HOW INDIA'S THREE NEW CRIMINAL LAWS WILL REFORM THE JUSTICE SYSTEM: A QUICK GUIDE
On July 1, India ushered in a new era in its criminal justice system by replacing three foundational laws: the Indian Penal Code (IPC) of 1860, the Code of Criminal Procedure (CrPC) of 1973 and the Indian Evidence Act of 1872. The new laws, Bharatiya Nyaya Sanhita (BNS) 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 and Bharatiya Sakshya Adhiniyam (BSA) 2023 aim to modernise the criminal justice system, address contemporary challenges and streamline judicial processes.
Here are the major changes introduced by the three new laws.
Changes introduced by BNS, which replaces IPC
- The infamous Section 124A of the IPC, which criminalised sedition, has been repealed. However, Section 150 of the BNS introduces a broader offence covering acts that endanger the sovereignty and integrity of India, potentially including acts previously covered under sedition.
- The BNS introduces new offences such as organized crime (Section 109) and petty organised crime (Section 110). Clause 111(1) incorporates offences related to organised crime and terrorism, previously covered by laws like the Unlawful Activities Prevention Act (UAPA) and state-specific acts. Acts of terrorism have been defined. Organised crime includes activities like human trafficking, drug trafficking and cybercrimes, while petty organised crime covers smaller in scale but systematic criminal activities such as theft and gambling.
- Mob lynching is now a distinct offence under the BNS. Murder committed by a group of five or more persons on grounds of race, caste, sex, place of birth, language, or other biases can result in punishments ranging from seven years to life imprisonment or even the death penalty.
- The BNS makes sexual offences gender-neutral, extending legal protection to all individuals irrespective of gender. The definition of "gender" now includes transgender people. This change addresses the need for inclusive and comprehensive legal protection against sexual crimes.
- The punishment for rape of a minor includes the death penalty, reflecting the severity of the crime.
- A new chapter specifically addresses crimes against women and children, with severe penalties for offences such as buying or selling children and gang-rape of minors, which can result in a death sentence or life imprisonment.
- Clause 69 penalises sexual intercourse obtained through deceitful means, including false promises of marriage, with up to 10 years of imprisonment and a fine. This aims to address cases where women are misled, but critics warn it could criminalise consensual relationships.
- Defined under Clause 304(1), snatching is now a distinct crime from theft, punishable by up to three years in jail.
Changes introduced by BNSS, which replaces CrPC
- The maximum detention period in police custody is extended from 15 days to 90 days for serious offences-a significant departure from the CrPC's 15-day limit. This change has raised concerns about potential police excesses and custodial torture.
- The BNSS mandates that a copy of the FIR (first information report), police report, charge-sheet, statements and other documents be provided to the accused and the victim within 14 days of filing.
- A person can now report incidents by electronic communication, without the need to physically visit a police station.
- The BNSS allows the filing of a Zero FIR at any police station, regardless of jurisdiction. The FIR will then be transferred to the appropriate police station for investigation. This provision aims to facilitate easier reporting of crimes, especially in urgent cases.
- Summons can now be served electronically, speeding up legal processes, minimising paperwork and ensuring efficient communication among all involved parties.
- In the event of an arrest, the individual has the right to inform a person of his choice about his or her situation so that the arrested individual can get immediate support and assistance.
- Arrest details will have to be prominently displayed within police stations and district headquarters, allowing families and friends of the arrested person easy access to important information.
- Statements of rape survivors will be recorded by a woman police officer in the presence of the survivor's guardian or relative. Medical examination and filing of report must be completed within seven days.
- For certain offences against women, the victim's statements should be recorded, whenever possible, by a woman magistrate. If unavailable, a male magistrate must record the statement in the presence of a woman to ensure sensitivity and fairness, fostering a supportive environment.
- Under the new laws, those bearing the brunt of crimes against women are entitled to regular updates on the progress of their case within 90 days.
- The new laws guarantee free first aid or medical treatment to victims of crimes against women and children at all hospitals.
- Forensic experts are now mandatorily required to visit crime scenes and collect evidence for serious offences. The evidence collection process at the crime scene must be mandatorily videographed to prevent tampering.
- To provide more protection and enforce transparency in investigation related to an offence of rape, the statement of the survivor shall be recorded through audio-video means.
- Women, persons below 15 years, persons above 60 years and those with disabilities or acute illnesses are exempt from attending police stations and can receive police assistance at their place of residence.
- Summary trials-a simplified and fast process for quick dispensation of justice-are mandated for petty and less serious cases to ensure quicker resolution, helping to reduce the backlog of cases.
- The BNSS allows for the trial and conviction of accused persons in their absence, a provision critics argue may lead to potential miscarriages of justice.
- The BNSS reintroduces the practice of conducting a preliminary inquiry in cases where the imprisonment term ranges between three to seven years. This step is intended to prevent frivolous cases from proceeding, but it could also delay the registration of legitimate FIRs, potentially burdening complainants.
- Section 172 of the BNSS allows the police to detain individuals who do not comply with lawful directions aimed at preventing a cognisable offense. This provision includes safeguards such as producing the detained person before a magistrate within 24 hours.
- The BNSS introduces community service as an alternative punishment for minor offences, aiming to reduce prison overcrowding and rehabilitate offenders, rather than relying solely on incarceration.
- It mandates that all state governments must implement witness protection schemes to ensure the safety and cooperation of witnesses-crucial for fair trials.
Changes introduced by BSA, which replaces the Indian Evidence Act
- The BSA allows electronic records and digital evidence to be admissible in court with the same legal validity as paper records.
- The scope of secondary evidence has been expanded to include copies made from the original by mechanical processes, counterparts of documents as against parties who did not execute them, and oral accounts of a document by someone who has seen it.
- Courts are allowed a maximum of two adjournments to avoid unnecessary delays in case hearings. Criminal case judgments must be delivered within 45 days after the trial ends. Charges must be framed within 60 days of the first hearing.