India’s criminal justice overhaul: New laws replace Colonial-era codes

Dipak Kurmi

(The writer can be reached at dipakkurmiglpltd@gmail.com.)

The Bharatiya Nyaya Samhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam are poised to replace the outdated Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872, starting this July. During the inauguration of a workshop organised by the Ministry of Law and Justice, the Chief Justice of India hailed the enactment of these laws as a “watershed moment.” This significant legislative overhaul ushers India’s criminal justice system into a new era.

In updating the three laws that have governed India’s criminal justice system for nearly 150 years, significant changes have been introduced. These new laws are crafted with an Indian essence, prioritising the protection of women and children, punishing murderers, and deterring threats to the state. They aim to shift towards a reformative justice system, incorporating community service as an alternative to imprisonment. The Bharatiya Nyaya Sanhita 2023 is a comprehensive effort to redefine and refocus the Indian Penal Code of 1860. The Bharatiya Nagarik Suraksha Sanhita 2023 acknowledges the growing role of technology in legal proceedings.

The new laws are designed to be anti-criminal and justice-oriented, with a strong focus on civil liberties. The Bharatiya Nagrik Suraksha Sanhita mandates that victims receive a copy of the First Information Report (FIR) and be kept informed about the progress of the investigation, including updates via digital means. It also includes provisions for conducting all trials, inquiries, and proceedings electronically, with summonses being served through electronic communication or registered post. Furthermore, the process of searching for a place or seizing property must be documented using audio-video recordings. The police officer is required to promptly forward these recordings to the District Magistrate, Sub-Divisional Magistrate, or Judicial Magistrate of the First Class. To prevent abuse of power, an investigating officer can only request the court attach the proceeds of a crime with prior approval from the Superintendent of Police or the Commissioner of Police.

The information about the commission of a cognizable offence must be registered by the SHO, regardless of where the offence occurred. For offences punishable by seven years or more of imprisonment, the SHO is required to ensure that forensic experts visit the crime scene to gather forensic evidence and record the process of evidence collection using a mobile phone or any other electronic device.

The new Act allows for the admissibility of electronic or digital records as evidence, broadening the definition of secondary evidence to encompass copies made from the original by mechanical processes or those compared with the original. It also sets limits on which facts are admissible and establishes certification requirements for such evidence in court.

As a first step, community service has been introduced as a form of punishment, highlighting the humanising aspect of the new legislation. To facilitate speedy trials, an independent Directorate of Prosecution will be established in every district. Provisions include summary trials for less serious offences and allowing victims to contest the closure of cases involving offences punishable for over seven years. Additionally, mob lynching is recognised as a heinous crime, with the death penalty as a potential punishment.

The notion that extending police custody from 15 to 90 days is a shocking provision that will lead to police overreach is unfounded. In reality, the total period of police custody remains restricted to 15 days. This change was necessary because, in cases where the investigation was transferred from the local police to the CID or CBI, the subsequent agency’s hands were tied if the initial 15 days had already elapsed. Importantly, it is ultimately the court’s decision whether to grant police custody. Are those opposing these new laws questioning the decisions of the Hon’ble Courts? Concerns that the new laws threaten individual freedom are misguided, as they actually preserve personal liberty, offer jurisdictional flexibility, and include mechanisms to ensure accountability.

A thorough examination of the Bharatiya Nyaya Sanhita 2023, the Bharatiya Nagrik Suraksha Sanhita 2023, and the Bharatiya Sakshya Adhiniyam 2023, in comparison with the Indian Penal Code 1860, the Code of Criminal Procedure 1973, and the Indian Evidence Act 1872, reveals that these new laws are a much-needed transformation. They liberate the nation from the remnants of colonial rule and usher in a new era of justice and humanism in India’s criminal justice system.