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CRIMINAL LAW REFORM ACTS

CRIMINAL LAW REFORM ACTS

Why in the news CRIMINAL LAW REFORM ACTS?

The Indian President has granted assent to the three important laws to reform the nation’s criminal justice system in Criminal Law Reform Acts.

More on the news:

The three Acts include:

  • Bharatiya Nyaya Sanhita 2023 replacing the Indian Penal Code (IPC), 1860.
  • Bharatiya Nagarik Suraksha Sanhita 2023 replacing the Code of Criminal Procedure (CrPC), 1973.
  • Bharatiya Sakshya Adhiniyam 2023 replacing the Indian Evidence Act, 1872.

CRIMINAL LAW REFORM ACTS

Need for reforms in criminal laws:

  • Modernizing the criminal justice system: Older than India’s independence, the IPC, IEA, and a sizable portion of the CrPC do not accurately reflect current standards of criminal jurisprudence. A dynamic and flexible criminal justice system is necessary to keep up with societal changes. For instance, using modern technologies to collect, store, and process evidence.
  • Handling a big backlog and prompt justice: Due to resource constraints and complicated legal processes, there are about 4.7 crore cases pending in different courts, and many under-trials are lingering in jails.
  • Raising conviction rates: Inadequate forensic investigations, poor policing, and the influence of influential people on law enforcement are some of the inefficiencies in the criminal justice system that lead to low conviction rates.
  • Including suggestions from a number of high-level committees: these comprise the Law Commission’s, the Malimath Committee’s (2003), and the Justice Verma Committee’s (2013) recommendations for issues pertaining to arrests, confessions, bail, the death sentence, and other relevant topics.

BHARATIYA NYAYA SANHITA 2023 (BNS)

Bharatiya Nyaya Sanhita 2023 replaces Indian Penal Code (IPC), 1860, the principal law on criminal offences in India.

Background

  • Before the IPC was enacts in 1860, Indian criminal law was compose of a wide range of complicate parliamentary charters and acts, East India Company regulations, customary law, Muslim law, Hindu law, and so forth. Thomas Babington Macaulay establish the First Law Commission in 1834 with the goal of “modernizing laws and the colonial governance of civil society.” It created a draft of the Criminal Code in 1837, basing it entirely on British common law and ignoring any Indian laws that were already in place.
  • Impact of 1857 Rebellion: The IPC’s formation was postponed for years while it underwent numerous amendments. But after the Rebellion of 1857 and the British Crown’s direct takeover in 1858, the IPC was eventually passed in 1860 and went into effect in 1862.
  • After the IPC 1860 was enacted: The IPC has undergone numerous amendments over time, adding new offenses, changing the severity of existing ones, and altering the length of sentence. The IPC has been suggested to be amended on a number of occasions by Law Commission reports, covering topics such as crimes against women, adulteration of food, the death sentence, etc.

Important clauses in the Bharatiya Nyaya Sanhita 2023:

  • Community service: One of the suggested penalties for minor infractions is the provision of community service, which would apply for the first time.
  • Sexual crimes against women: It raises the age requirement from 16 to 18 years old for gang rape victims to be considered majors. It also makes having sexual intercourse with a woman under false pretenses or by dishonest means illegal.
  • Sedition: The offence of sedition is eliminated. Rather, it penalizes the following: Inciting or seeking to incite armed insurrection, subversive activity, or secession Fostering separatist sentiments or putting India’s unity, sovereignty, or integrity in jeopardy. These offenses could include using money, exchanging words or signals, or communicating electronically.
  • Terrorism: The BNS defines terrorism as an act that intends to: threaten the unity, integrity, and security of the country; intimidate the general public, or disturb public order.
  • Organised crime includes offences such as kidnapping, extortion, contract killing, land grabbing, financial scams, and cyber crime carried out on behalf of a crime syndicate.
  • Mob lynching: The BNS adds murder or grievous hurt by five or more people on specified grounds, as an offence.  These grounds include race, caste, sex, language, or personal belief.  The punishment for such murder is a minimum of seven years imprisonment to life imprisonment or death.
  • Rulings of the Supreme Court: The BNS conforms to some decisions of the Supreme Court.  These include omitting adultery as an offence and adding life imprisonment as one of the penalties (in addition to the death penalty) for murder or attempt to murder by a life convict.

Criticism:

  • Criminal Responsibility Age Discrepancy: The age of criminal responsibility is still seven years old, yet it may be raised to twelve years old depending on how mature the accused is. This may conflict with international convention recommendations.
  • Differences in the Definitions of Child Offenses: While under 18 is considered a child according to the BNS, there are different age thresholds for different crimes against children. For example, disparities exist in the age requirements for crimes such as rape and gangrape.
  • Sedition Provisions and Sovereignty Issues: Although sedition is no longer a crime under the BNS, some features of it may still be present in relation to situations where India’s sovereignty, unity, or integrity are at risk.
  • Retention of IPC Provisions on Sexual Harassment and Rape: The IPC’s provisions on sexual harassment and rape are preserved under the BNS. It doesn’t consider the Justice Verma Committee’s (2013) recommendations, which include making marital rape a crime and gender neutralizing the definition of rape.

BHARATIYA NAGARIK SURAKSHA SANHITA 2023

The Bharatiya Nagarik Suraksha Sanhita 2023 replaces the Criminal Procedure Code, 1973 (CrPC), which provided for the procedure for arrest, prosecution, and bail under various Acts, including the IPC 1860.

Background

During British administration, the CrPC was first passed in 1861 and was then replaced by new codes that were passed in 1872 and 1882. It had been amended multiple times, most notably in 1898, 1923, and 1955. The Law Commission of India suggested a major rewrite of the code in its 41st report, which sparked the development of CrPC 1973.

Important clauses in the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS)
  • Undertrial detention: First-time offenders who have served out one-third of the maximum sentence allotted for their offense are eligible for bond release. The accused will be released on bail by the court after serving half of the maximum sentence allotted for the offense. This excludes individuals who are the subject of ongoing legal processes in more than one offense, as well as crimes carrying the death penalty or life in prison.
  • Medical examination: In some situations, such as rape charges, any police officer may ask that the accused undergo a medical examination.
  • Forensic inquiry is required for offenses carrying a minimum sentence of seven years in prison. A state shall use forensics facilities located in another state if it lacks its own.
  • Signatures and finger impressions: A magistrate may require anyone, detained or not, to produce sample voice recordings, handwriting, signatures, and finger impressions.
  • Procedure’s timeline: It specifies deadlines for different processes. For example, providing the investigating officer with medical findings, rendering a decision, updating the victim on the status of the inquiry, and filing charges.
Criticism
  • Property Attachment from criminal Proceeds and Lack of Safeguards: The ability to seize property from criminal proceeds lacks the safeguards given by the Prevention of Money Laundering Act, raising concerns about potential abuse or a lack of control.
  • Restrictions on Bail for Multiple Charges: While the CrPC allows bail for an accused detained for half the maximum imprisonment for an offence, The BNSS refuses this provision to those who are accused of multiple offences. This restriction may restrict opportunities for bail, as it is common in situations involving many sections.
  • Handcuff Use and Conflicting Supreme Court Orders: The BNSS allows the use of handcuffs in a number of situations, including organized crime, which runs counter to Supreme Court orders.
  • Integration of Trial Procedure and Public Order Maintenance: The CrPC’s regulations pertaining to maintaining public order are still included in the BNSS. This begs the question of whether trial processes and maintaining public order should be governed by different laws or under the same one.

BHARATIYA SAKSHYA ADHINIYAM 2023 (BSA)

The Indian Evidence Act, 1872 (IEA), which controlled the admissibility of evidence in Indian courts in all civil and criminal proceedings, was replaced by the Bharatiya Sakshya Adhiniyam 2023.

Background

The purpose of the 1872 enactment of the Evidence Act was to combine the various laws pertaining to evidence so that the court may make decisions and issue verdicts based on it. The IEA has been amended multiple times over the years; the most recent amendments were made in 2000 to allow electronic records to be admitted as secondary evidence and in 2013 to include provisions pertaining to consent in rape cases. The main problem is that the IEA neglected to take into account the advancements in technology that the nation has experienced over the last few decades.

Important clauses in the Bharatiya Sakshya Adhiniyam 2023
  • Admissibility of digital or electronic records as evidence: This clause stipulates that these types of records shall be treated legally equal to paper records. It broadens the definition of electronic records to encompass data kept in semiconductor memory, emails, server logs, and any other type of communication device, including laptops and cellphones.
  • Documentary evidence: In addition to written texts, maps, and cartoons, it states that electronic records will also be regarded as documentation.
  • Oral evidence: Testimonies given in court by witnesses on a fact under investigation are considered oral evidence. Oral evidence may be presented electronically under the Act.
  • Joint trials: When multiple people are tried for the same offense, it is referred to as a “joint trial.” The Act further states that a multi-person trial will be handled as a joint trial in cases where one of the accused has escaped or refused to appear in court after receiving an arrest order.
Criticism
  • Admissibility of Information from Accused in Custody: If the information was gathered while the accused was under police custody, it may be admitted under the BSA and not otherwise. The Law Commission suggested doing away with this differentiation.
  • Suggestions from the Unincorporated Law Commission: Despite their importance, a number of Law Commission recommendations—such as assuming police liability for injuries suffered by an accused while in police custody—have not been incorporated into the BSA.
  • Electronic Record Tampering: The Supreme Court has acknowledged the possibility of electronic record tampering. Even while the BSA permits such records to be admitted, there are no protections in place to stop them from being contaminated or tampered with while the investigation is underway.

Conclusion

The three laws offer a chance to respect constitutional ideals in criminal procedures and genuinely decolonize the criminal justice system. A structure for routine observation and reexamination of newly enacted legislation will also significantly contribute to the modernization of the criminal justice system.

Source: PRS