New Genie, New Bottle

One of the most substantive parliamentary moves of the 21st century came in through the introduction of new criminal laws which aimed at replacing the colonial criminal laws in form and structure of the Bharatiya Nyaya Sanhita, 2023, the Bhartiya Sakshya Adhiniyam, 2023; and the Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter collectively referred to as “the reformed criminal laws”).

This article analyses the objectives of the above named newly introduced legislations in light of various theories that drive the need of newer legislation towards a desired end by instrumentalizing and paving a way for judiciary to play a key role in ultimately achieving judicial reform.

The very purpose behind introduction of new laws under any regime is motivated by a very simple purpose of ensuring a march towards reformative jurisprudence that leads towards incapacitating the judicial precedents passed under the realm of judicial discipline and proprietary which is also driven by the principle of mens legis.

The need for introduction of such new laws is recognized when judicial discipline blocks the way owing to the existing law framework, which has been referred to as “edict of the legislature” by the Hon’ble Supreme Court of India. At this juncture, the statements and observations of Justice Frankfurter warrant an invitation which reads as under:

“The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it.” [Of Law & Men: Papers and Addresses of Felix Frankfurter]

Under such a scenario, the legislature brings a new ray of legislative intent that paves the way for the for judicial reforms so as to facilitate a necessity that may have arisen owing to newer forms of public evil or social transformation.

The foresight possessed by the father of Indian Penal Code, Lord Thomas Babington Macaulay, more than two and a half centuries back cannot be understood to be efficient enough to transcend and serve upon the modern-day legal implications. The advent of modern society has led to social transformation as well as introduction of newer aspects of evidentiary forms that take a pivotal place in fact formation in the likes of forensic science, digital record keeping, etc.

In the quest to cater to the above, the definitions of words “documents” and “evidence” have been given wider scope that now include electronic or digital record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, cloud, locational evidence and voice mail messages stored on digital devices. [Section 2(1)(d) and 2(1)(e), Bhartiya Sakshya Adhiniyam, 2023]

More reformative actions can be viewed through introduction of “Community Service” as a punishment vide Section 4 of the Bhartiya Nyaya Sanhita, 2023. The offences that attract the said punishment encompass non-appearance as required by a proclamation, attempt to commit suicide, petty theft, misconduct in public by a drunken person, etc. One can squarely witness the introduction of the reformative punishment theory through “Community Service”. The change in the approach by application of punishment theory can also be witnessed through the increase of punishment in the form of imprisonment as well as fines that thrusts towards the deterrent punishment theory.

In addition, the Bharatiya Nagarik Suraksha Sanhita, 2023 adopts a victim centric approach to address the issues arising out of non-availability of information to the victims and informants, to combat which, the Act introduces a mandate upon the police officer to keep the victims and informants updated with the progress of investigation within 90 days of the investigation. Such updates can also be provided through electronic mediums. [Section 193(3)(ii), Bhartiya Nagarik Suraksha Sanhita, 2023]

In the past, the accused's vexatious attempts to cause needless disturbances in the proceedings frequently resulted in delays in providing the accused with the police report and other documents. In order to expedite the process of providing copies to the accused, Section 193(8) was introduced. This means that the police officer must submit to the magistrate, at the time of filing the charge sheet, the number of copies of the police report and any other properly indexed documents that must be provided to the accused. Furthermore, the provision of documents via electronic communication has been included to make this procedure of document delivery citizen-friendly and technologically compatible. Therefore, overall, that the reformed criminal laws fasten clear demarked responsibilities and checks over the litigants as well as upon other stakeholders so as to make each and every available legal remedy efficacious.

From what has been enunciated above, one can understand that each time a change in law has been commissioned, or altogether newer aspects have been introduced in the domain, the key idea behind such change is the development of newer jurisprudence by way of making way for the judiciary to carve new paths to justice.

The very sight of change in the criminal law regime categorically points out that the State, through the legislature, while formulating these new reformed criminal laws have been inspired by the reformative and deterrent approach to build a modern Indian society by facilitating prompt investigations, responsible recording of evidences and more systematic and channelized manners of trials so as to put an end to age-old decisive tactics of delay and desist that resulted into making criminal trials last longer while facts, circumstances and evidence eroded faster and saw no light of justice in many cases.

This paradigm shift within the Indian criminal legal regime transcends mere legal amendments; it embodies a philosophical transformation. The legislature, acting as a sculptor of societal norms, has meticulously crafted the reformed laws driven by a dual approach: reform and deterrence. This metamorphosis aims not only to punish offenders but also to rehabilitate them, fostering a more restorative and inclusive justice system.

About the author: Moiz Rafique is a Practicing Advocate before the Gujarat High Court and the Managing Partner at Privy Legal Service LLP.