Abstract
With its rich history and diverse society, India has taken its first step towards a transformative legal journey. The overhaul of its penal code and criminal procedure, through the Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagrik Suraksha Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023 holds profound implications for the nation. This article delves into the pressing need for reform within India's criminal justice system, plagued by issues such as backlog, opacity, and archaic laws. It examines the objectives of these ambitious reforms, which range from ending judicial bottlenecks to simplifying legal procedures and embracing citizen-centric approaches. While these reforms are a commendable step towards modernization, they are not without their share of challenges, including drafting complexities and the need for comprehensive restructuring. This article also explores the political context surrounding these reforms and draws parallels from international examples to underscore their global relevance. Moreover, it analyses the potential impact of these reforms on Indian citizens, emphasizing the benefits and challenges they might encounter.
I. Introduction
The bedrock of India's erstwhile criminal justice system, a vestige of its colonial past dating back to the 19th century, comprised of a trio of statutes: the Indian Penal Code, 1860 ('IPC')1; the Code of Criminal Procedure, 1973 ('CrPC')2; and the Indian Evidence Act, 1872 ('IEA')3 (collectively, 'erstwhile criminal laws'). These venerable laws had long defined the nation's legal landscape, but they also faced intense scrutiny for perpetuating power imbalances rather than delivering true justice.4 While the need for reform has reverberated through India's legal circles, substantial change has remained elusive.
Recognizing the pressing need for reform, the Government of India embarked on a vital mission — to fortify law and order, simplify legal proceedings, and create a more citizen-centric legal structure. On 25.12.2023, the President of India gave her assent to three significant Acts passed by the Parliament poised to usher in a new era of Indian criminal jurisprudence.5 These new Acts collectively aim to replace the archaic colonial-era laws with a framework rooted in Indian ethos:
The Bharatiya Nyaya Sanhita, 2023, replacing IPC; ('BNS')
Bharatiya Nagarik Suraksha Sanhita, 2023, replacing CrPC; ('BNSS')
Bharatiya Sakshya Adhiniyam, 2023, replacing IEA; ('BSA')
At their nascent stage, these laws (collectively, 'the new criminal Code') are yet to be implemented since they will be effective from 01.07.2024. However, they have already sparked intense debates and discussions across the nation. While some hail this move as a long-overdue decolonization of India's criminal justice infrastructure, others raise valid concerns about the abruptness of these reforms and the inadequacy of public consultation.
This article explores the multifaceted aspects of this legal reform and endeavours to dissect the implications and intricacies of the new criminal Code. Amidst this backdrop of legal transformation, it aims to offer insights into the path ahead, where justice, equity, and transparency intertwine with India's evolving legal landscape.
II. The Need for Reform
India's erstwhile criminal justice system stood at a crossroads, demanding profound reforms to align itself with the ever-changing needs of society. These reform imperatives stemmed from multifaceted challenges, each echoing the call for transformation.
The system grappled with the issue of judicial backlog, a substantial impediment to justice. With over 4 crore cases pending in various District and Subordinate Courts,6 the right to a speedy trial, a cornerstone of criminal justice, had often been compromised. Alarmingly, in 2021, roughly 77% of India's prison population consisted of undertrial prisoners,7 effectively turning the legal process into a form of punishment. The National Human Rights Commission has raised concerns about the human rights violations stemming from these sluggish reforms.
The sheer complexity of legal procedures was another pressing concern. The system's intricate and convoluted procedures had long hindered common citizens' access to justice. This convolution had been aggravated by the multiplicity of punishments under the law and the subversion of criminal trials that are caused by numerous special criminal laws.8
Not just the procedures but also the language of the law had been arcane and complex and could not be understood by many easily. As English has become more uniform globally, it has substantially drifted away from the colloquial drafting used in the erstwhile Indian laws put in place more than 150 years ago.
To sum up, these pressing challenges underscored the imperative for comprehensive reform, as a consequence of which the new criminal Code was passed by the Parliament with an aim, inter alia, to ensure that India's criminal justice system evolves to meet the demands of contemporary society while upholding justice, fairness, and human rights.
III. The New Reforms and Their Objectives
The new criminal Code heralds a transformative wave in India's criminal justice system. The reforms target a broad spectrum of offenses, including terrorism, corruption, mob lynching, and organized crime, bringing them firmly under the purview of penal laws. Beyond this fundamental shift, the new criminal Code aims to decentralize justice, allowing individuals to register complaints at any police station, regardless of where the alleged crime occurred. Embracing the digital age, the new criminal Code advocates for the video recording of search and seizure operations, promote the extensive use of electronic evidence and forensic techniques during investigations and introduces the concept of community service as an alternative form of punishment, novel to the Indian justice system. Furthermore, it envisions a swifter justice system, advocating for video trials and even trials held in the absence of the accused.
A well-defined set of objectives drives these sweeping reforms, primarily focused on modernizing and streamlining various facets of the legal framework that governs the nation's criminal justice system.
One notable change relates to abetment outside India for offenses committed within India, ensuring accountability beyond geographical borders.9 Additionally, these reforms encompass the concept of 'organized crime,' which includes various unlawful activities, such as cybercrimes and economic offenses, carried out by organized groups with punishments ranging from life imprisonment in case of serious contraventions to rehabilitation through measures like community service in case of petty crimes.10
The new Code also introduces an offense related to 'terrorist acts,' strengthening India's counterterrorism efforts.11 Furthermore, it addresses acts endangering India's sovereignty, unity, and integrity, redefining offenses like sedition.12 Considering India is taking increased cognizance of these offenses, the punishments prescribed are harsh and severe.
To expedite the legal process, the new criminal Code introduces provisions to facilitate the timely presentation of reports and documents in court, ensuring evidence availability, even in cases where key individuals like public servants, scientific experts, or investigating officers may no longer be accessible.13 Providing for the admissibility of electronic and mechanical copies of documents as evidence, the new criminal Code expands the scope of secondary evidence in court proceedings14. Additionally, it mandates all state governments to establish witness protection schemes, acknowledging the importance of safeguarding witnesses' interests.15
The reforms represent a significant stride toward a Digital India16 by allowing electronic processes in trials, inquiries, evidence recording, and more, enhancing efficiency and aligning legal proceedings with contemporary digital practices.17
In summary, the new Code aims to address contemporary challenges, enhance the efficiency of legal processes, and align the criminal justice system with evolving societal realities and technological advancements. These reforms signify a critical step toward a more equitable, accessible, and responsive legal framework in India.
IV. Challenges and Concerns in the New Reforms
These reforms have brought both anticipation and scrutiny to India's legal landscape. The new criminal Code, which aims to revamp the country's criminal justice system, has garnered attention. While these changes present an opportunity for modernization, a closer look reveals complexities and concerns.
One overarching concern pertains to the core structure of the new criminal Code, which essentially retains the existing legal framework. Instead of creating a comprehensive and distinct structure, the reforms involve a reshuffling of section numbers. This seemingly cosmetic change raises practical challenges, potentially complicating legal processes for practitioners, judges, and investigators accustomed to the erstwhile system.
Moreover, drafting deficiencies in the new Acts have been noted. For instance, the acts that endanger India's sovereignty, unity, and integrity remain incomplete and vague. Terms like 'subversive activities' and 'separatist activities' lack precise definitions, leaving room for discretionary interpretation and potential misuse. Additionally, several errors in grammar, syntax, and logic, coupled with incomplete sections, suggest a lack of thorough review before the presentation.
The new criminal Code retains Victorian-era moral codes, including obscenity, decency, and morality provisions. Notably, it fails to recognize marital rape, reflecting an archaic perspective. Furthermore, the new criminal Code does not address inclusivity concerns raised by recent legal developments, neglecting provisions for sexual assault against transgender persons or others beyond the binary concept of 'biological women.'
The new amendments grant increased authority to the police, mandating compliance with police directions and allowing for detainment and release at their discretion18. While maintaining law and order is crucial, expanding police powers raises concerns about potential abuse, considering instances of police brutality. This expansion is unwelcome at a time when India desperately needs policing reform and requires an overhaul of an outdated policing system that was put in place in 1860, a time when the political system, as well as the civic culture of the country, were entirely different.
In summary, while the new reforms present an opportunity for transformation, their emphasis on numerical adjustments and preserving outdated moral codes suggest that the reform process may fall short of true decolonization. To ensure a just and comprehensive transformation, nationwide stakeholder consultations and meaningful public contributions are imperative. Changing the nomenclature alone will not suffice to free Indian laws from their colonial shadows; substantive change is the need of the hour.
V. International footprint
The title of the new reforms reflects an attempt to emphasize India's historical and geopolitical significance by observing a shift from using 'Indian' to 'Bharatiya.' As India gathers strength in worldly affairs and asserts its identity with greater vigour, the usage of the name 'Bharat' is becoming frequent and popular in State affairs.19
While this change in nomenclature aims to reclaim the nation's original name, it remains ironic that the language of the laws remains entrenched in the old Victorian style. The need to simplify legal language was a major thrust behind the amendments20. Laws primarily address ordinary citizens, and their intelligibility should be a priority. Many English-speaking countries have adopted plain language policies for drafting legislation, ensuring that those affected by them easily understand laws.21 This shortcoming in the new criminal Code, which fails to simplify the language, is a significant concern.
Additionally, as international borders become increasingly porous, one aspect affecting cross-border movement concerning criminal law enforcement is the use of 'Look-out Circulars.' These circulars have been frequently issued in India over the past decade against Indian citizens and foreign nationals alike,22 acting as a deterrent against the participation of foreign citizens in Indian court proceedings. However, the new criminal Code does not address the issue of Look-out Circulars or provide clarity regarding their use. This oversight could impact India's ability to pressure foreign authorities and manage cross-border criminal cases effectively.
India's limited number of Mutual Legal Assistance Treaties ('MLATs') with other countries can also be attributed to the complexities of its legal system. The new reforms do not simplify these complexities, potentially hindering the prospects of India entering into more MLATs in the future. However, this could change with India's stronger role in international politics.
Lastly, including 'organized crime' in the new reforms, encompassing economic offenses, has implications for cross-border cases. Many economic offenses have an international dimension, and the expanded jurisdiction of the new criminal Code could affect individuals residing outside India who engage in or assist business activities within the country. This may impact the ease of doing business and lead to reluctance from other nations to trade with India.
In conclusion, the new reforms to India's criminal justice system, encapsulated in the new criminal Code, signify a pivotal moment in the nation's legal history. While they address critical issues, including backlog reduction, modernization, and enhanced digital integration, they also raise valid concerns about their comprehensive nature, drafting quality, and the balance of police powers. As India strives for a more equitable and responsive legal framework, it is imperative that these reforms undergo thorough scrutiny, inclusive stakeholder consultations, and careful refinement to ensure that they truly meet the evolving needs of society while upholding the principles of justice, fairness, and human rights. As India undergoes a transformation in its global image, moving away from the perception of a 'soft state' and towards that of a 'hard state,' the new laws serve to reinforce the State's endeavours in this transition.23
Footnotes
1. The Indian Penal Code, 1860. https://www.indiacode.nic.in/bitstream/123456789/2263/1/aA1860-45.pdf.
2. The Code of Criminal Procedure,1973.https://www.indiacode.nic.in/bitstream/123456789/16225/3/A1974-02.pdf.
3. The Indian Evidence Act, 1872. https://www.indiacode.nic.in/bitstream/123456789/2188/1/aA1872-1.pdf.
4. "Reformations Required in the Criminal Justice System of India." Amicus. January 31, 2021. https://www.amicusx.com/post/reformations-required-in-the-criminal-justice-system-of-india.
5. "Bills to replace criminal codes enacted into law as President Murmu gives node." Deccan Heral. December 25, 2023. https://www.deccanherald.com/india/bills-to-replace-criminal-codes-enacted-into-law-as-president-murmu-gives-nod-2824616
6. Chishti, Aiman J. 2023. "Over 4 Crore Cases Pending in Trial Courts; More than 60 Lakh Backlogs in High Courts: Law Ministry." www.livelaw.in. July 29, 2023. https://www.livelaw.in/top-stories/over-4-crore-cases-pending-in-trial-courts-more-than-60-lakh-backlogs-in-high-courts-law-ministry-233926#:~:text=In%20response%20to%20questions%20raised.
7. Prison Statistics India-2021." n.d. https://ncrb.gov.in/sites/default/files/PSI-2021/Executive_ncrb_Summary-2021.pdf.
8. Kunal Ambasta. 2020. "The Other Pandemic: Special Criminal Laws." Deccan Herald. July 3, 2020. https://www.deccanherald.com/opinion/the-other-pandemic-special-criminal-laws-856788.html.
9. Section 48 of the BNS
10. Section 109,110 of the BNS.
11. Sec 111 of the BNS.
12. Section 150 of the BNS.
13. Section 336 of the BNSS.
14. Section 61 of BSA.
15. Section 398 of the BNSS.
16. Ravi Shankar Prasad. 2022. "Opinion: The Digital India Transformation." The Indian Express. The Indian Express. June 2022. https://indianexpress.com/article/opinion/columns/digital-india-eight-years-on-narendra-modi-5g-aadhaar-7948202/.
17. Section 532 of the BNSS.
18. Section 172 of the BNSS
19. "India, That Is Bharat: A Short History of the Nation's Names, from the Rig Veda to the Constitution of India." 2023. The Indian Express. September 5, 2023. https://indianexpress.com/article/explained/explained-history/india-bharat-name-history-8925757/.
20. As explained in the Statement of Objects and Reasons appended to the Bills.
21. E. Tanner, 'The Comprehensibility of Legal Language: Is Plain English the Solution?' (2000) 9 Griffith Law Rev. 52, at 52-3.
22. "Look-out Circulars – Origin, Recourse and the Intervention by the Courts - Trials & Appeals & Compensation - India." n.d. Www.mondaq.com. Accessed September 22, 2023. https://www.mondaq.com/india/trials-amp-appeals-amp-compensation/1207820/look-out-circulars--origin-recourse-and-the-intervention-by-the-courts.
23. "Is R&AW the New Mossad? India's Image Turns from 'Soft State' to Hard under Modi and Doval." 2023. First post. September 20, 2023. https://www.firstpost.com/opinion/is-raw-the-new-mossad-indias-image-turns-from-soft-state-to-hard-under-modi-and-doval-13144392.html.
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