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Justice to Nyaya: Ditching the Colonial Legacies of Criminal Jurisprudence

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KnowLaw
Criminal Jurisprudence

This article aims to discuss how India’s criminal justice system has changed over time, moving from colonial era statues to more recent legislative changes. The main provisions of the July 2024 Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) are reviewed together with the criminal jurisprudence supporting them. With the advancement of female-targeted crimes, the new laws aim to protect women’s and children’s rights while enforcing strict penalties for transnational gangs, organized crime and sexual offenses.

By strengthening the role of forensic sciences, it appears that the digitalization of criminal justice systems will improve the procedural elements. The long-standing issue of delayed justice in India has promise thanks to the incorporation of digital records and provision for summary trials in minor offences unclogging the judicial system in the new acts passed. 

Introduction

A big step towards modernizing Indian criminal justice system has been taken with the implementation of the three new laws in July 2024.The purpose of the proposed bill was to address the issues that the existing system is facing, specifically in trial delays, low conviction rates (mostly in crimes relating women) and restorative justice for the harmed. These modernized efforts aim to handle the complicated nature of criminal behavior and offences in the digital era. By putting in place stronger rules and oversight procedures, the revision also aims to address the long-standing problem of torture in custody. These changes guarantee accountability and transparency by harmonizing India’s criminal justice system with international human rights norms. Thus, the new codes are formed purposes of protecting the rights of the offended parties and punishing the violators with an enhanced view of justice for Indian citizens. 

The New Criminal Laws

Nyaya

Bhartiya Nyaya Sanhita

The Indian Penal Code (IPC) has been the longest standing criminal law statute in India since the British colonial rule in 1860. Developed by Babington Macaulay, its structure and content are highly influenced by the English law adapted to suit the social and cultural context of India. It consists of 23 chapters and over 500 sections addressing crimes affecting the human body, property and reputation. Being a product of the 19th century, the Act became outdated in its approach to address modern crimes such as cybercrimes and became archaic with contemporary human rights standards despite various amendments. 

In response to this, the replacement of IPC with a new code namely the Bharatiya Nyaya Sanhita (BNS) has taken place that seeks to streamline and simplify criminal laws by incorporating provisions to address contemporary issues such as digital crimes, terrorism, gender-based violence. It aligns itself with international human rights standards by focusing on victim rights and restorative justice with a shift from purely punitive nature to rehabilitative and reconciling one. 

Key Provisions and Changes:

Sedition Law:

The Bhartiya Nyaya Sanhita, 2023 repeals the law of sedition which earlier existed as Section 124A of Indian Penal Code.

Section 124A of IPC- “Whoever by words, either spoken or written, or by signs, or by visual representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India], shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.” 

It is declared to India by the Hon’ble Home Minister as no law stands for sedition by implementation of Bhartiya Nyaya Sanhita, 2023.  But, the replacement of “sedition” still seeks to penalise acts that endanger sovereignty, unity and integrity of India under the pretence of Section 150 of Bhartiya Nyaya Sanhita. 

Section 150 of Bhartiya Nyaya Sanhita- “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.” 

The definition of “subversive activities” lacks precision as it fails to specify the extent or target of the harm. The same issue still exists since it is difficult to define what constitutes lawful dissent and protests against the government because these actions and decisions are frequently meant to cast doubt on the legitimacy and authority of the government. This section does not define offensive behaviour; that is outside its purview.  

According to Kedar Nath Singh v. State of Bihar, the Indian Penal Code (IPC) demands disapproval of the legally established government in India, which is seen as a conspicuous symbol of the State. While Cl. 150 fails to specify exactly what is meant by “endangering the sovereignty of India”, it does designate this as an object of harm. 

There is a requirement of mens rea in Section 150 through use of words ‘purposely or knowingly’ but it cannot be seen as an improvement of S.124A as mere introduction of words cannot change the position of law. Mens rea was always a requirement under S. 124A made evident in Kedar Nath. 

The sedition law introduced formally by the British to suppress Indian activities in 1870 has not seen much difference in the contemporary century law made as it is disguise in the change of words. As Advocate Indira Jaising suggests it could be more draconian law than S.124A as the word disaffection towards government has now become the broadest by replacement with sovereignty of India.

Mob Lynching

Bharatiya Nyaya Sanhita (BNS) enacted in 2023 has introduced a provision for an offense of Mob Lynching. It includes the extrajudicial execution of people based on various factors such as race, caste, community, language etc. While IPC does not recognize such offence and these acts were booked under Sections 147, 148, 149, 302, 307, 435, 427 of IPC, 1860. In BNS, 2023, S-103(2) which defines act of mob lynching as murder committed by five or more persons acting in concert for the grounds. 

Situation before BNS, 2023: Though the event was collective, the persons charged for an incident were individually booked for crimes in personal capacity. The process of prosecuting this charge therefore becomes tedious not giving law enough scope to play a notable role in resolving the offense. The court was required to deal with multiple chargesheets to pronounce judgment and the offence can only be well understood when taken as an offence committed as an unlawful assembly. 

Section 103(2) of BNS: This offence is accurately targeted by the law as the composition of the group is defined. The civil offence of caste, gender, race, religion etc. has also found the larger solution as punishment of death or life imprisonment is also defined with the better understanding of the group offense. 

Organised Crime:

BNS introduces ‘organized crime’ and ‘petty organized crime’ as central offences for the first time under Section 111 and 112. Organized crime is an offence which has international ramifications but has not been addressed in IPC, 1860. The need for legal machinery to deal with this was recognized in Maharashtra by the passing of Maharashtra Control of Organized Crime Act (MCOCA), 1999. The recently passed legislation follows the same provision as the MCOCA in dealing with organized crime. 

Section 109 of Bhartiya Nyaya Sanhita, 2023 defines organised crime as “any continuing unlawful activity” committed by “groups of individuals acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit”.

Section 110 of BNS, 2023 defines “petty organised crime or organised crime in general” as “any crime that causes general feelings of insecurity among citizens”. The provision highlights various types of such offences, which include the theft of or from a vehicle, domestic and business theft, trick theft, cargo crime, theft (attempt to theft, theft of personal property), organised pick-pocketing, and snatching.

While the state laws and central law do not stand to conflict with one another, the questions of special court jurisdiction and quantum of punishment pertain. The states may refer to respective State law to invoke the same because of the presence of a more elaborate and exhaustive legislation available for the same. Therefore, while offences like corruption are sought to be combated through this section, it can be beneficial by making necessary amendments on the dependent legislations like Prevention of Money Laundering Act, 2002(PMLA) for a collective approach. 

Issues governing definition of organized crime: The BNS, 2023 has given a significant expansion to the scope of organized crime through the use of terminology such as “effort of group of individual” and “benefit” as a requirement for the offence. While collective recognition of a group can be appreciated, there is ambiguity in recognizing whether there is a requirement for common intention or common objective for the commission of offense. The word benefit is quite broad as under Section 109 as to include anything of benefit to a person whether or not it has any inherent or tangible value, purpose or attitude.

Terrorism

Terrorist act is defined as a new offence  in Bhartiya Nyaya Sanhita, 2023 under the chapter of offence affecting human body. It exactly replicates the definition of terrorist act under Unlawful Activities (Prevention) Act (UAPA). This overlap resembles the absence of a necessary explanation for terrorism being included in Bhartiya Nyaya Sanhita while UAPA serves as the special statute for effectively dealing with terrorist activities. 

The Bhartiya Nyaya Sanhita, 2023 leaves this overlap at the discretion of the Superintendent of Police for registering a case under BNS or UAPA. But, an investigating authority cannot be given unfettered discretion to decide which offence to prosecute a person for when an offence is made out under law.

It is also to be seen that BNS does not mandate the requirement of sanction for initiation of proceedings of offence of terrorist act in court and provides no safeguard of challenging notification of declaring an organization to possess terrorist links. This removal of safeguard and a potential overlap may lead to misuse of such provision. 

Sexual Intercourse on False Promise of Marriage

Bharatiya Nyaya Sanhita (BNS), 2023 considers false promise to marriage a criminal offence under S.69. It defines false promise to marry as: 

Whoever, by deceitful means or by making promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.

Situation before Bhartiya Nyaya Sanhita, 2023 in false promise to marriage: According to National Crime Records Bureau in 2016, recorded 10,068 similar cases of rape by “known person on a promise to marry the victim”. The Indian Penal Code, 1860 deals with this with the joint reading of Sections 375 and 90. The section dealt with listing types of consent but the question of defining ‘intention’ always remained an ambiguity throughout court rulings. The central involved is whether consent is obtained through misconception or by deceitful means. 

Bhartiya Nyaya Sanhita, 2023 on false promise to marry: Although BNS, 2023 serves the purpose in codifying the offense, it doesn’t address the vagueness in what constitutes a false promise. It can be misused to promote restrictive ideas of women consent reinforcing a hinderance on autonomy as the burden of proof of pre-marital sex falls on the woman. The law serves a equal misuse as a site of personal vendetta by women and serves towards promoting endogamy reinforcing the age-old evil of caste in India. 

Community Service

As of 2023, India ranks disturbing low at a standing of 79th of 142 countries in the Rule of Law Index. India always deals with a problem of overcrowding leading to prison overcrowding and an increased number of undertrials. The provision of resources for the same then becomes a costly affair. The State may not always be able to afford such huge amount to resources to the unproductive population. 

This problem led to the idea of community service sentencing for minor and petty offenders thus reducing the number of convicts freeing prison expenditure. Community service as a punishment holds offenders directly responsible for the damage caused by them. It also provides the community with human resources, which otherwise would have remained unproductive behind bars. It also benefits the society by preventing the petty offender’s exposure to hardcore criminal offenders. 

The newly introduced law of Bharatiya Nyaya Sanhita, 2023 reads under 4(f) “community service as a form of punishment”. But the process of setting up a framework for its implementation is still left in the sidelines. The statute does not cover adequately the law required to sentencing/fine. Implications of breach of community service and mechanism for overseeing community service program. Though the introduction of community service is beneficial, it cannot be utilized to its entirety without the availability of a proper guided structure to implement the same. 

Key Concerns

Though BNS, 2023 promises substantially of gender-neutrality, it exhibits and rather reinforces in places gender bias. Chapter 5 addressing offences against women and children exhibit fully gendered language of using “man” reinforcing gender specific norms. It fails to exhibit the possibility of potential threat from other women or transgender acting as yet another medium for outraging the modesty of man. It also fails to penalize sexual offences against men by explicit mention of only female in Section 74 and 77 of sexual assault and stalking respectively.

Clause 2 of BNS has been inclusive of “he” but not of transgender. By removal of S.377 of IPC, 1860 in BNS, 2023 of unnatural sex, no alternative safeguard is provided for sex offences against LGBTQ+ individuals. There is also no recognition of marital rape in BNS, 2023. 

The mandate of forensic science in investigating many offences finds legitimacy concerns and potential impact on justice as BNS, 2023 does not stipulate standards for the collection, preservation, analysis and presentation of forensic science. This lack of framework may lead to contaminated and mishandled data. The recent technological advancements might hamper the justice of those cases that fail to incorporate modern and advanced forensic disciplines. With high risks of cybersecurity and ethical hacking, there is a possibility of misuse of private forensic data of individuals involved in the trial laying responsibility on the judiciary to preserve its security. 

Bhartiya Nagrik Suraksha Sanhita

The origin of the Code of Criminal Procedure (CrPC) dates back to the efforts of the British attempting to establish a formal legal system with uniform administration of justice across the country. The first attempt to codify criminal procedure took place with the enactment of Code of Criminal Procedure 1861 largely based on English legal principles. The progress went on with the enactment of a new code of Criminal Procedure aimed to balance interests of the state and the rights of the accused as Code of Criminal Procedure, 1898. 

After independence, the enactment of Code of Criminal Procedure, 1973 took place which was in usage until the recent passage of the new legislation of Bharatiya Nagarik Suraksha Sanhita, 2023. CrPC, 1973 constituted provisions for bail, rights of the accused, jurisdiction and victim rights. 

The introduction of BNSS, 2023 aimed for a further progress with aim of simplifying procedures, emphasizing efficiency and fairness. It incorporated provisions for the usage of technology through supporting e-filing of cases, virtual hearings and digital evidence management. There is an enhanced transparency for the rights of the accused by streamlining bail provisions whilst protecting the victim rights through victim compensation, protection and participation in the trial process. With over 95% similarity and basis on CrPC, BNSS furthers in areas of Alternate Dispute Resolution (ADR) with a focus on speedy and efficient trials.

Key Provisions and Changes

    While CrPC has been heavily criticized for its complexity and procedural inefficiencies BNSS seeks to provide a more efficient system reducing confusions and delays. Under CrPC, the filing of an FIR under S.154 to 156 seemed rather intimidating which was further simplified with the introduction of Section 100 in BNSS allowing for a simplified procedure of filing electronic complaints. Section 400 of BNS provides a detailed framework for bail applications categorizing offences and outlining the required criteria for bail granting based on the severity of the crime. There is an extensive usage of technology in provisions of BNSS where Section 200 and 220 allow the provision of mandating use of electronic means for submitting documents and evidence and allows virtual court hearings. 

    The procedure of police custody has also changed where it extends to 15 days in parts or whole opposed to the 24-hour custody according to CrPC anytime during the initial 40-60 days out of the 60-90 days period. The BNSS also provides for the power to use handcuffs during arrest of only habitual offenders or persons accused or rape acid attack, organized crime, economic offences and offences endangering sovereignty of India as it may infringe the personal liberty of the accused. The BNSS retains the provision of mandatory bail and adds that the first-time offenders get bail after serving one-third of the maximum sentence. 

    Key Concerns

    The primary concern with the feasibility of BNSS is its implementation as involving new technological integration requires substantive improvement in the current infrastructure of Indian judiciary. Ensuring that the stakeholders like judicial officers, law enforcement agencies and legal practitioners be equipped with the new technological advancements is a significant challenge. 

    The solution of BNSS to ensure speedy justice brings the question of possible violation of the due process and rights of the accused. Prioritizing speed over thoroughness may potentially affect the quality of justice delivered. 

    While encouraging ADR reduces the burden on courts, there is an existent risk of coercion into settling disputes outside the formal judicial process. The quality and training of the mediators must be well studied for proper implementation of the same. 

    The BNS must carefully analyse that it does not disproportionately impact the marginalized communities because of established technological barriers. Ensuring accessibility and inclusivity of all sections must be a critical outcome of the legislation.

    Bhartiya Sakshya Adhiniyam

    The Indian Evidence Act, 1872 was drafted by Sir James Fitzjames Stephen designed to provide a uniform set of rules and principles for the admissibility of evidence in Indian courts. It covered admissibility of evidence, burden of proof in civil and criminal cases presumption, witness testimony and documentary evidence including public and private documents. 

    With the rapid advancement of technology and evolving human rights activism, the necessity arose for a more modern and flexible approach to evidence law. The Bharatiya Sakshya Adhiniyam (BSA) seeks to integrate technology into the legal process by recognizing digital evidence and electronic records. It simplifies the rules for cross-examination ensuring clarity and fairness. BSA aims strongly an emphasis on human rights protection by strengthening procedures against coerced confessions and providing safeguards for vulnerable witnesses by protecting their identity. It revises the legal presumptions to include modern forms of evidence while setting out procedures for documenting and preserving evidence. BSA also ensures that the rights of the witnesses and victims are protecting by establishing witness protection program and protecting victim rights to present evidence and participate in proceedings. 

    Key provisions and Changes

    BSA retains most provisions of Indian Evidence Act (IEA) while providing extensions of modern evidence for the same. While under the IEA electronic records were considered secondary, BSA classifies them as primary evidence. Under the IEA, document includes writing, maps and caricature while BSA also add electronic records as documents. BSA also allows oral evidence to be given electronically wherein this would permit witnesses, accused and victims to testify through electronic means. It expands electronic records to include information stored in semiconductor memory or communication devices like smartphones and laptops. The concept of joint trial is further enhanced in BSB where it states that a trial of multiple persons, where an accused has absconded or has not responded to an arrest warrant, will be treated as a joint trial.

    Key Issues

    India, at its present, lacks the capacity to completely digitalize itself. Though Hon’ble Home Minister Amit Shah promises a completely digital legal system by 2027, it seems a dream far-fetched. The judicial set-up of India lacks necessary technological infrastructure and trained personnel to handle electronic evidence and virtual court proceedings. There is a serious prevailing concern of cybersecurity and data privacy breaching the sensitive legal data. As Justice Chelameswar claims it can just an old wine in new bottle. He says “Under the changes introduced in the Indian Evidence Act, now known as the BSA, courts are allowed a maximum of two adjournments to avoid unnecessary delays in case hearings. Criminal case judgements must be delivered within 45 days after the trial ends. Charges must be framed within 60 days of the first hearing. How on earth are the courts going to deliver such stringent deadlines? Do we have the wherewithal” 

    While it introduces significant attempts at modernizing India’s evidence law, it is required to handle along with the resource constraints and technological integration to create an effective system in the present circumstances of India. 

    Conclusion

    Forensic Science

    The article contributes to discussion of the three criminal laws, including their background and salient features. Additionally, it aims to highlight the key issues surrounding their application in the contemporary society of India to guarantee an enhanced criminal code. Although the  introduction of the three criminal laws marks a milestone in Indian legal history, it is crucial to acknowledge the resources allocated to updating the laws conform to them. The pursuit of speedy justice must be balanced alongside the preservation of procedural justice and human rights. The laws must be synchronized with the existing laws and provisions to ensure uniformity in the interpretation by the courts across the country. 

    The best possible application of the laws can only be brought by broader social engagement and adaptation rather than sole reliance on judicial application. For a successful and enhanced criminal justice system in India, the laws must be made compatible with India’s current societal framework while also meeting 21st century international norms. 

    References

    Submitted by Amulya T., a Second Year Student pursuing B.B.A.LL.B. at O.P. Jindal Global University, Sonipat, Haryana.