NEW CRIMINAL LAWS IN INDIA

-Lexisnexis

For years the Indian Penal Code (IPC), Indian Evidence Act and Code of Criminal
Procedure have cast a shadow over India’s legal system. While these laws have been
the foundation of our justice system, they have struggled to address the complexities
of modern India. A new era has dawned and India has taken great steps towards
evolution in the field of law with introduction of new criminal laws. The initiative
originated in 2020 when the Committee for Reforms in Criminal Laws (CRCL) was
established, and chaired by Prof (Dr.) Ranbir Singh. The transformative bills, named
as Bharatiya Nyaya Sanhita (BNS), Bharatiya Sakshya Adhiniyam (BSA) and
Bharatiya Nagarik Suraksha Sanhita (BNSS) promise to bring about a rebirth by
replacing these outdated and erstwhile statutes with new legal frameworks that are
specifically designed for the needs of 21 st century India.

Historical Context of Criminal Laws in India

Throughout India’s history, the development of its criminal justice system can be
traced across multiple periods including the Vedic age, Delhi Sultanate, Mughal
Empire era and up to the present stage. During the Vedic era, principles rooted in Rig
Vedic teachings played a role in determining punishments and maintaining order
under the guidance of Dharma. Subsequently during the Delhi Sultanate Era, there
was an evolution influenced by sources like Smriti and the implementation of Shariat
law during that era.

During the time of the Mughal Empire, the Mughals created the Mahakuma e Adalat,
a department responsible, for dealing with both criminal and civil cases under Islamic
law. However, there were multiple challenges that came with this system. These
challenges included the absence of a distinction between the judiciary and the
executive branches, inconsistencies, in the application of criminal laws and instances
of corruption.

During the Colonial period there was a paradigm shift. The East India Company (EIC)
played a key role, in shaping this transformation alongside the introduction of court
systems and the establishment of the High Court. These developments set the
foundation, for the enactment of codes in the 1860s.

These bills have been revised based on recommendations, from the Standing
Committee and had been approved by both houses of Parliament. Hon’ble President
gave her assent on December 25 th, 2023. The need for reforms and changes in
legislation is the realization that the existing laws are outdated remnants of the
colonial era reflecting a criminal justice system that aimed to oppress rather than serve
justice. Many sections of the old laws have become irrelevant and obsolete requiring
an overhaul.
Detailed Overview of the New Criminal

LawsBharatiya Nyaya Sanhita, 2023

New criminal law Bharatiya Nyaya Sanhita of 2023 is an endeavour to redefine and
redirect the code and has replaced the erstwhile Indian Penal Code, 1860. Through
amending, repealing and adding sections this law aims to take a nuanced approach
towards offenses by imposing penalties on actions that pose a threat to the
sovereignty, unity and integrity of India. Additionally, it tackles challenges like
terrorism, organized crime, by differentiating between serious and minor offenses and
imposing strict punishments for serious offenses. The idea of ‘Community Service’, as
a penalty for crimes is now being implemented under the law focusing on a more
rehabilitative approach to justice. The recent legislation has added “snatching” as an
offense, under Section 304 of the Bharatiya Nyaya Sanhita.

Bharatiya Nagrik Suraksha Sanhita, 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023 aims to refine our Criminal procedure
system. By setting timelines for investigations it intends to ensure that justice is more
accessible and responsive to the needs of the people. In this new criminal law one
notable change can be seen in Section 176 of the Act, which mandates investigation
for crimes carrying a punishment of seven (7) years imprisonment or more. This
means that appointed experts will be involved in conducting on site investigations.
Additionally, Section 173 of the Bharatiya Nagarik Suraksha Sanhita embraces the
new digital age by allowing digital methods for trials, inquiries and proceedings. This
shift toward documentation and proceedings aligns with advancements in technology
and helps streamline legal processes. One revolutionary concept is the implementation
of Zero FIRs. According to Section 173 of the Act, individuals have the right to file a
First Information Report (FIR) at any police station, for a cognizable offense
regardless of its jurisdiction. It states that the FIR must be transferred to the police
station, for handling crimes committed in that particular area within a span of 15 days.
Crime and Criminal tracking system will be used for benefit of the public.

Bharatiya Sakshya Adhiniyam, 2023

The Bharatiya Sakshya Adhiniyam has replaced the Indian Evidence Act of 1872
resulting in alterations to the structure of Evidence Law. In today’s environment,
where technology holds great importance, this new criminal law acknowledges
electronic evidence, as any information produced or transmitted by a device or system
that can store or recover data. Section 57 of the Bharatiya Sakshya Adhiniyam
emphasizes the recognition of electronic records as primary evidence. Moreover, the
Act includes provisions that enable the electronic presentation of even oral evidence.
This advancement makes it possible for witnesses to testify remotely ensuring that
digital records hold the same significance as traditional paper documents. Section 24
of the Act, expands on the idea of joint trials.
Comparison of Old vs New Criminal Laws

Basis Old Criminal Laws New Criminal Laws

The laws are Bharatiya
The laws were Indian Nyaya Sanhita, Bharatiya
Laws and Philosophy Penal Code, Code of Nagrik Suraksha and
Criminal Procedure, Indian Bharatiya Sakshya
Evidence Act. The Adhiniyam. The
philosophy was to provide philosophy is to provide
punitive and retributive restorative justice focused
justice. on rehabilitation and
victim centric.
Developed by Britishers Built for the Modern India,
Ideology under British oversight and with focus on ever
ideology dynamic legal landscape.
There are provisions for
There were fixed fixed punishments as well
Sentencing punishments and penalties as restorative justice
specified for various kinds provisions like imposition
of crimes. of community service or
rehabilitation.
The acts provided strict
and rigid rules for Scope of admissibility was
testimonies of witness and expanded to take into
Admissibility of Evidence sometimes relied upon account digital evidence
unreliable circumstantial and records and to
evidence. Electronic strengthen investigations.
evidence had limited
admissibility.
Tiring, cumbersome Aimed at expediting the
and lengthy procedures trial process by
Trial Procedures due to which due to which implementing time limit
people face delays and and leverage technology to
backlogs in courts. enhance efficiency.
Analysis of New Criminal Laws
India’s criminal laws have sparked a closer look into the difficulties, consequences
and objections associated with these changes. A particular area of concern that has
garnered increased scrutiny is the increase in the duration of police custody under the
Bharatiya Nagarik Suraksha Sanhita. Raising the limit from 15 days to either 60 or 90
days depending on the severity of the offense brings up questions about striking a
balance, between law enforcement requirements and protecting civil liberties.
The Bharatiya Nyaya Sanhita introduces a series of broadly defined offences,
particularly those pertaining to the security of the state. While the omission of the
term “sedition” is notable, its replacement, “Acts endangering sovereignty, unity, and
integrity of India,” retains ambiguous wording, contributing to concerns about
potential over criminalization. The expansive scope of offences like “organised crime”
and “terrorist act” remains, and while attempts have been made to clarify and limit
their definitions, questions linger about potential misuse and impact on individuals.
Issues like high vacancies, judicial overload, and the need for comprehensive
infrastructure development and personnel training for forensic experts and audio-
video recording of statements must be diligently tackled to realize the intended
efficiencies.

Section 57 of the Bharatiya Sakshya Adhiniyam emphasizes the recognition of

electronic records as primary evidence. Moreover, the Act includes provisions that
enable the electronic presentation of even oral evidence which is in line with the
digital transformation the country is going through.

The new criminal laws also aim to streamline processes through mandatory audio-
video recording of search and seizure, the comprehensive impact depends on
addressing deep-rooted structural barriers. Achieving the intended reforms demands a
holistic approach, encompassing systemic changes, infrastructure development.

Driving Forces Behind the Reforms

These new laws were created as a result of socio- political factors. Demand for justice
that prioritizes victims, the need for tech regulations due to the digital revolution and
evolving societal values all played a key role. Additionally, there were pressures such
as judicial activism highlighting inefficiencies and international obligations as well as
diverse opinions from judges. While they acknowledged the potential for
improvement they also emphasized the importance of understanding and
implementation. It has also been pointed out that justice has been delivered slow in
India due to a number of pending cases in various courts. Therefore, there is a need to
transition towards a modern legal system.

Conclusion
The analysis of the Bills reveals gaps and shortcomings that warrant attention. The
exclusion of the erstwhile section 377 of the IPC by the Bharatiya Nyaya Sanhita
(BNS) poses a gap, leaving no specific provision addressing the rape of an adult man.
The proposed laws bring in offenses that are worded in a manner particularly
concerning the states security. This could potentially result in over-criminalization and
unclear legal provisions. Despite these concerns, the legislative initiatives
encapsulated in the three Acts underscore India’s commitment to reform its legal and
investigative systems. A notable focus on technology and forensic science positions
the legal framework in the modern era. The Acts demonstrate a commitment to
providing enhanced protection for marginalized and vulnerable segments of society,
aligning the criminal justice system with current needs and values.
FAQS

What are the major new criminal laws introduced in India in 2023?
The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS),
and Bharatiya Sakshya Adhiniyam (BSA).

How do the new criminal laws differ from the previous ones?
The new criminal laws bring substantial changes, addressing contemporary
challenges. Home Minister Amit Shah introduce provisions for Sedition to be treated
as treason, new duration for punishments, e-trials, redefine the concept of police
custody, incorporate technological advancements in investigations, and establish
deadlines for various legal processes.

Why were these changes in the criminal laws necessary?

The changes were deemed necessary to modernize the criminal justice system,
aligning it with evolving societal needs and technological advancements.

Are there any controversial aspects of the new laws?

Controversies surround aspects such as the extension of police custody duration,
potential misuse of expanded powers, and concerns about over criminalization. The
repeal of certain sections, like the erstwhile section 377 addressing rape of an adult
man, has sparked discussions about the completeness and effectiveness of the new
laws.

How can the public access more information about these new laws?
To access detailed information about these new laws, the public can refer to official
government sources, legal databases, and the official websites of legislative bodies,
books and articles of lawyers and law firms. Government announcements, press
releases, and legal commentaries can provide insights of the new laws.

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