Mains Marathon 2024

Approach Briefly introduce the three new laws: Explain Key Changes Introduced in the New Laws Discuss the associated challenges and criticism. Conclude Suitably

Introduction

July 1, 2024, marks a significant milestone for the Indian justice system with the implementation of three new criminal laws: the Bhartiya Nyaya Sanhita (BNS), the Bhartiya Nagrik Suraksha Sanhita (BNSS), and the Bhartiya Sakshya Adhiniyam (BSA). These laws are designed to replace the existing Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and the Indian Evidence Act, respectively.

Body

New Changes Introduced in Bharatiya Nyaya Sanhita (BNS) :

• The Bharatiya Nyaya Sanhita (BNS) will replace the 163-year-old IPC, bringing significant changes to penal law.
• A notable introduction is community service as a form of punishment under Section 4. However, the exact nature of the community service to be performed remains unspecified.
• Sexual offences see stringent measures, with the law prescribing up to ten years of imprisonment and fines for those who engage in deceitful sexual intercourse by promising marriage without the intent to fulfil it. The new law also addresses deceit, encompassing false promises related to employment, promotion, or marriage by concealing one's identity.
• Organised crime now faces comprehensive legal scrutiny, covering a broad spectrum of illegal activities. These activities include kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes, and trafficking in persons, drugs, weapons, or illicit goods or services.
• Human trafficking for prostitution or ransom, conducted by individuals or groups acting in concert, as members of organised crime syndicates or on behalf of such syndicates, will face severe penalties. These crimes, executed through violence, threats, intimidation, coercion, or other unlawful means for direct or indirect material gain, will be met with stringent punishment.
• For acts threatening national security, the BNS defines a terrorist act as any activity that threatens the unity, integrity, sovereignty, or economic security of India with the intent to strike terror among people.
• The legislation also addresses the grave issue of mob lynching. It states, “When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to a fine.”
• Key Issues:
  • Criminal Responsibility Age Discrepancy: Criminal responsibility starts at seven, extendable to 12 based on maturity, potentially conflicting with global recommendations.
  • Inconsistencies in Child Offense Definitions: It sets child age below 18, but age criteria for offenses like rape differ, causing inconsistency.
  • Retention of IPC Provisions on Rape and Sexual Harassment: Maintains IPC provisions on rape and sexual harassment, omitting Justice Verma Committee's 2013 suggestions for gender-neutral rape and recognizing marital rape as an offense.

New Changes Introduced in Bharatiya Nagarik Suraksha Sanhita (BNSS) :

• Replacing the Criminal Procedure Code (CrPC) of 1973, the Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces key changes in procedural law.
• One significant provision is for under-trial prisoners, allowing first-time offenders to get bail after serving one-third of their maximum sentence, except for life imprisonment or cases with multiple charges, making it harder for under-trials to qualify for mandatory bail.
• Forensic investigation is now mandatory for offences punishable by at least seven years of imprisonment, ensuring that forensic experts collect and record evidence at crime scenes. If a state lacks a forensics facility, it shall use the facility in another state.
• Timelines for procedures:
  • Medical practitioners examining rape victims must submit their reports to the investigating officer within seven days.
  • Judgments must be delivered within 30 days of the completion of arguments, extendable up to 60 days.
  • Victims must be informed of the progress of the investigation within 90 days.
  • Sessions courts are required to frame charges within 60 days from the first hearing on such charges.
• Hierarchy of courts
  • The Code of Criminal Procedure (CrPC) establishes a hierarchy of courts for adjudicating criminal matters in India. These include
    • Magistrate’s courts:These subordinate courts handle the trial of most criminal cases.
    • Sessions courts: Presided over by a Sessions Judge, these courts hear appeals from Magistrate’s Courts.
    • High courts: These courts have inherent jurisdiction to hear and decide criminal cases and appeals.
    • Supreme Court: The apex court hears appeals from high courts and also exercises its original jurisdiction in certain matters.
    • The CrPC empowers state governments to designate any city or town with a population of over one million as a metropolitan area, thereby establishing Metropolitan Magistrates. The new law omits this provision.
• Key Issues In BNSS:
  • Permitted 15 days of police custody within initial 40 or 60 days
  • Doesn't mandate investigating officer to provide reasons when seeking police custody
  • Allows use of handcuffs during arrests, contradicting SC rulings and NHRC guidelines
  • Scope of mandatory bail limited in case of multiple charges
  • Limits plea bargaining in India to sentence bargaining
  • Restricting bail, and limiting scope for plea bargaining could deter decongesting of prisons
  • Power to seize property expanded to immovable property apart from movable property
  • Several provisions overlap with existing laws
  • BNSS retains CrPC provisions related to public order, raising the question of whether laws governing trial procedure and public order maintenance should be unified or treated separately, considering their distinct functions

Key Changes Incorporated in BSA, 2023:

• The Bhartiya Sakshya Adhiniyam is the new law that replaces the Indian Evidence Act.
• Documentary Evidence: Under the IEA, a document includes writings, maps, and caricatures. The BSA adds that electronic records will also be considered as documents. Documentary evidence includes primary and secondary evidence.
  • Primary evidence includes the original document and its parts, such as electronic records and video recordings.
  • Secondary evidence contains documents and oral accounts that can prove the contents of the original.
    • The BSA expands secondary evidence to include: (i) oral and written admissions, and (ii) the testimony of a person who has examined the document and is skilled to examine the documents.
• Oral Evidence: Under the IEA, oral evidence includes statements made before Courts by witnesses in relation to a fact under inquiry. The BSA allows oral evidence to be given electronically.
  • This would permit witnesses, accused persons, and victims to testify through electronic means.
• Admissibility of Electronic or Digital Records as Evidence: Documentary evidence includes information in electronic records that have been printed or stored in optical or magnetic media produced by a computer.
  • Such information may have been stored or processed by a combination of computers or different computers.
• Joint Trials: A joint trial refers to the trial of more than one person for the same offence. The IEA states that in a joint trial, if a confession made by one of the accused which also affects other accused is proven, it will be treated as a confession against both.
  • The BSA adds an explanation to this provision. 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 in BSA, 2023:
  • Electronic Records:
    • Concerns regarding tampering of electronic records during the search, seizure and investigation process
    • Usually, Electronic records must be authenticated by a certificate to be admissible as documents
      • The Act classifies electronic evidence as documents (which may not need certification), creating a contradiction
  • Exclusion of Police Responsibility:
    • Exclusion of the presumption of police responsibility for injuries to someone in custody

Conclusion

While the introduction of the Bhartiya Nyay Sanhita, Bhartiya Sakshya Adhiniyam, and Bhartiya Nagrik Suraksha Sanhita represents a significant modernization effort in India’s legal framework, the associated challenges and criticisms highlight the need for careful implementation, ongoing training, and public awareness initiatives to ensure that the laws serve their intended purpose of enhancing justice and security in society.