Abstract:
India’s recent overhaul of its criminal justice system represents a historic departure from the colonial legal framework that has governed the country for over a century. The new laws, which aim to modernise the Indian legal system and prioritise justice over punishment, have the potential to significantly impact the judiciary, law enforcement, and society at large. This article explores the historical context of these reforms, analyses the key changes introduced, and assesses their potential implications. It also addresses the criticisms and challenges associated with this transition, providing a balanced perspective on this significant legal development.
Introduction:
India has ushered into a new era of criminal law with the implementation of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA). These comprehensive codes, which came into effect from July 1, 2024, serve as replacements for the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act, respectively. This landmark transition marks a significant departure from the colonial legal framework that has dominated India for over a century.
The core of these reforms is a shift in emphasis from punishment to justice. As articulated by the Union Home Minister, Shri Amit Shah, the primary objective is not to inflict retribution upon criminals but to deliver justice to the people. Prime Minister Narendra Modi echoed this sentiment, asserting that these reforms seek to eliminate the remnants of colonial mentality and pave the way for a new, self-assured India.
This article delves into the historical context that necessitated these reforms, examines the key changes introduced by the new laws, and analyses their potential implications for the Indian legal system.
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Historical Context and Rationale:
Following dates apply to the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA):
- Indian Penal Code (IPC): 164-years-old as on 2024, having been enacted in 1860
- The Code of Criminal Procedure (CrPC): In 1861, the first version of the CrPC was introduced, but as on 2024, the current version that we use was considerably updated and re-enacted in 1973, making it 51-years-old
- The Indian Evidence Act (IEA): Enacted in 1872, will be 152-years-old as on 2024
While these criminal laws served as the backbone of India’s criminal justice system for over 160 years, it’s colonial origins and outdated provisions necessitated a re-evaluation.
Key Changes and Their Implications:
The new criminal laws introduce several significant changes:
The new legal framework has contracted the number of Sections from 511 in the IPC to 358, adding 21 new crimes. Below will give us an understanding that represent few crucial changes:
Expansion of Crimes and Definitions:
- Section 69: Sexual intercourse by employing deceitful means, “deceitful means” shall include inducement for, or false promise of employment or promotion, or marriage. Earlier there were no specific clause dealing with such crimes
- Section 117(4): Offences done by mob (Five or more persons), the crimes related to mobs were previously unaddressed in the IPC, though certain specific acts were made by various state governments, but now this issue has been made general from specific by including it in BNS leading to clearer understanding of the laws
- Sections 111(1) and others: Addressing organized crime and terrorism, the government’s intent is to strengthen legal measures against these serious offences, ensuring that they are more comprehensively defined and prosecuted within new legal framework
- Section 304(1): Chain snatching, this section is a part of the broader effort to modernize the legal framework and introduce specific provisions to deal with crimes that are prevalent in the contemporary, by codifying chain snatching, the law aims to impose stricter penalties and provide a clearer legal basis for prosecuting this offense
Previously there were no specific clauses for the above mentioned crimes.
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- The controversial Section 377 has been abolished: Previously the Hon’ble Supreme Court in the case of ‘Navtej Singh Johar v. Union of India’ only decriminalized the consensual Sex between same genders, but now the entire section has been struck down all together resulting in no specific section for criminalising non consensual or forceful sexual intercourse between same genders
- Enhanced Police Powers and Custody: Police custody has been extended from 15 to 90 days allowing longer detentions. These new changes give police greater discretion in handling the cases, which has sparked debate over the potential for misuse of power
- Provision for absentee trials has been introduced: A trial of fugitive can be done now, the ex-parte judgements can be given against them, protecting the loophole which was exploited by the absconders so as to get rid of trials
- Statutory bail has been struck down: The provision for statuary bail for those who are charge sheeted under multiple offences has been removed. Now, no bail will be granted to those who have already served half of their imprisonment period under trial
- Stricter timelines have been established for criminal cases: A deadline has been set for criminal cases, where the judgments need to be delivered within 45 days and justice within 3 years. Charges must be finalized within 60 days after the first hearing
- Victim Protection and Rights: The new laws emphasise the protection of victims, particularly in cases of rape, where doctors are now required to submit reports within 7 days
- The concept of Zero FIR: The concept of Zero FIR talks about filing of FIR at any police station, regardless of where the crime occurred or the station’s jurisdiction. Though this has been the practice since 2011, the same has now been legally execute. Furthermore, electronic summons are now legally recognized, and electronic digital records are admissible in court
- Witness Rights and Protections: Witnesses can now record their statements via audio or video, and in rape cases, the victim’s statement can only be recorded by a female police officer in the presence of a family
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Critiques and Support:
While these changes have been largely welcomed, they have also drawn criticism:
- Extended Police Custody: The extension of police custody and the increased discretion granted to law enforcement (its upto police’s discretion whether the want to apply BNS or UAPA), particularly in cases involving terrorism and organized crime, have raised concerns about potential misuse
- Lack of Clear definitions: Critics argue that the lack of clear definitions for crimes against the sovereignty of India, terrorism, and organized crime leaves these provisions open to abuse by the government
- Abolition of Section 377: The complete removal of section 377 is not justified as it also decriminalised the forceful or non-consensual sex between the same genders, disadvantageous particularly for men who have no protections in terms of sexual offences against them. This change will further worsen the situation
- Potential for eroded judgement: While the new laws emphasise quicker resolution of cases, the complexity and increased burden on the judiciary may lead to unintended errors in trials
- Challenges in Implementation: The implementation of these new laws across India poses significant challenges. With varied levels of infrastructure and resources across states, ensuring uniform application will be a complex task. Public awareness and training for law enforcement agencies will be crucial for enforcing these laws effectively
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Future Outlook:
Going forward, these new laws are likely to evolve as they will be tested in the courts and on the ground. The increasing role of technology and digital evidence will continue to shape the legal landscape, with electronic and digital records playing a more prominent role in future legal proceedings.
Conclusion:
The introduction of new criminal laws, designed to supplant the Indian Penal Code, signifies a significant milestone in India’s legal evolution. These reforms aim to dismantle the colonial legacy embedded within the IPC and prioritize justice over punitive measures. The potential impact of these changes on Indian society is far-reaching. Nevertheless, the realization of their intended outcomes hinges on effective implementation and the capacity of the legal system to navigate the challenges associated with this transition.
The above article has been co-authored by Shailendra Pratap Singh, Advocate Supreme Court of India, Yashwardhan Singh Parihar, 3rd Year BALLB Student, ILS Law College
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"The core of these reforms is a shift in emphasis from punishment to justice…"@Shailendrarsps#VoiceForMen https://t.co/kZZTrjIrA6— Voice For Men India (@voiceformenind) September 30, 2024
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