Criminal law bills: Gender-neutral offence for adultery, handcuff restrictions among changes suggested by Parliamentary Committee

The department-related Parliamentary Standing Committee on Home Affairs submitted its final reports on November 10 for the three bills aimed at reforming criminal laws in the country..On August 11, the Central government introduced the Bharatiya Nyaya Sanhita (BNS) to replace the Indian Penal Code (IPC); Bharatiya Nagarik Suraksha Sanhita (BNSS) to replace the Code of Criminal Procedure (CrPC); and Bharatiya Sakshya Bill (BSB) to replace the Indian Evidence Act..These bills were subsequently referred for further examination to the parliamentary standing committee headed by Brij Lal, which submitted its reports to Rajya Sabha Chairman Jagdeep Dhankhar on November 10..Notably, concerns were raised by Members of Parliament about the bills being given Hindi names, potentially violating Article 348 of the Indian Constitution. Article 348 mandates that all proceedings in the Supreme Court and every High Court shall be in the English language until Parliament provides otherwise by law.The Ministry of Home Affairs (MHA) defended the use of Hindi names, arguing that since the text of the proposed laws is in English, it does not violate Article 348. The Committee has recorded its satisfaction with the ministry's response..Here are key recommendations from the Committee on the three bills:.No need for penalising knowingly carrying arms as date of enforcement of Section 153AA IPC was never notifiedThe committee pointed out that section 153AA of IPC which punished 'knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms’, had been omitted from the bill.It opined that the omission may encourage groups having such tendencies to organize drills with weapons, which might create enmity between groups and disturb peace. However, the MHA has commented that section 153AA was passed in 2005 but the date of its enforcement was never notified. The committee has taken note of this submission by MHA..Partially retain section 377 of IPC in gender neutral formThe Supreme Court in 2018 had struck down section 377 of IPC and decriminalised all private consensual sexual acts between adults legal including homosexual ones. However, the provision still remains applicable in cases of non-consensual carnal intercourse between adults, all acts of carnal intercourse with minors, and acts of bestiality. Noting that BNS makes no provisions for such acts, the Committee has recommended that to align with bill's objective of moving towards gender neutral offences, Section 377 of the IPC should be retained to the extent that it punishes the acts that the Supreme Court did not decriminalize. .Retain offence of adultery by making it gender neutralThe apex court in 2018 had struck down section 497 (adultery) of IPC which penalised a man for engaging in sexual intercourse with another man's wife.The Court held that the law was archaic, arbitrary and paternalistic and infringed upon a woman’s autonomy, dignity and privacy as it only penalised the married man and reduced the married woman to be a property of her husband.In this regard, the Committee has taken the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity by retaining the law in a gender neutral form, i.e. making both the man and woman equally liable..Define terms such as community service, gang, mafia, crime ring etc.The Committee has recommended defining 'community service' as mentioned in the Bill and has recommend that the term and nature of ‘community service’ should also be specified and suitably defined. It has also recommended inserting a provision for a person responsible to supervise the punishment given in the form of community service.Moreover, the committee has also recommended defining terms like gang, mafia, crime ring, gang criminality, racketeering, criminal organisation and serious offence..Replace words 'mental illness' with 'unsound mind'The Committee has recommended that the word ‘mental illness’ be changed to ‘unsound mind’ as 'mental illness' is too wide a term and could be interpreted to include mood swings or voluntary intoxication. The Committee added that this could create problems during the trial stage as an accused person can simply show that he was under the influence of alcohol or drugs during the time of the commission of crime and he cannot be prosecuted even if he has committed the crime without intoxication..Empower judicial magistrates to impose community service as punishmentThe committee has noted that the BNSS does not empower judicial magistrates to impose community service as punishment. As such, it has recommended providing such power to first and second class judicial magistrates..Restrict use of handcuffs for economic offencesFurther, as per the committee, the use of handcuffs as outlined in proposed Section 43(3) is appropriately restricted to heinous crimes. However, it has taken the view that the words 'economic offences' should be deleted from the provision as they range from petty offences to serious ones. A blanket application of the provision allowing the use of handcuffs to 'economic offences' would not be suitable, the Committee opined. .Allow online FIR only through State-specified modesThe Committee has recorded that enabling online first information report (FIR) registration is a positive step but should be allowed only through modes specified by the State as it can create logistical and technical challenges for law enforcement.Hence, it has recommended granting the government the authority to prescribe specific modalities for electronic FIR registration..Amend provision allowing witnesses to appear at any place within police station limitsThe Committee has appreciated the inclusion of the option for witnesses to appear at the police station when requested by an investigating officer.However, the Committee has stated that the provision allowing witnesses the option to be called to any other place outside the police station but within the jurisdiction of such station, raises concerns about potential complications as it may impede the officer's ability to conduct an unbiased examination in some cases. The Committee, therefore, has recommended making necessary amendments to the proposed provision to mitigate such complications..Discharge before framing of chargesAs per settled law, discharge of an accused person from a case can occur before charges have been framed. However, BNSS suggests otherwise and states that a discharge application can be filed ‘within a period of sixty days from the date of framing of charges’.The Committee has recommended that ‘within a period of sixty days from the date of framing of charges’ should be replaced with ‘within a period of sixty days from the date of supply of documents’, to align the bill with established legal principles. .Facilitate recording audio-visual evidenceGiven the formal adoption of audio-visual and electronic means to undertake various processes, the Committee has recommended adding a proviso to the proposed Section 266 to facilitate recording of evidence for defence through audio-video electronic mode as well.However, the Committee has also recommended that to avoid the possibility of tutoring or intimidation of witnesses, such recording should only be allowed at select government places. The Committee, therefore, has recommended that an appropriate proviso may be inserted to the proposed provision for facilitating audio-video recording of evidence of defence after ensuring proper safeguards.Mandate proper handling of electronic and digital recordsGiven the susceptibility of electronic evidence to tampering, the Committee has recommended that all electronic and digital records acquired during investigation be securely handled and processed through a proper chain of custody, with appropriate provisions included in the Bharatiya Nagarik Suraksha Sanhita..Pertinently, Senior Advocate and MP P Chidambaram has dissented to the three bills.In his dissent note, he addressed concerns related to language representation, content redundancy and the lack of inclusive consultation during the drafting process.While acknowledging the translation of the bills into Hindi, Chidambaram objected to a Hindi-only nomenclature, citing it as unconstitutional, an affront to non-Hindi speaking populations, and contrary to federalism.The note argued that the proposed legislation merely involves a rearrangement of existing laws, causing confusion and inconvenience. The concern is particularly directed at the potential burden on legal professionals, law enforcement and the general public who may need to "re-learn" laws due to the extensive reorganization without substantive changes.Chidambaram also highlighted the absence of input from State governments, bar Associations, police organizations, legal institutions, judges, senior advocates, and legal scholars, raising concerns about the bills being insufficiently scrutinized and lacking scholarly input, potentially impacting the overall quality and effectiveness of the proposed reforms..[Read Parliamentary Committee reports]