As the BJP government rolled out the new criminal justice system by changing the 163-year-old colonial era set-up, the opposition sees the state extending its control over individual liberties and rights. It is expected to generate more heat and dust in the coming days, reports Syed Shadab Ali Gillani
After almost 163 years, the British-era Indian Penal Code (IPC) has been replaced by the Bharatiya Nyaya Sanhita (BNS). The Criminal Procedure Code (CrPC) has been replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Indian Evidence Act has been replaced by the Bharatiya Sakshya Adhiniyam (BSA).
Following the reading-down of Article 370 in 2019, the state of Jammu and Kashmir was reorganised into two Union Territories. Consequently, the Ranbir Penal Code (RPC), Jammu and Kashmir’s Dogra-era system was subsumed completely by the IPC, the governing law across India since the British colonial era.
These new criminal laws, passed by the parliament in December 2023, were implemented across the country on July 1, 2024. These aim to modernise the legal framework by addressing contemporary issues such as organised crime and economic offences. They emphasise identity and authenticity in light of technological advancements and introduce community service as a form of punishment. These new laws signal a substantial shift in India’s criminal justice system, according to the official take on the historic shift
BNS has changed the crime classification and the punishments. Sections related to man-woman relationships and the crimes against women have also witnessed certain key shifts. The BNS recognises new crimes that have emerged over the years and were not part of the criminal justice system.
The BNSS makes forensic investigations a mandatory process and digitises the legal processes. The BSA modernises the way evidence is handled by welcoming electronic and digital records. It further strengthens transparency in sensitive matters.
Since 1947, the three systems within the criminal justice system have seen revisions time and again. This time, however, the entire system shifted completely.
Home Minister Speaks
Talking to the media, Home Minister Amit Shah said in the three new criminal laws justice replaces punishment. Shah, who led the exercise to review the country’s criminal law system insisted that 77 years after independence, the country now has a completely Swadeshi legal system.
With the overhaul of the colonial-era criminal code, an “Indian soul” has been added to the justice system, he said.”The provisions are such that many groups would benefit. Many sections from the British era have been replaced by sections in sync with today.”
Shah believes that the new criminal laws would create a modern legal system. “We have not just imbibed technology, but have pre-empted technological changes that may take place over the next 50 years. This will be the world’s most modern criminal justice system.”
The new laws, he said, are victim-centric. “Earlier, police picked someone up and his family members had to go to court. Now we have made it compulsory to maintain a register and e-register at every police station that will list which criminal is in police custody. So, a habeas corpus plea in court won’t be needed,” he said. Searches and raids, he said, would be video-graphed.
Criticism from Opposition
India’s opposition has taken a new task in hand to “restrain” Prime Minister Narendra Modi-led government from turning the country into a “police state”, as the change in the criminal justice system “lays the foundation” for it. Congress president Mallikarjun Kharge has threatened, “INDIA will no longer allow this Bulldozer Justice.” The opposition has demanded a fresh and comprehensive review of the new criminal laws in the Parliament of India.
The new criminal laws were passed on December 21, 2023, in the Lok Sabha after the expulsion of the entire opposition, consequently without discussion. President’s assent was procured by the government on December 25, and finally Government notified these on February 2024 for implementation from July 1.
The offences committed before midnight July 1 and all the impending criminal cases would be judged according to the old laws. The implementation of these parallel laws – the old and the new – is contributing to great confusion among the people, law enforcement agencies, and also the legal fraternity.
Congress leader Manish Tewari has demanded that Parliament should re-examine the new criminal laws, claiming they lay the foundation for turning the country into a “police state”.
“It is another case of bulldozing three existing laws and replacing them with three new bills without adequate discussion and debate,” former Home Minister P Chidambaram has said, asserting that the initial impact of these new criminal laws will throw the administration of criminal justice into disarray. “On the other hand, there are several retrograde provisions. Some changes are prima facie unconstitutional,” he said.
Mamata Banerjee has already written to the government of India asking for a deferment of the implementation. “One of the major objections is that the power of the police to extend the custody of people goes against the basic principles of custodial jurisprudence. There are other provisions in the law which are not yet fully implemented, the provision against false promises of marriage, gang rape of minors and mob lynching has not been finalised. Sedition law has not been implemented. It is highly objectionable,” said TMC MP Saugata Roy has said. “We think that these laws are anti-people.”
Ghose said these new criminal laws are “vaguely worded” and leave “huge scope for the government to snatch away citizens’ lives and liberty”.
Shiv Sena (UBT) MP Priyanka Chaturvedi said these laws came to the Parliamentary Standing Committee, the experienced MPs who also practice law gave their dissent note and stated the needed changes but these laws were passed after expelling 146 MPs without considering the objections. Sena has been an ideological ally of the BJP and part of the Parivaar.
NCP leader Supriya Sule said the new laws pose a significant threat to civil liberties and democratic freedoms. “By expanding police authority, extending remand periods, permitting solitary confinement, and diminishing judicial oversight, the NDA government is establishing a repressive police state. The soul of Indian democracy is at stake and we cannot afford to be silent,” Sule has said.
Top constitutional lawyer and former minister Kapil Sibal has said that BNS allows for using draconian police powers for political ends, and the Modi government’s agenda is to silence opponents.
Tamil Nadu Chief Minister and DMK leader has claimed that it had earlier written the Centre urging to reconsider the rollout.
As the new system was rolled out, the country is heading for a stiff battle as the opposition claims the government has already suppressed under special draconian criminal laws such as UAPA and PMLA, and several political leaders are already in jail. (IPA)
The Lone Kashmir Voice
In Jammu and Kashmir, so far the lone voice against the new system has come from CPI (M) leader Mohamad Yousuf Tarigami, who believes the new criminal laws are against the democratic rights of the people.
“These laws were passed in haste, without debate, in a blatantly autocratic and anti-democratic manner, when a large number of opposition MPs were suspended. These are stringent,” Tarigami said in a presser the day the new system was rolled out.
The four-time lawmaker said there are concerns that the new laws will “erode liberties and legal safeguards” of citizens by arming the state with sweeping powers.“The new laws need a thorough review. We demand that the implementation of the new laws be put in abeyance.”
Response from Government
In response, Home Minister Shah said: “The Lok Sabha debated this for nine hours twenty-nine minutes and 34 members participated. The Rajya Sabha debated it for about 7 hours and 40 members participated.” He was responding to the claims by the opposition that the laws were passed when 146 members had been suspended in Lok Sabha.
“Another lie”, he said, was that the Bills were brought after the mass suspension of MPs. “The Bill was listed beforehand by the business advisory committee. Maybe the Opposition did not want to participate. So they resorted to activities so that presiding officers are compelled to suspend them,” Shah said.
Shah said his ministry had sought suggestions from all MPs, Chief Ministers, Supreme Court and High Court judges and bureaucrats on the new laws. “All these suggestions were studied. I chaired 158 meetings to discuss the issue and we came up with a Bill. But the Parliament didn’t clear it just like that. It was sent to the Standing Committee. It was against discussed for three months and members of all parties participated in it,” he said.
“Apart from four political-style suggestions, every suggestion was imbibed, 93 amendments made and the Bill was cleared by the cabinet again and then tabled in Parliament. To give a political colour to such an extensive exercise happening after centuries is not right. I appeal to friends in the Opposition, there are many issues for politics, but these laws are an exercise to ensure timely justice and self-respect for 140 crore people. So please cooperate and if anyone has anything to say, my office is open,” he said.
It must be noted that truck drivers across the country called for a three-day all-India strike beginning January 1, 2024, less than a week after the three new criminal laws were passed. On the government’s guarantee that new transport rules would not be imposed without consulting with the Transport Congress. However, the government failed to keep its promise.
The New Criminal Justice System
The BhartiyaNyayaSanhita (BNS)
The Bhartiya Nyaya Sanhita replaces the Indian Penal Code. There are several new crimes that the BNS has brought forward. Clause 69 is one such new crime that is worth a detailed discussion. This one is meant to penalise such sexual intercourse that is done via the employment of “deceitful means”. The penalty for such a crime is imprisonment for up to 10 years, along with a fine. Here, the term deceitful means comprise of false promises of promotion or employment, marrying after suppressing identity, or inducement.
This law has attracted both acclaim and criticism. Critics are of the view that this law would, in some cases, criminalise consensual relationships.
A significant change comes in the criminal law with the recognition of murder on the grounds of caste, community, or race as a distinct offence, as per the new Clause 103 of the BNS. In recent times, the country has seen various cases of crimes like these. The new law can now make sure that crimes like these get the legal recognition required.
These are offences like that of organised crime and terror. These were previously in the extent of specific laws. The BNS draws inspiration from the UAPA for provisions related to terrorism. Organised crime, as mentioned in Clause 111(1)of the BNS includes “any continuing unlawful activity” that includes robbery, extortion, kidnapping, vehicle theft, contract killing, land grabbing, cyber-crimes, economic offences, trafficking in drugs, people, illicit services or goods, weapons, people, cyber-crimes coming with severe consequences. It includes human trafficking racket for ransom or prostitution. However, it is important to note that terms like “cyber-crimes having severe consequences” are vague in their explanation, and thus will require further clarification.
Clause 304(1) of the BNS defines snatching. The ones who have read the IPC know that snatching, as added in the above-mentioned provision, is a “new” crime, and it is separate from theft. However, the punishment for both crimes is the same; imprisonment of up to three years.
There are several similarities between the BNS and the IPC. For instance, both start with chapters that cater to general exceptions, punishments, and abetment. Both criminal laws further continue with the Right to Private Defence.
The Bhartiya Nagarik Suraksha Sanhita (BNSS)
The BhartiyaNagarik Suraksha Sanhita (BNSS) replaces the Criminal Procedure Code, of 1973. The CrPC offers procedures for prosecution, arrest, bail, and other associated issues.
The BNSS makes forensic investigation a mandate for offences punishable with an imprisonment term of seven years or even more. The crime scenes will be visited by forensic experts to gather forensic evidence and record the process.
The Bhartiya Sakshya Adhiniyam (BSA)
The Bhartiya Sakshya Adhiniyam (BSA) is the new law that replaces the Indian Evidence Act. The new criminal law aims to bring about changes in the manner evidence is processed in the country. A drastic change that the BSA introduced is allowing “electronic and digital records”. This new provision encompasses a wide array of electronic records in its ambit, including server logs, emails, laptops, files stored in devices, location information, website content, messages, and more.
The oral evidence taken electronically is also evidence allowed by the BSA. Moreover, to offer better protection to the victims in a matter of rape, the statement of the victim is to be recorded via audio-video means. This also strengthens the transparency in the investigation.
Another important change that the BSA brings is to expansion of the “secondary evidence”. Now, both written and oral admissions will be coming under the ambit of secondary evidence.
