India is on the verge of a significant legal transition. On July 1, 2024, three new criminal laws will come into effect, replacing the colonial-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act. While these changes are intended to modernize and Indianize the criminal justice system, they have sparked considerable debate and controversy.
On 12 December 2023, Union Home Minister Amit Shah introduced three revised Bills in the Lok Sabha, aiming to replace the British-era criminal laws that have governed India for over a century. The three new Bills set to replace existing laws are:
- Bharatiya Nyaya (Second) Sanhita Bill, 2023 – Replaces the Indian Penal Code (IPC) of 1860.
- Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 – Supersedes the Code of Criminal Procedure (CrPC) of 1973.
- Bharatiya Sakshya (Second) Bill, 2023 – Replaces the Indian Evidence Act of 1872.
Upon their introduction in August, the Bills were referred to a 31-member Parliamentary Standing Committee, led by BJP MP Brij Lal. The committee consulted various experts and stakeholders, leading to a report adopted on 7 November 2023. Despite the extensive review, opposition MPs highlighted several errors and recommended over 50 changes, criticizing the lack of diversity in consulted experts and the rushed introduction of the laws.
Source: ThePrint
Key Highlights of the Revised Bills
Bharatiya Nyaya (Second) Sanhita, 2023
Section 113 of this Bill modifies the definition of terrorism to align with the Unlawful Activities (Prevention) Act, 1967 (UAPA). The new definition includes acts intended to threaten India’s unity, integrity, security, economic security, or sovereignty, or to strike terror in the population. Bill expands the scope to include activities related to any counterfeit Indian currency, not just high-quality counterfeits as specified in the UAPA. Possessing property derived from terrorism is punishable if done knowingly, and harboring terrorists is punishable if done voluntarily and knowingly.
Bharatiya Nagarik Suraksha (Second) Sanhita, 2023
The Bill includes provisions such as allowing police custody of 15 days to be availed in parts or during the initial period of judicial custody. This has raised concerns about the potential denial of bail based on incomplete police custody periods.
Bharatiya Sakshya (Second) Bill, 2023
This replaces the Indian Evidence Act of 1872, aiming to modernize the evidentiary standards and procedures in the Indian legal system.
Source: ANI
Criticisms
Lack of Informed Debate and Scrutiny
One of the most significant criticisms is that the Bills were rushed through Parliament without adequate debate or scrutiny. The laws were introduced in the monsoon session of Parliament on August 11, 2023, without sufficient notice, preventing the opposition from objecting effectively. Despite being reviewed by a Parliamentary Standing Committee, numerous errors and concerns raised by opposition MPs and experts were reportedly ignored.
Manish Tewari, a lawyer, MP, and former Union minister, emphasized the need for these Bills to undergo rigorous legislative scrutiny and informed debate in the newly constituted Lok Sabha and Rajya Sabha. He argued that the democratic process must be respected to ensure the laws reflect the will of the citizens.
Ambiguities and Potential Misuse
Several provisions in the new laws have raised concerns about potential misuse and ambiguity. For instance, the Bharatiya Nyaya Sanhita (BNS) includes a section that rebrands sedition, criminalizing activities such as subversive activities, secession, and armed rebellion without providing clear definitions. Critics argue that this could give the police and political establishment broad powers to persecute individuals without accountability.
A public interest litigation (PIL) was recently filed in the Supreme Court by two Delhi residents, Anjali Patel, and Chhaya, seeking to stay the operation and implementation of these new laws. The petition pointed to the Supreme Court’s 1992 decision in CBI v. Anupam J. Kulkarni, which restricted police custody to the first 15 days from arrest. The new rules may lead to prolonged custody periods and potential denial of bail. Terms like “general feelings of insecurity” and “gang” within the context of petty organized crimes are not clearly defined.
Similarly, the Bharatiya Nagarik Suraksha Sanhita (BNSS) includes provisions that allow police custody to be availed in parts during the initial period of judicial custody. This provision has raised fears about arbitrary detention and denial of bail, as it could extend the period an accused spends in police custody.
Retrospective Application of Laws
Another contentious issue is the retrospective application of the new laws. According to Article 20(1) of the Indian Constitution, no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense. Despite this, there is uncertainty over which rules should apply to crimes committed before 1 July 2024 but reported after this date. Criminal lawyers argue that applying the new laws retrospectively would be unconstitutional and could lead to a flood of litigation.
Increased Punishments and Use of Handcuffs
The new laws introduce harsher punishments, including three additional capital punishments and six life sentences, despite the Law Commission’s recommendations to abolish capital punishment. Additionally, the BNSS brings back the use of handcuffs, which the Supreme Court had previously restricted, raising concerns about violations of human dignity.
Bar Council’s Response
The Bar Council of India (BCI) has acknowledged the concerns of the legal fraternity and has stated that there is no immediate necessity for protests or strikes over the issue. The BCI plans to initiate discussions with the Union government and has invited Bar associations to submit specific suggestions on provisions they deem unconstitutional or detrimental to the criminal justice system. A committee comprising senior advocates, former judges, social activists, and journalists will be formed to propose necessary amendments.
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