in this context. Rape is defined in Section 63 and its punishment in Section 64. Gang-rape is defined in Section 70. Now, death penalty or life imprisonment can be awarded for rape of a girl who is up to the age of 12 years.

3) Section 101, in the updated legal code, comprehensively defines Murder. It outlines the legal interpretation of murder and the conditions under which this charge is applicable.

4) Section 106 is now devoted to outlining the legal boundaries of Causing Death by Negligence. This section details the criteria under which negligence leading to death is adjudged.

5) The revised Section 109 focuses on Attempt to Murder. It specifies the legal understanding of what constitutes an attempt to commit murder and the penalties involved.

6) Section 189, in the new legal codification, deals with Unlawful Assembly. This section defines what constitutes an unlawful assembly and the legal consequences for participating in one.

7) In the reformed legal structure, Section 61 addresses Criminal Conspiracy. It lays out the definition, criteria, and legal implications of engaging in a criminal conspiracy.

The repeal of the colonial-era sedition law, Section 124A of the Indian Penal Code, and its replacement in the newly proposed Bharatiya Nyaya (Second) Sanhita (BNS) marks a significant legal transition. The new code introduces Section 152, designed to address acts of sedition, armed rebellion, or subversive activities. Notably, this new provision retains a similar level of severity in both definition and penalties as the repealed sedition law.

Incorporating terrorism into the new legal framework is a key aspect of the BNS. Unlike the current legal system, where a person suspected of terrorism is not directly chargeable under the IPC and requires the invocation of the Unlawful Activities (Prevention) Act (UAPA), the new code simplifies this process. The BNS allows for a more streamlined approach, where an officer at or above the rank of Superintendent of Police has the discretion to decide whether a case falls under the new Section 152 or should be pursued under the UAPA.

However, the government has chosen not to adopt a significant recommendation from the parliamentary committee in the final version of the BNS. It was to introduce a gender-neutral provision criminalizing adultery. This proposed inclusion was ultimately excluded from the revised bill.

Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023: Replacing the Code of Criminal Procedure, 1973, this bill aims to streamline procedural aspects of criminal law. There were 484 sections in the Code of Criminal Procedure; the new law would have 531 sections. It sets specific time limits for various legal processes, such as a 90-day deadline (extendable by another 90 days) for filing charge sheets and a 14-day period for a magistrate to take cognizance of a case. These changes are intended to expedite judicial proceedings and reduce delays in the criminal justice system.

It’s in the view of the government that there should be a criminal code that focuses on “justice” rather than “punishment” as the Parliament passed the three crucial bills.

Bharatiya Sakshya (Second) Bill, 2023: As a replacement for the Indian Evidence Act, 1872, this bill modernizes the framework for handling evidence in legal proceedings. There were 166 sections in the Indian Evidence Act; the new law would have 170 sections. It places a significant emphasis on electronic evidence, reflecting the increasing digitalization of information and communication. This shift acknowledges the evolving nature of crime and evidence in the digital age.

The new laws have been framed keeping in mind three basic principles – civil liberty of citizens, human rights, and equality. The current British laws have no scope for justice and only punishment is seen as justice.

Some important aspects of the new law are:

1) Provisions have been made to digitalize the entire process from filing of FIR up to the filing of case and chargesheet, and subsequent decisions.

2) The new law stipulates that videography is mandatory during police searches and seizures in any case.

3) As per the new bill, FSL mobile team has to make a mandatory visit to the crime scene in case the punishment for the same exceeds seven years.

4) Information about a person taken into custody must be communicated to the family, and an online reporting would also be required.

5) Efforts will be made to reach a verdict within three years. Verdicts must be uploaded online within seven days.

6) The Indian Evidence Act expands the scope of electronic and digital evidence. These evidences would also be legally recognized, just like documentary evidences.

The passage of these bills was met with a mixed response. The government justified the introduction of the Bharatiya laws as a necessary step towards modernizing India’s legal framework, making it more relevant and effective in today's context. The Opposition, however, criticized the manner in which these bills were passed, citing the lack of inclusive debate due to the suspension of a significant number of its members. The session was further marred by a security breach in the Lok Sabha, adding to the already heightened tensions. Post the legislative action, there were discussions within the Opposition about challenging these laws in the Supreme Court, highlighting ongoing legal and political disputes surrounding these significant changes.