Indian Criminal Law: Changing Paradigm

The Lok Sabha, on 20 December, passed three new bills, namely the Bharatiya Nyaya (Second) Sanhita, the Bharatiya Nagarik Suraksha (Second) Sanhita and the Bharatiya Sakshya (Second) Bill, that is, the BNS-2, the BNSS-2 and the BSB-2, which respectively seek to repeal and replace the Indian Penal Code, 1860, the Code of Criminal Procedure,1973 and the Indian Evidence Act, 1872.

The oft-quoted criticism of criminal justice system is that ‘the process is the punishment’. Various issues plague the Indian criminal justice system. This, in turn, has resulted in delayed investigation, pendency of cases, low conviction rates, and a violation of the rights of victims and accused.

During the past seventy five years of our country’s existence, we have had major learnings of our fault lines. These fault lines are a cocktail of historical, social, political and economic reasons. From time to time, changes have been made to address concerns of changing times. However, such patchworks have not been able to match the people’s expectations.

Therefore, the proposed overhaul of the criminal justice system has stoked people’s interest. In this article, we intend to understand key changes which have been brought in the newly introduced criminal laws.

For starters, the underlying objective is to replace colonial hangover with sui generis legislation which caters to unique Indian needs and aspirations. The emphasis is on reformative instead of retributive justice, on making the system victim-friendly, citizen-oriented, speedy, and simple.

With the afore mentioned background, we proceed to note key changes proposed in the BNS-2. Several progressive changes have been made. The BNS-2 for the first time recognizes ‘transgender’ in its scope. Several offences have been made gender-neutral, such as voyeurism, assault or use of criminal force to woman with intent to disrobe, etc. Interestingly, ‘community service’ has been introduced as a punishment, which is a welcome step towards reformative aims.

BNS-2 takes note of the offences which have recently drawn a lot of attention, such as organised crime, abetment taking place outside India of offences within India, mob lynching, acts affecting sovereignty and security of India, etc. Hate speech under the BNS-2 now expressly includes acts committed through electronic communication.

‘Organised crime’ has now been made a pan-Indian offence under the BNS-2. It includes repeated commission of an activity prohibited by law - including extortion, land grabbing, cyber-crimes and economic offences - by a group of persons acting as a ‘syndicate.'

Since BNS-2 criminalizes abetment taking place outside India a criminal offence in India, this gives wider jurisdiction to Indian courts, and gains significance in light of recent incidents of terrorism committed outside India upon Indian embassies and officials.

The impact of making such abetment punishable will have to be assessed with respect to foreign holding entities of Indian companies, as they may be made liable for criminal offences committed by their Indian subsidiaries, if the allegations include actions by the parent company or its personnel outside India that amount to abetment. Related changes in the BNSS-2 provide more detailed procedures for investigation outside India and for forfeiture of property of proclaimed offenders staying abroad.

Moving on to the next significant legislation, that is, the BNSS-2. Many of the provisions under BNSS-2 seek to codify and put together comprehensively the learnings of the past few decades. For instance, BNSS-2 provides for the registration of FIRs by electronic means as well as registration of ‘zero FIRs.' The requirement of preliminary enquiries in judicial pronouncements has now been given statutory backing. BNSS-2 also fixes time limits for investigation, committal, discharge and pronouncement of judgment, that is, at all pre-trial and trial stages. The victim has also been given greater say in the course of criminal proceedings. For instance, prosecution cannot be withdrawn without hearing the victim.

BNSS-2 puts a higher thrust on integrating technology with criminal procedure. Electronic means have been recognized for serving summonses, recording statements, and in providing for the mandatory videography of searches and seizures. Collection of forensic evidence has been mandated for serious offences. Importantly, witness protection schemes have been provided for the first time.

BNSS-2 now clearly defines police custody and judicial custody, which is presently missing under the CrPC. Police custody now includes fifteen days of custody, which can be authorised in parts during the initial forty or sixty days of the sixty or ninety days period of judicial custody.  Concerns have been expressed regarding effect of this provision vis-à-vis the right of accused persons to obtain bail for the initial forty or sixty days or the sixty or ninety day period.

Among the changes proposed to the Indian Evidence Act, 1872 regime by the BSB-2, definitions such as ‘documents’ and ‘electronic evidence’ have been given more clarity. What we currently refer to as a ‘65B certificate’ has been a point of contention, with the Supreme Court having to step in repeatedly to clarify its requirements. To address this, the BSB-2 now appends the certificate in standard form, though its impact in each case would need to be seen.

The enactments are a well-meaning step in the right direction, and will hopefully go a long way to reinforce people’s faith in the Indian criminal justice system. However, these reforms cannot be expected to succeed on their own, unless the necessary support system is also provided. To ensure that the objectives of these enactments are properly implemented at the ground level, it is imperative to equally strengthen judicial and investigative mechanisms.

Another interesting thing to see would be judicial interpretations of these three enactments in the coming few years, from both a procedural and constitutional perspective, and how the principles laid down in the past will be integrated.

About the authors: Kumar Kislay is a Partner and Vibhor Jain is a Senior Associate at JSA.