This article has been written by Anurima Malakar from Guru Gobind Singh Indraprastha University

Table of Contents

INTRODUCTION:

India, a country with a rich legal heritage, is witnessing a transformative phase in its criminal justice system with the introduction of three groundbreaking legislative measures namely:

Bharatiya Nyaya Sanhita ^[1](Indian Penal Code, 1860), ^[2]
Bharatiya Nagarik Suraksha Sanhita ^[3](Criminal Procedure Code, 1898^[4]), and
Bharatiya Sakshya ^[5](Indian Evidence Act, 1872). ^[6]

These legislative frameworks aim to redefine and fortify the pillars of justice, security, and evidence within the Indian legal landscape.

The Bharatiya Nyaya Sanhita, with its comprehensive amendments and provisions, seeks to reshape criminal proceedings, emphasizing stringent actions against offenses, especially those directed at women and children.

Simultaneously, the Bharatiya Nagarik Suraksha Sanhita endeavours to establish a more secure environment through nuanced approaches, introducing changes in the treatment of organized crime, terrorism, and police custody.

Furthermore, the Bharatiya Sakshya Bill underscores the technological evolution by acknowledging the significance of electronic evidence, thereby revolutionizing courtroom practices. As India embraces these legislative advancements, it embarks on a journey to align its legal infrastructure with contemporary challenges, ensuring justice, security, and evidentiary practices resonate with the demands of the 21st century.

THE BHARATIYA NYAYA SANHITA, 2023:

The Bharatiya Nyaya Sanhita, enacted in 2023, comprises 356 Sections, featuring alterations and modifications to 175 sections sourced from the Indian Penal Code (IPC). Additionally, 22 sections have been repealed, and 8 new Sections have been introduced. Notably, “community service” has been introduced as a novel form of punishment for minor offenses.

Language Change: The new code brings a language change by extending the definition of male pronouns to encompass men, women, and individuals identified as “transgender” under the Transgender Persons (Protection of Rights) Act, 2019^[7]. Moreover, the term “mental illness,” as defined in the Mental Healthcare Act, 2017^[8], replaces the terms “insanity” and “unsoundness of mind.”

New Provisions and Definitions:

Offences Against Women and Children:

The new code introduces a dedicated chapter on offenses against women and children, separating them from the IPC’s chapter on offenses against the human body.

In contrast to the IPC, where Sections 376DA and 376DB address gang-raping a girl under 16 and 12 years, respectively, the new code’s Section 70(2) prescribes life imprisonment or the death penalty for a group raping any girl below 18 years.

Sexual Intercourse by Deceitful Means:

A noteworthy addition in the new code is the provision addressing sexual intercourse through deceitful means. This introduces a legal perspective on cases involving deceptive practices in matters of sexual conduct.

Sexual Intercourse by Deceitful Means:

According to Section 69 of the proposed code, individuals engaging in sexual intercourse that does not amount to rape with a woman through deceitful means or by falsely assuring marriage may face imprisonment of up to ten years and are additionally liable for fines.

This provision addresses instances where sexual acts are based on deceptive practices, creating legal consequences for such actions. Notably, the previous legal framework did not classify such acts as a separate offense.

Hiring Children for Offenses:

The new code introduces a provision holding individuals accountable if they hire children under the age of 18 to commit an offense. In such cases, the person facilitating the involvement of minors in criminal activities will be held liable for the offenses committed by the children. This provision aims to discourage the use of minors in criminal endeavours.

Death Caused by Rash or Negligent Act and Fleeing the Scene:

Section 104(2) of the proposed code addresses situations where an individual causes death through a rash or negligent act and subsequently flees the scene of the incident.

This provision proposes higher imprisonment, with a maximum penalty of up to 7 years and a fine for individuals found guilty of such actions. The intent is to deter individuals from causing harm through reckless behaviour and then evading responsibility by escaping the scene.

Mob Lynching:

In the proposed Bharatiya Nyaya Sanhita, mob lynching, while not specifically defined, is subject to punishment under Section 101, which also addresses murder. Section 101 provides for the punishment of murder based on factors such as race, caste, community, sex, place of birth, language, personal belief, or ‘any other ground.’

The offense of mob lynching falls under this provision and is punishable by the death penalty, life imprisonment, or imprisonment for a term of seven years or more.

In comparison to the Indian Penal Code (IPC), where mob lynching is treated as murder with common intention and carries the punishment of either death or imprisonment for life, the Bharatiya Nyaya Sanhita introduces Section 101(2). This section expands the range of punishments for mob lynching, including imprisonment for seven years or more, in addition to life imprisonment and the death penalty. The intent is to address and penalize acts of mob violence with a broader spectrum of consequences.

Organised Crime:

Definition of Organised Crime:

Under Section 109(1) of the proposed Bharatiya Nyaya Sanhita, organised crime is explicitly defined for the first time. It encompasses a range of illegal activities such as kidnapping, robbery, vehicle theft, extortion, land grabbing, and contract killing. These activities are conducted by individuals acting in concert, either singly or jointly, with the objective of gaining financial or material benefits. The means employed include violence, threats, intimidation, or other unlawful methods.

Penalties for Organised Crime:

As per Section 109(2), individuals attempting or committing organised crime resulting in death will face severe penalties. The punishment includes either the death penalty or life imprisonment, coupled with a substantial fine of no less than ₹10 lakh. In cases where death does not result from the crime, the offenders shall be liable for imprisonment ranging from a minimum of five years to life imprisonment. Additionally, a fine of not less than ₹5 lakh is imposed.

Provisions Related to Organised Crime:

Sections 109(3) to 109(7) elaborate on the punishments applicable for aiding, abetting, membership in an organised crime group, harboring an offender, or possessing property linked to organised crime.

Petty Organised Crimes:

Definition and Offenses:

Section 110 introduces the concept of petty organised crimes, including offenses like theft of vehicles or from vehicles, domestic and business theft, trick theft, cargo crime, snatching, shoplifting, ATM thefts, and selling public examination question papers.

Penalties for Petty Organised Crimes:

Individuals attempting or committing any petty organised crime, as defined in Section 110, will face imprisonment for a minimum of one year, extendable to seven years.

These provisions underscore the Bharatiya Nyaya Sanhita’s comprehensive approach in addressing and penalizing both organised and petty organised crimes, reflecting an enhanced focus on the legal framework for such offenses.

Definition of Terrorist Act in Bharatiya Nyaya Sanhita:

Terrorist Act:

The proposed Bharatiya Nyaya Sanhita introduces a comprehensive definition of a ‘terrorist act,’ marking a significant departure. Under Section 111(1), an individual is deemed to have committed a terrorist act if they intentionally engage in actions aimed at threatening the unity, integrity, and security of India. The key components include:

Use of Lethal Means:

Creating fear.
Causing death or harm to individuals.
Endangering lives.

Damage to Property:

Causing damage or disruption to public or private property.

Infrastructure Disruption:

Damaging or destroying critical infrastructure.
Disrupting vital systems.

Intimidation and Compulsion:

Intimidating the government or its organizations.
Potentially causing death or injury to public officials.
Compelling government actions.

Inclusion of Treaty-Listed Acts:

Acts falling within the scope of any treaties listed in the Second Schedule to the Unlawful Activities (Prevention) Act, 1967, are also covered.

Penalties for Terrorist Acts:

Under Section 111(2), severe penalties are prescribed for individuals attempting or committing terrorist acts resulting in death. The punishment includes either the death penalty or life imprisonment without the possibility of parole, coupled with a substantial fine of no less than ₹10 lakh.

Penalties in Non-Lethal Cases:

For cases where the terrorist act does not result in death, individuals involved face imprisonment for a minimum of five years, extendable to life imprisonment. Additionally, a fine of not less than ₹5 lakh is imposed.

Provisions for Aiding, Abetting, and Membership:

Sections 111(3) to 111(5) detail the punishments applicable in cases of aiding, abetting, membership, or harboring an offender linked to a terrorist act. These provisions reinforce the Bharatiya Nyaya Sanhita’s commitment to addressing and penalizing acts that threaten national security and integrity.

Petty Theft – Community Service as Punishment:

Section 301 of the Bharatiya Nyaya Sanhita introduces a nuanced approach to petty theft, prescribing community service as the punishment when the value of the stolen property is less than five thousand rupees. This provision addresses the gap in the Indian Penal Code (IPC), providing a tailored response to minor offenses often categorized broadly under Section 378.

Abetment Beyond Borders:

In a significant expansion of jurisdiction, Section 48 of the proposed code extends punishment for abetting an offense within India from a location outside India. This trans-border provision demonstrates the Bharatiya Nyaya Sanhita’s commitment to addressing offenses that transcend geographical boundaries.

Definition and Punishment for Snatching:

Under Section 302, the proposed code explicitly defines snatching as an offense, prescribing imprisonment for up to 3 years and a fine.

This specific inclusion reflects the code’s meticulous approach to categorizing and penalizing criminal acts, ensuring a more comprehensive legal framework for addressing offenses like snatching.

Changes In Punishment For Certain Offences:

Defamation – Revised Punishment:

In a notable revision, defamation under the Bharatiya Nyaya Sanhita is addressed under Section 354(2), carrying a sentence of up to 2 years of imprisonment, a fine, or alternatively, “community service.” This nuanced approach reflects a more varied spectrum of penalties for defamation, emphasizing the code’s adaptability to contemporary legal considerations.

Enhanced Penalty for Causing Death by Negligence:

The proposed code elevates the penalty for causing death by negligence.

In contrast to the Indian Penal Code’s (IPC) Section 304A, which stipulates a maximum imprisonment of 2 years, Section 104(1) of the Bharatiya Nyaya Sanhita prescribes a heightened punishment of up to 7 years, along with a fine.

This adjustment underscores the code’s commitment to proportionate and stringent penalties for offenses resulting in fatalities due to negligence.

Enhanced Penalty for Extortion:

The proposed Bharatiya Nyaya Sanhita brings about a notable escalation in the punishment for extortion.

While Section 384 of the Indian Penal Code (IPC) mandates imprisonment for a maximum of three years, Section 306 of the new code extends the penalty to a more stringent imprisonment term of up to seven years. This adjustment reflects the code’s commitment to addressing extortion with increased severity.

Increased Penalty for Criminal Breach of Trust:

In the case of criminal breach of trust, the proposed code, under Section 315, intensifies the penalty compared to the IPC’s Section 406.

While the IPC prescribes imprisonment for up to three years, the Bharatiya Nyaya Sanhita extends the term to a maximum of five years. This adjustment underscores the code’s emphasis on strengthening consequences for breaches of trust.

Stricter Punishment for Disobedience to Public Servant’s Order:

Section 188 of the IPC outlines penalties for disobeying orders of a public servant, ranging from imprisonment for up to a month to six months, contingent on the level of risk or danger caused.

In contrast, Section 221 of the proposed code enforces a more rigorous punishment, with imprisonment ranging from six months to a year. This shift signifies the code’s inclination toward stricter consequences for disobedience to public orders.

Revised Penalty for Public Misconduct by a Drunken Person:

The Bharatiya Nyaya Sanhita introduces a revised penalty for the misconduct of a drunken person in a public place, amending the provisions outlined in Section 510 of the Indian Penal Code (IPC).

While the IPC prescribes simple imprisonment for up to 24 hours or a fine of 10 rupees, the proposed code’s Section 353 broadens the punitive options. Offenders under the new code may face either community service or a fine, with the monetary penalty capped at a maximum of 1,000 rupees. This modification reflects an effort to diversify and potentially enhance penalties for such public disturbances.

Repealed Provisions:

Unnatural Sexual Offences:

The Bharatiya Nyaya Sanhita omits any provisions related to “unnatural” carnal intercourse, revising the stance taken by Section 377 of the IPC.

Adultery:

The proposed code eliminates the criminalisation of adultery, aligning with the Supreme Court’s decision to strike down Section 497 of the IPC. This move is driven by considerations of arbitrariness and constitutional violations under Articles 14 and 15.

Attempt to Die by Suicide:

The Indian Penal Code (IPC) currently penalizes attempting suicide with the possibility of imprisonment, a fine, or both.

While the proposed Bharatiya Nyaya Sanhita appears to have omitted this provision, attempting suicide remains a criminal offense under Section 224 of the proposed code. This revision maintains the potential for imprisonment, a fine, or both, specifically when the act aims to coerce or hinder a public servant in the execution of their official duties.

THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023:

Designated Police Officer:

According to Section 37, the proposed code mandates each state government to establish a Police control room in every district and at the state level. Additionally, a designated police officer is required to maintain information regarding the names, addresses, and charges against arrested individuals.

Identification and Attachment of Property:

Section 86 empowers the court to initiate procedures for the identification, attachment, and forfeiture of property belonging to a proclaimed offender.

Recording of Search and Seizure through Audio-Video Means:

Section 105 introduces provisions for the recording of search and seizure activities using audio-video electronic means. The proposed code defines audio-video electronic means to include the use of communication devices for purposes such as video conferencing.

Attachment, Forfeiture, or Restoration of Property:

As outlined in Section 107 of the proposed code, if the police or Magistrate possesses reasonable grounds to suspect that any property is directly or indirectly derived from criminal activities, the Court is empowered to undertake proceedings for the attachment of said property.

International Cooperation in Investigations:

In accordance with Sections 112 and 113 of the proposed code, criminal Courts are granted authority to issue letters of request to foreign Courts or entertain letters of request from other countries.

Under Section 112, investigative officers can seek cooperation from a foreign Court to examine individuals and collect evidence, which will be forwarded to the requesting Court. Conversely, Section 113 outlines the procedure for entertaining letters of request from foreign countries, allowing the central government to facilitate the examination of individuals in India, promoting international collaboration in legal matters.

Trial in Absentia (Section 356):

Section 356 of the proposed code empowers the Court to conduct a trial and pronounce judgment in absentia for a proclaimed offender. By deeming the waiver of the right to be present, the Court can proceed with the trial as if the offender is physically present.

Witness Protection Scheme:

The new code mandates each state government to formulate and announce a Witness Protection Scheme. This crucial provision is designed to ensure the safety and security of witnesses, fostering an environment conducive to their cooperation in legal proceedings.

Trial in Video Conferencing:

Embracing technological advancements, the proposed code allows for trials, proceedings, and inquiries to be conducted electronically. This includes the use of audio-video electronic means, facilitating the seamless administration of justice through electronic communication methods.

Enhancing Accessibility and Communication in Legal Proceedings:

E-filing of FIRs (Section 173):

Section 173 of the new code embraces modernization by allowing the registration of First Information Reports (FIRs) through electronic communication. This provision offers flexibility, enabling individuals to report cognizable offences either orally or electronically to the designated police officer.

Informing Victims about Investigation Progress (Section 193):

Section 193(3)(ii) of the proposed code underscores transparency by mandating that police officers must keep the informant or victim informed about the progress of the investigation. This timely communication is stipulated to occur within 90 days, ensuring a more engaged and informed involvement of the concerned parties.

Ensuring Accountability and Timely Justice:

Diary of Proceedings (Section 193):

The proposed code introduces a structured approach to investigations by requiring police officers to maintain a diary of proceedings. This diary must record the time at which the information reached the officer and the commencement and conclusion of the investigation. This meticulous documentation aims to enhance accountability in the investigative process.

Time-Bound Investigations (Section 193):

The new code underscores efficiency by stipulating that every investigation, particularly those involving offences against women and children, must be concluded without undue delay. Specifically, cases of rape, gang rape, and violations under the POCSO Act should be completed within a strict timeframe of 2 months from the date of recording the information.

Timelines for Pronouncing Judgments (Section 258):

In line with the commitment to timely justice, the proposed code empowers the court to pronounce judgments within 30 days from the date of completing arguments. This provision aims to expedite the legal process, with the possibility of extending the timeline to 60 days for specific reasons, ensuring a balance between swiftness and thoroughness.

Flexible Police Custody Period (Section 187):

The proposed criminal code brings clarity to the police custody period, echoing the provision in the existing CrPC. Section 187(2) specifies that the 15-day police custody period may be utilized either in its entirety or partially. This provision aims to provide flexibility in handling cases involving police custody.

THE BHARATIYA SAKSHYA BILL, 2023:

Evidence Rules:

Electronic Testimony (Section 2(1)(e)):

The Bharatiya Sakshya Bill marks a paradigm shift by explicitly defining evidence to include statements or information provided electronically (Section 2(1)(e)). This provision opens the avenue for witnesses, accused individuals, experts, and victims to present their testimony electronically before the court, introducing a modern approach to evidence recording.

Extended Scope of Secondary Evidence (Section 58):

The proposed Bill broadens the horizons of secondary evidence (Section 58). It permits the use of oral and written admissions, as well as evidence from individuals who have examined the document, as secondary evidence. This expansion enhances the flexibility in presenting evidence, adapting to contemporary practices.

Efficient Electronic Evidence Handling (New Schedule, Section 2(1)(c), Section 61):

The Bharatiya Sakshya Bill introduces a new schedule, enhancing the significance of electronic evidence certificates and incorporating the hash value of the original record.

Additionally, the definition of “document” in Section 2(1)(c) is expanded to include electronic and digital records.

Section 61 ensures that electronic or digital records enjoy the same legal standing as other documents, paving the way for their proof through both “primary evidence” and “secondary evidence” methods. These measures collectively aim to streamline the handling of electronic evidence, ensuring their meaningful presentation and legal validity.

Modernizing Judicial Notice:

The Bharatiya Sakshya Bill brings a significant overhaul to Section 57 of the Indian Evidence Act, 1872, introducing Section 52 to address the specific facts subject to judicial notice.

The revised code offers a clear and comprehensive list of facts related to India, enabling the court to take judicial notice of pertinent information. This modernization reflects an essential step toward aligning the evidence laws with the contemporary context of the Indian judiciary.

CONCLUSION:

Positive Aspects:

Focus on Offenses Against Women and Children:

Strengthening laws related to offenses against women and children is a positive step, addressing societal concerns and ensuring stricter penalties for perpetrators.

Organized Crime:

Clearly defining organized crime helps law enforcement and the judiciary combat complex criminal activities effectively.

Terrorist Act:

Providing a clear definition of a “terrorist act” ensures legal clarity and facilitates more robust action against terrorism.

Designated Police Officer and Electronic Evidence (Bharatiya Nagarik Suraksha Sanhita):

Establishing a designated police officer and streamlining electronic evidence usage can enhance efficiency and contribute to a more tech-savvy justice system.

Electronic Evidence Elevation (Bharatiya Sakshya Bill):

Recognizing electronic evidence and allowing virtual appearances can improve accessibility, reduce procedural bottlenecks, and align with technological advancements.

Concerns and Areas for Evaluation:

Enhanced Penalties:

While stricter penalties may deter crime, there’s a need to ensure a balanced approach, avoiding unintended consequences or potential misuse.

Police Custody Period Clarification:

The clarification on the police custody period needs careful implementation to prevent potential misuse and safeguard individual rights.

Abolition of Adultery as an Offense:

While removing adultery as an offense aligns with modern perspectives on personal autonomy, its complete abolition raises debates about moral and societal implications.

Attempt to Die by Suicide:

Despite attempts to decriminalize suicide, concerns remain about potential misuse of legal provisions in specific circumstances.

Impact of Electronic Evidence:

Evaluation Needed:

The effectiveness of streamlined electronic evidence processes requires ongoing evaluation, considering technological advancements and potential challenges.

The changes introduced in the new criminal laws exhibit a mix of positive steps towards modernization and potential concerns. Continuous evaluation and adaptation will be crucial to address challenges and ensure the laws effectively serve justice while safeguarding individual rights and societal interests.