Why is it in the News?

Three new criminal code bills, focusing on justice rather than punishment, were passed by the Lok Sabha on Wednesday.

Context:

• Lok Sabha has passed by voice vote the three Bills that aim to overhaul the country's criminal justice system by replacing colonial-era laws.
• The three bills passed are:
  • The Bharatiya Nyaya (Second) Sanhita - replace the Indian Penal Code (IPC)
  • Bharatiya Nagarik Suraksha (Second) - replace Code of Criminal Procedure (CrPC)
  • Bharatiya Sakshya (Second) Sanhita - replace the Indian Evidence Act
• According to the Home Minister, Amit Shah, the three new bills seek to establish a justice system based on Indian thinking and will free people from the colonial mindset and its symbols.

Background:

• Bill Presentation in August 2023: In August 2023, the Union government introduced  three Bills in Parliament intending to revitalize the country's criminal justice system.
  • The Bills in question were the Bharatiya Nyaya Sanhita Bill, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB).
• Referral to Parliamentary Standing Committee: The three Bills underwent scrutiny as they were referred to the Parliamentary Standing Committee on Home Affairs for a thorough review and recommendations.
  • After three months of meticulous deliberation, the committee released reports on each Bill—BNS, BNSS, and BSB—suggesting necessary changes.
• Opposition Dissent on Hindi Titles: A notable point of contention arose during the committee's proceedings, particularly regarding the Hindi nomenclature of the Bills.
  • Opposition members contested that the vernacular titles contravened Article 348, which stipulates English as the official language for courts and legislative matters.
  • Despite opposition dissent, the parliamentary committee sanctioned the Hindi titles for all three Bills.
• Introduction of Revised Versions: After the committee's recommendations, on December 12, the three Bills were withdrawn from Parliament.
  • In a prompt response, revised iterations of the Bills were promptly introduced for further consideration.

Why were new bills deemed necessary?

• Colonial Legacy: From 1860 to 2023, the nation's criminal justice system operated under British-imposed laws.
  • These laws, formulated during colonial times, use outdated language and concepts that may not accurately represent current social norms and values.
• Advances in Technology: The evolution of technology has introduced new aspects to crime, evidence, and investigation, necessitating a response from the legal framework.
• Simplification and Streamlining: Over time, the laws have become intricate, confusing legal practitioners, law enforcement agencies, and the general public.
  • Simplifying and streamlining the legal framework is seen as a way to enhance transparency and understanding.
• Evidence Collection and Presentation: The Indian Evidence Act predates the era of modern forensic science and technological tools, highlighting the need for an update in this regard.
• Reports and Recommendations: Various reports, including those from the department-related Parliamentary Standing Committee on Home Affairs (146th report), emphasized the necessity for a comprehensive review of the country's criminal justice system.
  • Earlier reports (111th and 128th) had also underscored the need for reforms in criminal laws.

About Bharatiya Nyaya (Second) Sanhita (BNS II) Bill, 2023:

The BNS II Bill brings about significant modifications in the treatment of various offences, including criminal conspiracy, mob lynching, death by negligence, organized crimes, and terrorist acts.

• Life Imprisonment: While the BNS defined life imprisonment as 'imprisonment for life,' BNS II retains this phrase alongside the newer definition.
• Terrorist Acts: BNS II removes vague language, focusing on innovative acts such as damaging critical infrastructure, undermining monetary stability, and using force against public functionaries.
• Terrorist Act Offenses: In BNS II, the possession of property derived from a terrorist act is punishable only if acquired 'knowingly.'
• Harboring a person who committed a terrorist act is punishable if done 'knowingly' or 'voluntarily.'
• Criminal Conspiracy: BNS II modifies Clause 61 to include conspiracy with 'common intention.'
• Mob Lynching: The minimum punishment of seven years for mob lynching, as in BNS, is removed in BNS II.
  • Murder by a group based on identity markers incurs life imprisonment or death, plus a fine.
• Organized Crimes: BNS II adds organized crimes, including kidnapping, extortion, and cybercrime committed on behalf of a syndicate. Petty organized crime is also now an offence.
• Changes in Offenses: Sedition is no longer an offence in BNS II, replaced by a new offence endangering the sovereignty, unity, and integrity of India.
  • Community service is explicitly defined as court-ordered work benefiting the community, and serving as a punishment for offenders.
• Supreme Court Conformity: BNS II aligns with Supreme Court decisions, omitting adultery as an offence and introducing life imprisonment as a penalty for murder or attempt to murder by a life convict.
• Sexual Offenses: BNS II retains provisions from the Indian Penal Code (IPC) on sexual offences against women, increasing the age threshold for major classification in gang rape from 16 to 18 years.
  • It criminalizes sexual intercourse with a woman through deceitful means or false promises.

About Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS2) Bill, 2023:

• The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) is designed to supplant the Criminal Procedure Code, 1973 (CrPC), which delineates the procedures for arrest, prosecution, and bail within the Indian legal framework.
• The CrPC, originally enacted in 1861 to streamline India's diverse legal systems, underwent a significant overhaul in 1973.
  • The comprehensive revision led to the introduction of the present CrPC, incorporating changes such as the provision for anticipatory bail.
• The BNSS2 Bill aims to introduce several amendments to the existing CrPC framework, particularly addressing aspects related to trials, investigations, and other procedural matters.
  • The proposed changes reflect an effort to modernize and enhance the efficiency of the criminal justice system in alignment with contemporary needs.

Key Features of the Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS2) Bill, 2023:

• Detention of Undertrials: According to the BNSS2, the provision of releasing an accused on a personal bond after spending half of the maximum imprisonment period does not apply to offences punishable by life imprisonment or if proceedings are pending in more than one offence.
• Medical Examination: Unlike the CrPC, which restricts medical examinations to certain cases, the BNSS2 expands the scope, allowing any police officer to request an examination, broadening accessibility.
• Forensic Investigation: The BNSS2 introduces a mandatory forensic investigation for offences carrying a minimum sentence of seven years.
  • Forensic experts are empowered to collect evidence on-site, documented through mobile phones or electronic devices.
  • In the absence of local facilities, states can utilize facilities in other states.
• Signatures and Finger Impressions: While the CrPC empowers magistrates to order specimen signatures or handwriting, the BNSS2 extends this to include finger impressions and voice samples.
  • Notably, these samples can be collected from individuals not yet arrested.
• Timelines for Procedures: The BNSS2 establishes clear timelines for various procedures.
  • For instance, medical practitioners examining rape victims must submit their reports to the investigating officer within seven days, ensuring a more expedited legal process.

Bharatiya Sakshya (Second) Bill, 2023:

• Admissibility of electronic evidence: Section 61 of the original Bill allowed the admissibility of electronic evidence by underscoring that an electronic record shall have the same legal effect as a paper record.
  • However, there was no requirement for a certificate under section 63 (corresponding to the requirement of a certificate under section 65B of the Indian Evidence Act).
  • This provision has now been revised to state that the admissibility of an electronic record is subject to section 63.

Criticism of the Bill:

Experts have flagged that the three revised Bills present a missed opportunity to rectify extensive overcriminalisation and wider police powers that aggravate state control.

• The provision of the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, which permits police custody beyond the initial 15 days of arrest endangers civil liberties.
  • The massive expansion of the possible duration of police custody in the BNSS strikes at the very heart of civil liberties protection.
• The BNSS expands the maximum limit of police custody under general criminal law from 15 days to either 60 days or 90 days (depending on the nature of the offence).
  • Under current law, police custody is limited to the first 15 days of arrest.
• The expansion under the proposed BNSS heightens the risk of exposure to police excesses.
• Given widely acknowledged concerns about the safety of arrested persons in police custody, and the heightened risk of coerced and fabricated evidence after prolonged detention, this provision of the BNSS is a shocking expansion of police powers.