Syllabus
GS Paper 2 – Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.
Context
President Draupadi Murmu gave her assent to the three new criminal code bills, which were cleared by Parliament last week.
Revolutionizing Justice: India’s Historic Overhaul of Criminal Laws
- The President of India recently approved three landmark bills:
- Bharatiya Nyaya Sanhita – Indian Penal Code
- Bharatiya Nagarik Suraksha Sanhita – Code of Criminal Procedure
- Bharatiya Sakshya Act – Indian Evidence Act
- These bills replace the outdated Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act of 1872.
- The union home minister emphasized their focus on justice over punishment.
- The bills aim to revamp the criminal justice system with clear definitions of offenses and their punishments.
- Key changes include removing sedition, stricter penalties for ‘mob lynching,’ defining organized crime, introducing electronic FIR, and specific provisions for offenses against women and children.
Legacy and Impact: IPC, CrPC, and Evidence Act in the Indian Legal System
- Indian Penal Code (IPC):
- Enacted in 1860 under the Charter Act of 1833 during British rule in India.
- Drafted by the First Law Commission led by Thomas Babington Macaulay.
- Completed in 1850 but delayed due to the Indian Rebellion of 1857.
- Passed into law on October 6, 1860, and became effective on January 1, 1862.
- Initially did not apply automatically to Princely states until the 1940s.
- Revised in 1971, and significant changes made, including recent milestones like the decriminalization of homosexuality (Section 377) and the repeal of Section 497 (adultery).
- Extended to Jammu and Kashmir on October 31, 2019, through the Jammu and Kashmir Reorganization Act of 2019.
- Code of Criminal Procedure (CrPC):
- Enacted in 1973 and effective from April 1, 1974.
- Procedural legislation outlining the mechanism for enforcing criminal laws.
- It originated in 1861, was replaced by Act 10 of 1882, and underwent multiple amendments.
- Replaced by the Code of Criminal Procedure in 1898 and further amended in 1923.
- Significant recommendations for reform in the 14th Report (1958) led to the current version passed in 1973.
- Administers and enforces substantive criminal laws, including the Indian Penal Code.
- Indian Evidence Act, 1872:
- Originally passed by the Imperial Legislative Council in 1872 during the British Raj.
- Governs admissibility of evidence in Indian courts.
- Defines evidence as pertinent, relevant, and sufficient facts to convince the court of their veracity.
- Essential for establishing the protocol and process of judicial and quasi-judicial proceedings.
- Section 3 provides a comprehensive definition of a court, including judges, magistrates, and other legitimate authorities.
- Key legislation modifying the admissibility of evidence and the law of evidence in the Indian legal framework.
- Came into force on September 1, 1872, consisting of 167 sections and 11 chapters.
Issues and aspirations
- Indian Penal Code (IPC)
- Current IPC Limitations:
- Enacted in 1860, the IPC may not fully align with evolving values and democratic ideals.
- Considered operational but potentially outdated in reflecting contemporary realities.
- Bharatiya Nyaya Sanhita Bill Proposed Changes:
- Seeks to update the IPC by amending 175 sections, introducing eight new sections, and repealing 22 sections.
- Aims to bring criminal laws in line with modern socio-economic and political contexts.
- Current IPC Limitations:
- Code of Criminal Procedure (CrPC)
- Issues with Current CrPC:
- Established in 1973, the existing CrPC may have shortcomings in addressing current legal and societal challenges.
- Limited provisions regarding detention periods and law enforcement procedures.
- Proposed Changes in Bharatiya Nagarik Suraksha Sanhita Bill:
- Introduces significant amendments, including an extension of the detention period without charges to 90 days.
- Grants new discretionary powers to law enforcement, such as the controversial ‘right to handcuff.’
- Raises concerns about legitimizing encounters and violence during arrests.
- Appears to deviate from global criminal justice trends, as it extends detention periods contrary to international practices.
- Issues with Current CrPC:
- Indian Evidence Act:
- Challenges with Indian Evidence Act of 1872:
- Enacted during the British Raj in 1872, the Evidence Act may lack relevance and modern applicability.
- Rules and principles for evidence admissibility may not align with contemporary legal standards.
- Bharatiya Sakshya Bill Objectives:
- Aims to modernize evidence laws by replacing the outdated Indian Evidence Act.
- Seeks to introduce updated rules and principles for the admissibility of evidence in court proceedings.
- Challenges with Indian Evidence Act of 1872:
Bharatiya Nyaya (Second) Sanhita, 2023 (BNS2): Shaping Legal Landscapes with Noteworthy Amendments
- Retention and Evolution of Offences in BNS2: A Harmonious Blend of Tradition and Progress
- Old Provision (IPC): Provisions on murder, assault, and causing hurt.
- BNS2 Modification: Maintains existing provisions while introducing new offenses like organized crime, terrorism, and group-related grievous hurt or murder. Introduces community service as a form of punishment.
- Terrorism Defined: BNS2’s Comprehensive Approach to National Security
- Old Provision (IPC): Limited or no specific definition of terrorism.
- BNS2 Modification: Defines terrorism as acts threatening the nation’s integrity or causing terror. Prescribes penalties ranging from death or life imprisonment to imprisonment with fines.
- Organized Crime in BNS2: Addressing Modern Challenges with Stringent Measures
- Old Provision (IPC): Limited or no specific mention of organized crime.
- BNS2 Modification: Includes offenses like kidnapping, extortion, financial scams, and cybercrime. Prescribes punishments varying from life imprisonment to death, with fines for those committing or attempting organized crime.
- Mob Lynching Addressed: BNS2’s Legal Stand Against Group Violence
- Old Provision (IPC): Limited or no specific mention of mob lynching.
- BNS2 Modification: Identifies murder or severe injury by five or more individuals on specific grounds as a punishable offense, carrying life imprisonment or death penalty.
- Sexual Offences Against Women: BNS2’s Modernized Approach with Added Protections
- Old Provision (IPC): Sections on rape, voyeurism, and other sexual offenses.
- BNS2 Modification: Raises the age threshold for gangrape victims from 16 to 18 years. Criminalizes deceptive sexual acts or false promises.
- Sedition Revisions in BNS2: A Shift in Legal Focus with Lingering Concerns
- Old Provision (IPC): Sedition as an offense.
- BNS2 Modification: Eliminates sedition, replacing it with penalties for activities related to secession, armed rebellion, or actions endangering national sovereignty or unity. Critics express concerns over potential residual elements.
- Death by Negligence: BNS2’s Enhanced Punishment for Accountability
- Old Provision (IPC): Lower punishment for causing death by negligence.
- BNS2 Modification: Elevates punishment from two to five years under Section 304A of the IPC. However, doctors, if convicted, face the lower punishment of two years imprisonment.
- Supreme Court Compliance: BNS2 Adapts to Judicial Decisions for Legal Consistency
- Old Provision (IPC): Varies from certain Supreme Court decisions.
- BNS2 Modification: Aligns with Supreme Court decisions by excluding adultery as an offense and introducing life imprisonment alongside the death penalty for murder or attempted murder by a life convict.
- Critique of BNS2: Unraveling Controversies and Unaddressed Concerns
- Criminal Responsibility Age Discrepancy: Navigating Complexities in Juvenile Justice
- BNS2 Provision: Age of criminal responsibility at seven years, potentially extending to 12 based on maturity.
- Criticism: Potential conflict with international convention recommendations.
- Inconsistencies in Child Offense Definitions: BNS2’s Challenge in Uniformity
- BNS2 Provision: Defines a child as someone below 18.
- Criticism: Inconsistency in age thresholds for offenses against children, creating legal disparities.
- Sedition Provisions and Sovereignty Concerns: Unresolved Aspects in BNS2’s Legal Landscape
- BNS2 Provision: Eliminates sedition but raises concerns about residual elements endangering sovereignty.
- Criticism: Ambiguities in addressing aspects related to sovereignty, unity, and integrity.
- Retention of IPC Provisions on Rape and Sexual Harassment: BNS2’s Conservative Stance
- BNS2 Provision: Retains IPC provisions on rape and sexual harassment.
- Criticism: Does not incorporate recommendations of the Justice Verma Committee (2013) for gender-neutral and marital rape offenses.
- Criminal Responsibility Age Discrepancy: Navigating Complexities in Juvenile Justice
Bharatiya Nagarik Suraksha (Second) Sanhita 2023 (BNSS2): Unveiling Transformative Legal Amendments
- Revamped Detention Conditions in BNSS2: A Paradigm Shift in Legal Dynamics
- Old Provision (CrPC): Release on personal bond for undertrials.
- BNSS2 Modification: Restricts release on personal bond for severe offenses, including life imprisonment cases and those facing multiple charges.
- Medical Examination Redefined: BNSS2’s Inclusive Approach to Forensic Procedures
- Old Provision (CrPC): Limited scope for medical examinations.
- BNSS2 Modification: Broadens the scope, allowing any police officer to request medical examinations, making the process more accessible.
- Forensic Mandate: BNSS2’s Imperative for In-depth Crime Investigation
- Old Provision (CrPC): Forensic investigation not mandatory for all crimes.
- BNSS2 Modification: Mandates forensic investigation for crimes punishable by at least seven years’ imprisonment. Requires forensic experts to collect evidence, with electronic recording. States lacking facilities can use those in other states.
- Sample Collection Empowered: BNSS2’s Expanded Authority Beyond Arrests
- Old Provision (CrPC): Limited power to collect samples.
- BNSS2 Modification: Extends power to collect finger impressions and voice samples, even from individuals not under arrest.
- Timelines in Focus: BNSS2’s Pioneering Efforts in Judicial Efficiency
- Old Provision (CrPC): No specific timelines mentioned.
- BNSS2 Modification: Introduces strict timelines – medical reports for rape victims within 7 days, judgments within 30 days (extendable to 45), victim progress updates within 90 days, and charge framing within 60 days from the first hearing.
- Court Hierarchy Revamped: BNSS2’s Unified Structure for Legal Proceedings
- Old Provision (CrPC): Hierarchical organization of criminal courts, including Metropolitan Magistrates.
- BNSS2 Modification: Eliminates the distinction of Metropolitan Magistrates, providing a uniform court structure.
- Critique of BNSS2: Unraveling Concerns and Controversies
- Property Attachment Dilemma
- BNSS2 Provision: Power to seize property from crime proceeds.
- Criticism: Lacks safeguards seen in the Prevention of Money Laundering Act, raising concerns about potential misuse or lack of oversight.
- Bail Restrictions in Multiple Charges: A Closer Look at BNSS2’s Legal Stipulations
- BNSS2 Provision: Denies bail facility for individuals facing multiple charges.
- Criticism: May limit bail opportunities for individuals with multiple charges.
- Handcuff Use Debate: BNSS2’s Stance and the Supreme Court’s Contradictions
- BNSS2 Provision: Permits the use of handcuffs, including in organized crime cases.
- Criticism: Contradicts directives by the Supreme Court, raising concerns about the appropriateness of handcuff use.
- Balancing Act: BNSS2’s Integration of Trial Procedure and Public Order Maintenance
- BNSS2 Provision: Retains CrPC provisions related to public order maintenance.
- Criticism: Raises questions about whether trial procedures and public order maintenance should be regulated under the same law or separately.
- Property Attachment Dilemma
Major Provisions of Bharatiya Sakshya (Second) Act, 2023 (BSB2):
- Definition of Documentary Evidence:
- Old Provision: Traditional documents like writings, maps, and caricatures.
- BSB2 Modification: Broadens the definition to include electronic records, aligning with technological advancements.
- Primary and Secondary Evidence:
- Old Provision: Primary evidence includes original documents.
- BSB2 Modification: Primary evidence now encompasses original documents, electronic records, and video recordings. Oral and written admissions, along with testimony from a qualified individual examining documents, constitute secondary evidence.
- Evidence in Electronic Form:
- Old Provision: Traditional oral evidence.
- BSB2 Modification: Permits electronic provision of oral evidence, facilitating testimony through electronic means for witnesses, accused individuals, and victims.
- Grants electronic or digital records equivalent legal status as paper records, encompassing various forms such as semiconductor memory, smartphones, laptops, emails, server logs, locational evidence, and voicemails.
- Amended Explanation to Joint Trials:
- Old Provision: Joint trials.
- BSB2 Modification: Expands the definition to include cases where one accused is absent or has not responded to an arrest warrant, categorized as joint trials.
- Criticism of BSB2:
- Allows information obtained when the accused was in police custody to be admissible, but not if obtained when the accused was outside.
- The Law Commission recommended removing this distinction.
- Excludes several significant recommendations by the Law Commission.
- Notable exclusions, such as presuming police responsibility for injuries sustained by an accused in police custody.
- Recognizes admissibility of tampered electronic records.
- Lacks safeguards to prevent tampering and contamination of electronic records during the investigative process, raising concerns about the integrity of evidence.
- Allows information obtained when the accused was in police custody to be admissible, but not if obtained when the accused was outside.
Significance of the New Legal Reforms:
- Clear Definitions for Evolving Crimes:
- The bills provide explicit definitions for terrorism and organized crime, adapting the legal framework to contemporary challenges and the changing nature of criminal activities.
- Expedited Trial Measures:
- Introducing a 30-day limit for concluding judgments and restricting adjournments, the bills aim to expedite the trial process, preventing unnecessary delays in delivering justice.
- Recognition and Stricter Punishment for Offenses:
- Mob lynching is explicitly identified as an offense, emphasizing the need to address mob violence with stricter penalties. The bills also propose enhanced punishment for crimes against women, prioritizing safety.
- Efficient Legal Process for Petty Offenses:
- The act proposes concluding trials for petty offenses within six months, streamlining the legal process and addressing the backlog of cases efficiently.
- Adaptation to Contemporary Debates and Societal Responsibility:
- The inclusion of various provisions showcases an awareness of contemporary political and social debates. Additionally, the emphasis on community service reflects a comprehensive approach to criminal activities, highlighting societal responsibility.
Addressing Concerns and Ambiguities: Five Forward Steps
- Clarification and Transparency:
- Ensure comprehensive explanations and transparency in the language of the new acts to address concerns about potential misuse and ambiguity in definitions. Clear and precise language can contribute to a more equitable and just legal framework.
- Gender-Neutral Provisions:
- Review and amend gendered provisions to promote equality and eliminate any potential bias. Strive for a gender-neutral approach to ensure that the laws are fair and inclusive.
- Stakeholder Consultation:
- Conduct extensive consultations with legal experts, scholars, and human rights activists during the drafting and review stages. Involving diverse perspectives will contribute to a more nuanced understanding of the potential implications of the laws.
- Balanced Discretionary Powers:
- Establish clear guidelines and limitations when granting discretionary powers to law enforcement. The aim should be to strike a balance between protecting individual rights and enhancing law enforcement effectiveness, preventing any potential abuse of authority.
- Phased Implementation and Rigorous Monitoring:
- Introduce the proposed changes gradually to minimize disruptions and allow for comprehensive adaptation. Implement a robust monitoring system that includes regular evaluations to track the impact of the laws and address any issues promptly, ensuring continuous improvement and accountability.
- Addressing Criticisms through Amendments:
- Proactively seek and analyze criticisms against the acts and be open to amendments that address valid concerns. Regularly engage with stakeholders to identify areas of contention and modify provisions accordingly to enhance public trust and legitimacy of the legal reforms.
Conclusion
The new legal acts, including the Bharatiya Nyaya Sanhita (Second) Bill, Bharatiya Nagarik Suraksha Sanhita (Second) Bill, and Bharatiya Sakshya (Second) Act, represent a substantial modernization of India’s criminal justice system. Key features, such as precise definitions for terrorism and organized crime, measures for expedited trials, explicit recognition of mob lynching, and stricter penalties for crimes against women, indicate a forward-looking approach to address current challenges. The reforms also introduce provisions for efficient resolution of petty offenses, adapt to evolving political and social debates, and emphasize community service. While generally aligning with contemporary needs, critiques exist, particularly regarding criminal responsibility age and potential issues related to sedition. In summary, these acts signify a meaningful step toward a more relevant, efficient, and socially conscious legal framework in India.
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Practice Question
Assess the implications of the new criminal law reforms on India’s criminal justice system. Discuss the potential benefits and challenges associated with these legislative changes.