Dr. Hriday Sarma
(hridaysarma@yahoo.co.in)
India has recently undergone a significant transformation in its criminal
justice system with the introduction of three new laws: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA). These laws replace the Indian Penal Code of 1860 (IPC), the Code of Criminal Procedure of 1973 (CrPC), and the Indian Evidence Act of 1872 (IEA), respectively. The aim is to modernize the legal framework and address contemporary challenges in various aspects of life for all.
The Bharatiya Nyaya Sanhita (BNS) introduces significant reforms by replacing the IPC, notably revising the sedition law under Section 152 to address actions that genuinely threaten national integrity rather than mere dissent. This revision is a critical move towards reinforcing the state of India in protecting national security from both domestic anti-national activities and elements receiving foreign illicit support, thereby upholding the integrity and resilience of the nation.
Additionally, Section 4(f) introduces ‘community service’ as a punishment for six minor offences, including public servants unlawfully engaging in trade (Section 202) and petty theft with returned money (Section 303(2)). The BNS incorporates gender-neutral provisions for assault, criminal force, and voyeurism in Sections 76 and 77, reflecting a broader inclusivity in sexual offenses. Notably, Section 96 replaces “minor girl” with “child,” ensuring both male and female children under 18 are protected from sexual exploitation, thereby emphasizing a more equitable approach to justice. These changes illustrate a progressive shift towards a more inclusive and rehabilitative legal framework, aiming to address contemporary issues with greater sensitivity and effectiveness.
Building on these reforms, the BNS enhances penalties for certain offenses, increasing imprisonment terms in 33 cases and raising fines in 83 offenses. Clauses 99, 105, and 111 introduce mandatory sentences for severe crimes such as buying a child for prostitution, culpable homicide not amounting to murder, and organized crime. Section 103(2) introduces a new category of culpable homicide specifically for ‘lynching,’ including ‘mob lynching’ by defining special provisions for murder or grievous hurt inflicted by groups of five or more persons. This applies when the offenses are motivated by the victim’s social profile—such as race, caste, community, sex, place of birth, language, or personal belief. The section mandates a minimum imprisonment of seven years for such crimes to enhance deterrence and justice. These enhancements strengthen the legal framework of our country by imposing stricter penalties and addressing severe crimes with a more targeted approach.
The Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces updates to the bail provisions previously established under the CrPC. Under the CrPC, an undertrial must be released on a personal bond after serving half the maximum imprisonment for an offence, except for offences punishable by death. The BNSS retains this provision but modifies it under Section 479(1) to allow first-time offenders to be granted bail after serving one-third of the maximum sentence. However, this provision does not apply to offences punishable by life imprisonment or to cases where investigations, enquiries, or trials involving multiple offences or cases are pending. Consequently, because chargesheets often list multiple offences, many undertrial prisoners may find themselves ineligible for mandatory bail under the BNSS.
Section 105 of BNSS outlines procedures for documenting search and seizure operations through videography, including the preparation of lists of seized items and obtaining witness signatures. Initially, the search site must be photographed before any seizure to record its condition. Detailed documentation of the system’s configuration is crucial for re-connection in the forensic laboratory, as Section 176 requires forensic testing for offences with sentences over 7 years.
The Bharatiya Sakshya Adhiniyam (BSA) replaces the IEA, with several noteworthy changes. Under Sections 62 and 63, the BSA grants electronic and digital records the same legal status as paper documents. It mandates that electronic records, including emails and server logs, must be certified by experts under Section 63(4) to ensure their authenticity and admissibility in legal proceedings.
The BSA expands the scope of secondary evidence to include oral reports and copies of electronic records, reflecting its commitment to incorporating modern technological evidence into legal proceedings. This approach ensures that all forms of relevant electronic evidence are effectively considered and verified. Furthermore, Section 100 of the BSS allows courts to resolve ambiguity in documents that only partially match different sets of facts. If a document does not fully fit either set of facts, the court can consider additional evidence to determine which set of facts the document was meant to apply to.
These new laws have significant implications for various stakeholders in society. For public agencies and officials, enhanced forensic processes and electronic evidence provide advanced tools for accurate crime-solving, reducing wrongful arrests and convictions. The judicial system benefits from increased transparency and efficiency due to the integration of digital records and streamlined procedures, necessitating continuous training for police, judicial officers, and other public officials to stay updated on technological advancements and procedural changes.
For civil society, the reforms highlight a progressive stance on human rights, encouraging active engagement in policy advocacy and reforms. The introduction of digital evidence increases accountability in law enforcement and judicial processes, building public trust. Community service as punishment involves civil society in offender rehabilitation, fostering community cohesion, and reducing recidivism.
The private sector must adapt to new regulations concerning digital and electronic records as evidence, improving documentation and record-keeping practices to ensure compliance with legal standards. Companies are incentivised to bolster cybersecurity measures to prevent data breaches that might lead to legal repercussions. The provisions on community service can be integrated into Corporate Social Responsibility (CSR) initiatives, allowing businesses to support community programmes that assist in rehabilitating offenders.
Individuals need to be more aware of new definitions and provisions to protect their rights effectively. The inclusion of transgender individuals in the definition of gender under several sections ensures broader societal protections. The recognition of electronic and digital records necessitates secure management and storage of digital communications and transactions to avoid legal complications. Gender-neutral laws and stringent measures against sexual crimes increase protection for all individuals, fostering a safer environment.
The new laws mark a significant departure from the replaced British-era laws, reflecting a modern, inclusive approach that relies heavily on technology. The BNS addresses contemporary crimes like cybercrime, organized crime, and terrorism, unlike the IPC, which focused on issues relevant to the British colonial administration. The BNSS and BSA comprehensively incorporate digital records, acknowledging technology’s pervasive role in today’s society. The BNS’s gender-neutral approach ensures inclusivity, contrasting with the more gender-biassed provisions of the IPC. The concept of community service marks a shift towards rehabilitative justice, absent in the old IPC. In essence, the introduction of the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam represents a significant evolution in India’s criminal justice system. These new laws modernize the legal framework by promoting inclusivity and human rights while incorporating technological advancements and enhancing procedural efficiency. Public agencies, civil society, the private sector, and individuals will benefit from increased legal protections and a focus on rehabilitation, creating a modern, equitable, and efficient criminal justice system throughout India.
Author:: Dr. Hriday Sarma is a Guwahati-based advocate working on sustainability and cross-border investment matters.