Analysing the New Criminal Laws Impact on India's Modern Legal Framework

Recently, the Lok Sabha passed three new criminal laws in India, which were intended to replace outdated statutes and modernise India’s legal framework. 

The Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA) are replaced, respectively, by the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB).

These bills aim to update the criminal justice system and modernise the existing legal framework. 

The Bharatiya Nyaya Sanhita introduces a distinct offence for the ‘Terrorist Act,’ covering acts that pose a threat to India’s unity, integrity, sovereignty, security, economic security, or spread terror among any group.

The offence of ‘sedition’ is eliminated, and BNS penalises acts endangering the unity and integrity of India, replacing ‘Rajdroh’ with ‘deshdroh.’ 

The Object is on protecting citizens’ right to criticise the government while discouraging acts against the nation. ‘Mob Lynching’ is introduced as a distinct offense, carrying a maximum penalty of death. 

Lacks in the Current Criminal Justice System of India:

Caseload: As to the National Judicial Data Grid, the Indian courts are now handling more than 4.7 crore cases at various judicial levels. Delays in the administration of justice, violations of the right to a prompt trial, and a decline in public confidence in the system result from this.

Lack of Infrastructure and Resources: There is not enough money, personnel, or space for the criminal justice system. Judges, prosecutors, police officers, forensic specialists, and legal assistance attorneys are in short supply.

For a country of 135 million, there are only 21 judges per million population (as of February 2023).

The number of open positions in the high courts is around 400. Additionally, there are about 35% of open positions in the lower judiciary.

Inadequate Prosecution and Investigation: The prosecution and investigative teams frequently fall short of carrying out exhaustive, unbiased, and competent investigations. They deal with corruption, a lack of accountability, and meddling from political and other factors.

Human Rights Violations: Accused parties, witnesses, victims, and other stakeholders frequently claim that the criminal justice system violates their human rights. Torture in custody, extrajudicial executions, erroneous accusations, unauthorized detentions, forced confessions, unfair trials, and severe penalties are all examples of current events. 

These laws are outdated and out of step with modern society. They don't cover contemporary crime trends like organized crime, mob lynching, cybercrime, or terrorism.

What Actions Are Required to be Taken:

A more inclusive and thorough approach is required to address the issues and possible flaws in the proposed revisions.

Before putting any reforms into effect, start a more extensive consultation process that includes all relevant parties, including the general public, in order to take into account different points of view.

Human Rights Protections: To prevent possible misuse, it is important to specifically include human rights concepts and safeguards, as well as to define and clarify any ambiguous terminology.

Coherent Legal Framework: Make sure that the proposed legislation and any laws already in place are consistent and coherent. 

Enhance the criminal justice process by integrating technology more effectively:  Examples of this include digitalizing the acquisition of evidence, holding proceedings online, and recording statements on video to expedite trials, minimise backlogs, and improve transparency.

Investing In Infrastructure: Strengthening the court, legal aid services, and law enforcement organisations through investments in infrastructure, training, and recruitment is known as capacity building. Fair and effective judicial administration will result from having enough resources.

Restorative justice: Adopt the restorative justice tenets of restitution, rehabilitation, and reconciliation to address the underlying causes of crime, lower recidivism rates, and provide victims closure.

We may move toward a criminal justice system that respects the rule of law, defends human rights, and successfully meets the demands of its varied people by pursuing these progressive measures as a country.

Importance of the Suggested Reforms in New Criminal Laws:

The goal of the change is to make the complicated and antiquated criminal statutes more straightforward. The changes will reflect the evolving nature of crime, society, and technology, as well as bring the laws closer to the spirit and ethos of India.

The harsh sedition statute under Section 124A of the IPC, which has been extensively criticised for being abused against dissenters and government critics, would be repealed as a result of the change.

In addition, the reform would create new crimes that the current laws do not sufficiently address, like organized crime, mob lynching, terrorism, and corruption.

Through the inclusion of men and transgender people as possible victims and perpetrators alongside women, the reform will render some sexual offences gender-neutral.

The change will result in a greater utilisation of electronic evidence and Through the reform, forensics and electronic evidence will be used more frequently in investigations, prosecutions, and adjudications.

By enabling residents to file a police complaint at any police station, regardless of where the crime was committed, the reform will provide them more influence. Effective protection of citizens' constitutional rights, including the rights to life, liberty, dignity, privacy, and a fair trial, will also be ensured by the change.

These laws aim to update the criminal justice system and modernise the existing legal framework.   

Punitive versus reformative justice: By substituting community service for incarceration, the Bills aim to shift the legal system in the direction of reformative justice.  They do, however, largely preserve the criminal justice system's current punitive nature. 

Criminal versus civil jurisprudence: The laws keep a number of offences from the IPC and CrPC that could be classified as civil disputes because they injure people rather than being crimes against the state or the public.  

Trial process and upholding public order: The Bhartiya Nagarik Suraksha Samhita contains procedures for investigation and trial, as well as provisions on maintaining law and order. The question is whether a law on criminal procedure should deal with maintaining public order as well. 

Overlap with special laws: The  Bhartiya Nyay Samhita Adhiniyam 2023 retains several provisions from the IPC, which have been incorporated in other special laws. Removing these might help in reducing inconsistencies and administrative duplication. The Bills also add provisions from other special laws related to terrorism and other organised crimes.

Age for criminal liability:  The minimum age for criminal liability has been retained at seven years, which is lower than the provisions in international conventions and other laws.  

High proportion of undertrials in jails:  The Bhartiya Nagrik Suraksha Sanhita retains the current provisions in CrPC.  It also prohibits bail for the accused if they have multiple cases pending.  It does not allow plea bargains to be struck for a lesser offence.  

Court directives, including those pertaining to anticipatory bail and arrest procedures, are not codified in the Laws.  Additionally, the Bills do not include a number of recommendations from high-level committees regarding the death sentence, bail, confessions, and arrests.  

Obstacles within the institutions: Justice delivery is slowed down by a number of systemic obstacles, including a shortage of forensic experts and open police positions.  These issues are not addressed by the Laws. 

Drafting concerns: The Laws have multiple drafting mistakes, use out-of-date drawings, and fail to address some gaps regarding offences.

Conclusion:

The New Codes have combined the provisions of the Indian Penal Code and the Criminal Procedure Code to create unified provisions that simplify enforcement and provide clarification on the applicable offences.

The implementation of stricter timelines and the provision of technology, audio-visual, and other means for conducting various procedures during trials and investigations are reforms that are sorely needed.

Adopting a strict trial in absentia procedure will enable prompt trial resolution against economic criminals who avoid prosecution by avoiding legal jurisdiction.

However, the success of these changes will also need to be assessed in light of how national courts interpret the New Codes after they go into force.

Through the pursuit of these progressive measures, our country may strive towards a criminal justice system that respects human rights, maintains the rule of law, and efficiently caters to the requirements of its diverse populace.