Analyzing the Overhaul of India’s Criminal Laws: Provisions and Controversies

Through voice voting, the Lok Sabha approved the three bills that seek to replace laws from the colonial era with new ones, overhauling the nation’s criminal justice system.

The Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973; and the Indian Evidence Act, 1872 are planned to be replaced by the three bills.

In 2023, the Bharatiya Nyaya (second) Sanhita was introduced to replace the IPC.

Bharatiya Nagarik (second) Suraksha Sanhita, 2023, will take the place of CrPC.

A new bill called Bharatiya Sakshya(second) Bill, 2023 would replace the Indian Evidence Act.

The criminal law reform measures were defended in parliament by Home Minister Amit Shah. He said that they represented a change from the criminal laws of the colonial era, putting justice and reformation ahead of punishment and deterrence. He also underlined how the legislation aims to put the public at the forefront of the criminal justice system.The legislation has already sparked worries about possible human rights breaches and the insufficiency of protections against law enforcement agency abuses. Leaders of the opposition, including Senior Advocate Kapil Sibal and Adhir Ranjan Choudhary, brought attention to these issues. There have been 141 opposition Members of Parliament (MP) suspended from both chambers recently; last week, 13 lawmakers from the Lok Sabha were suspended, and this week, over 80 legislators have been suspended.

Bharatiya Nyaya (Second) Sanhita:

Significant modifications have been made to the BNS II for offenses including terrorist attacks, organized crime, mortality by negligence, mob lynching, and criminal conspiracy.

Various expressions that define life in imprisonment:

“Imprisonment for life, that is to say, imprisonment for the remainder of a person’s natural life” was the definition of life imprisonment under the BNS.

BNS II still uses both phrases.

Terrorist actions

Words like “intimidating the public or disturbing public order” have been eliminated by BNS II.

Additionally deleted were the lines “acts which destabilize or destroy the country’s political, economic, or social structures, or create a public emergency or undermine public safety.”

Some of the most inventive acts of terrorism that BNS II has developed are acts done to cause destruction.

Some of the most inventive terrorist acts have been included in BNS II, including: using criminal force against any public official; producing, smuggling, or circulating counterfeit Indian paper money, coinage, or other materials; or committing acts to damage or destroy “critical infrastructure” or harm the country’s monetary stability.

The BNS made it illegal to even own property that was acquired via the commission of terrorism. It is currently only illegal under BNS II if the property was generated from or acquired “knowingly.”

Furthermore, it is only illegal to harbor or hide a terrorist when the conduct is carried out “knowingly” or “voluntarily.”

Criminal collusion with a shared objective

In addition to the conspiracy offense specified in Clause 111 of the BNS, criminal conspiracy is also penalized under Clause 61 of the BNS.

This section (article 61) has been amended by the BNS II to include conspiracy carried out with a “common intention.”

The least severe penalty for mob lynching

Murder by mob lynching is a subcategory of murder for which the BNS established penalty. A minimum sentence of seven years in jail as well as a fine were ordered.

The seven-year minimum sentence was removed by the BNS II.

As of right now, killing five or more people for any reason—including caste, language, or personal beliefs—will be considered a serious crime punishable by life in jail or death as well as a fine.

The addition of organized crime as a crime:

It comprises offenses carried out on behalf of a criminal organization, such as abduction, extortion, and cybercrime.

These days, little organized crime is also an illegal act.

Now, seditious speech is not illegal.

Sedition is no longer illegal under BNS II. Rather, actions that jeopardize India’s sovereignty, unity, or integrity now carry a new criminal code.

Community involvement

“Community service” is defined more precisely in the amended bills.

Although community service was suggested as a form of punishment in an earlier draft of the law, it was unclear exactly what would constitute community service.

According to the amended measure, community service is any court-mandated labor that serves the community and, additionally, is a form of punishment.

Bharatiya Nagarik Suraksha (Second) Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which seeks to replace the Code of Criminal Procedure, 1973, introduces new laws such as Zero-FIR, Electronic FIR, and preliminary enquiry before the registration of FIR in certain cases.

A Zero FIR can be registered at any police station where information about a cognizable offence is received, regardless of its territorial jurisdiction. The police officer is duty-bound to register the first information regardless of the territorial jurisdiction, and the relevant provision for the same in BNSS is Section 173. The Supreme Court has also stressed the importance of registering Zero-FIRs in several cases, including those for crimes against women.

Zero FIR is not a newly discovered concept in the Indian criminal law system, as it was suggested in an advisory issued by the Ministry of Home Affairs in 2015. After registering the FIR, the police station is required to transfer relevant documents to the relevant police station, which has jurisdiction over the matter. In such cases, the investigating officer must take cognizance of the offence and submit a report under Section 170 of the Criminal Procedure Code, and forward the case to the court. Section 173 also provides for the registration of the FIR electronically. However, the signature of the person giving such information is required to be obtained within three days before the e-FIR can be taken on record.

This provision has come as a major relief for female victims. This will help them not only prompt the registration of sensitive cases but also help them not repeat their ordeal while registering their FIR. Section 173(3) allows the officer in charge of the police station to take action on information about a cognizable offense. The Supreme Court has held that FIR registration is mandatory if it discloses a cognizable offense.

Bharatiya Sakshya

It keeps the majority of the IEA’s rules, such as those regarding confessions, the relevance of the facts, and the burden of proof. However, it brings about several important changes, such as:

Documentary Evidence: The BSB2 expands the definition of documents to consist of electronic records alongside traditional writings, maps, and caricatures.

Evidence, both primary and secondary: Original paperwork, computerized data, and video recordings all remain primary evidence.

These days, admissions made verbally and in writing, as well as the testimony of a trained witness who has reviewed the records, are regarded as secondary evidence.

Oral Evidence: The BSB2 allows for the electronic submission of oral evidence, which means that victims, accused parties, and witnesses can all testify electronically.

Admissibility of Electronic Records: Digital or electronic documents have the same legal standing as paper documents.

This comprises information stored in semiconductor memory, smartphones, laptops, emails, server logs, locational evidence, and voicemails.

Revised Justification for Joint Trials: Joint trials now include situations in which one accused party is not present or has not answered an arrest order.



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