New Criminal Laws - A Critical Analysis 

The New Criminal Laws replaces 160 years old laws

Bharatiya Nyaya Sanhita replaces Indian Penal Code, 1860

Bharatiya Nagarik Suraksha Sanhita replaces Code of Criminal Procedure, 1973

Bharatiya Sakshya Adhiniyam replaces Indian Evidence Act, 1872

The new laws will come into effect from July 1st 2024

The idea rolled on with the appointment of Committee of Reforms in Criminal Laws under the chairmanship of Prof.Ranbir Singh in 2020

The bills were first introduced in the Parliament in August 2023

Revised bills were introduced in the Parliament on 12th December 2023

How much is the change - Actual effective change

When we say the new laws are brought in then it is deemed to be understood that major part of the old laws should have been overhauled. But if we see the change in percentage it is very low,

the change in IPC is 2.5%

in Indian Evidence Act there is NO changes but for Electronic Evidence

in CrPC it is 2%

Changes all put together is not more than 5%. This means the majority of the sections of the old laws have been repeated but for few of them. Going by this data can the view of the critics that the new criminal laws are nothing but 'old wine in a new bottle', considered to be true?

Before jumping into conclusion/ form an opinion on it, let's analyze more information starting with the Comparison then Purpose, gist of the Report of Parliamentary Standing Committee on New criminal laws, positives, the Critical view of the laws, and in conclusion what should have been done instead.

Comparison of New Laws with the Old in a tabular form

 

Indian Penal Code vis-a-vis Bharatiya Nyaya Sanhita, 2023

	Indian Penal Code, 1860	Bharatiya Nyaya Sanhita, 2023
Provisions	511	358
Additions	-	31
Deletions	-	19
Modification	-	Community Services for 6 Offences  Minimum Punishment for 25 Of Offences
Imprisonment	-	Increased for 41 Sections
Penalty	-	Hiked in 82 Sections

Criminal Procedure Code, 1973 vis-a-vis Bharatiya Nagarik Suraksha Sanhita, 2023

	Criminal Procedure Code, 1973	Bharatiya Nagarik Suraksha Sanhita, 2023
Provisions	484	531
Additions	-	9 Sections &  39 Sub-Sections
Deletions	-	14
Modification	-	177
Explanations	-	44
Timelines	-	35 Sections

Indian Evidence Act, 1872  vis-a-vis Bharatiya Sakshya Adhiniyam, 2023

	Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Provisions	167	170
Additions	-	2
Deletions	-	6
Modification	-	24

Suource: here

Purpose of bringing in the new Criminal Laws

1. To come over the Colonial hangover
2. To make criminal laws 'rehabilitation oriented' from that of 'punishment'. The Home Minister Amit Shah while introducing the bills in Lok Sabha on August 11, said "British era laws focused on punishment, while emphasis of the new laws were in justice" 
3. To address the issue of Torture
4. For the speedy disposal of the cases

Parliamentary Committee Report on the New Criminal Laws

In a Representative Democratic political set up, the views of every Member of Parliament holds value. To take care of this very important tenet, there is system of referring the bills, before passing, to the Parliamentary committee whose members shall be from all the parties irrespective of the majority. Like wise a committee of 31 members was setup to study and recommend the new criminal laws. It becomes very relevant and important to discuss the committees recommendations here,

1. Gender-neutrality adultery law. To re-criminalize adultery which was decriminalized by the 5 judge bench of the Supreme Court in 2018. Earlier it was only male partner who was punished for a jail term of 5 years or fine or both. Wife was not punished. 
2. The Parliamentary Standing Committee favored punishment for non-consensual sex irrespective of gender
3. Retain Section 377 - Consensual homosexual act, punishable for life imprisonment or 10 years of jail.
4. Reduced sentence for deterring public servants, except in severe cases. 
5. Community service as an alternative punishment for minor offenses. Also there shall be a comprehensive definition for 'minor offenses'
6. Lenient treatment for protestors facing charges under section 353, IPC - obstructing public servant from doing his duty as it was found that the clause was mostly used against protestors
7. Panel decides to stick to the Hindi names despite severe opposition from some MPs

Meanwhile the opposition has tabled the dissent note with 50 objections like,

1. New laws named in Hindi
2. Highlighted the need to abolish the death penalty

Positives

1. Recognized the Rights of Victims. For instance, victims can obtain documents that the prosecution relies on. However participative rights are still limited, ex; having a counsel of their own, etc. The current position is, a victim can only have 'assist to Public Prosecutor' who can only assist the PP but cannot lead the trial
2. Conduct of Trial Electronically. Current position is it is not statutory procedure but relies upon the directives of the Supreme Court
3. Forensic Report is mandatory for the serious crimes attracting punishment of more than 7 years. Forensic report is the scientific investigation which is close to accurate, ex, Fingerprints 
4. Time limitation for trail. Under the present laws there is no limitation of time for a trial to be completed 
5. Recognition of Zero FIR for all crimes.  The Zero FIR allows victims to report a crime at any police station, regardless of jurisdiction, irrespective of where the incident occurred. The FIR is later transferred to the appropriate police station having jurisdiction over the case.  
6. Recognition/introduction of 'Community services' as punishment for crimes of not so serious in nature
7. Adultery, Homosexual sex and Suicide will no longer be considered a crime under new laws
8. Transgender is added in the Definition of 'Gender'
9. Electronic Evidence:

• Recognition of Electronic Evidence as primary evidence. 
• It enables the electronic presentation of even 'oral evidence', for instance oral witnesses can testify remotely though electronic mode.
• The Digital records hold the same evidentiary value as traditional paper documents. Current position under the old laws is, by all means the electronic evidence held to be of the secondary evidence in nature.

Critical view

1. Danger of turning into a Police State

The new laws in more than one way have broadened the powers of police and entrusted a disproportionate powers on them

i)  The new law says, Police officer shall have the  power to detain any citizen for 24hrs in case of disobeying him; what is 'disobeying' is not defined. 'Power of Arrest' is something different from 'Need for Arrest'. If the thin line between these two is blurred then we see arbitrariness. If in the present system the power of arrest, a 'huge reservoir' of power is daily abused by the police then imagine what would be the abuse in the expanded powers created by the new laws.

ii) Filing of FIR - Recognition to Preliminary Enquiry

Filing of an FIR in cases of cognizable offences was mandatory, thanks to Lalith Kumari Judgment, which said there is no need of preliminary enquiry to be done by the police officer in case of receiving an information of a crime of cognizable nature (serious crimes as categorized under CrPC). 

Now according to the provisions of the new criminal laws in cases of cognizable offences punishable for 3 years or more but less than 7 years, there is NO Compulsion of filing FIR immediately but to do a preliminary enquiry by the concerned police officer - overturning Lalith Kumari Judgment.

Practically it will empower the police for abuse of the process as they will investigate or not investigate any crime falling under the above category according to their whims and fancies and thereby refusing to file the FIR per se.

  

iii) Handcuffing 

Police, under the new criminal laws can handcuff any accused. Hitherto the police would have to take prior permission from the magistrate. The police had to put the reasons in writing as to what are the exigencies that demand the hndcuffing of the accused, then get an approval of the same from the magistrate. This new provision is just the reversal of the guidelines mentioned in landmark cases,

Sunil Batra v. Delhi Administration , 1978 4SCC 494; 

Prem Shankar Shukla v. Delhi Administration, 1980 3 SCC 526 and 

Citizens For Democracy v. State of Assam And Ors, 1995

This is in direct violation of Article 14, 15 and 21 of the Indian Constitution

iv) Enquiry in cases of Custodial Torture

The new laws replaced the 'Judicial Magistrate' Enquiry in cases of Custodial Torture to 'Magistrate'. There was an amendment brought in 2005 for mandating the enquiry by a Judicial Magistrate in cases of Custodial Torture. It was intended to hold the police and the administration accountable by independent enquiry. Now placing this power of enquiry in the hands of Magistrate, the same administration which may have involved in the torture would violate the Principles o Natural Justice.  

v) Police Custody extended beyond 15 days. 

Hitherto the police would have to take the accused in their custody for the purpose of investigation within the first 15 days of the arrest. The purpose of this limitation was to avoid the custodial torture, police abuse. It is an established legal jurisprudence that an independent collection of evidence has better evidentiary value than a confession in custody. 

But according to new law Police can take custody of an accused beyond this 15 days, anytime up till 60 and 90 days. It is a big leap in reverse gear overturning the DK Basu, Arnesh Kumar judgments.

vi) When the offence involves different provisions from different Acts, the Police officer is vested the power to decide to chose which act and provision that is to be applied

2. Sedition-plus

Sedition, a draconian colonial law was intended to scuttle the voice of the people who speak against the colonial British Empire. Unfortunately we missed an opportunity to do away with this law after independence. And now after the Supreme Court keeping it in abeyance the new laws have preferred to continue but with a different name called Treason. Going by the relevant provisions of the new law, we can say it has become only a Sedition-plus

3. Attempt to establish Theocracy - Sec-155(a), Mass drill with arms deleted

4. Offences against the public officials

i) Sections -196-203, Chapter 12 of the new law states that the offences against the public officials. In this the accountability to prove the allegation is on the citizen but not on the government official to disprove.

ii) Under the present law an FIR can be registered against the public servant. Any kind of protection is available only at the stage of magistrate taking cognizance i.e. magistrate shall not take cognizance until a prior sanction of his superior officer.

Now under the new laws protection to the public officials is provided at the stage of registering an FIR wherein it can be registered by the Magistrate only on the prior sanction of his superior officer. However an FIR can be still be registered without the sanction of his superior officer if it is done at the police station.

5) Bail provision is made more stringent

An accused facing the trail of an offence against which he has already served half of the sentence is to be given bail which is also called as a Deemed bail - a guideline of the Supreme Court. Punishment of Death was exempted from this deemed-bail. Now under the new law Lifetime imprisonment is also excluded.

6. Forensic - Scientific Investigation

Forensic report for the offenses attracting more than 7years of imprisonment is now mandatory. Also it is extended from 

• Signatures and Handwriting to the Finger Prints and Voice
• The accused to others

Though this aspect on face of it seems to be a positive of the new law, critiques say that the Judge cant examine the genuineness of the expert report. It has reduced the scope of Judicial Scrutiny on Forensic Evidence

7. Terrorism

Under the old laws any investigation relating to terrorism ex. UAPA, only a police officer of and above the rank of Superintendent of Police would investigate. Under the new law even a SHO (Station House Officer) can investigate the matters relating to such offences

8. Trial in Absentia

Where an accused is absconded or has not responded to an arrest warrant or summons, the trail shall be conducted in his absence. In case of a trail of multiple persons it will be treated as Joint Trial.

It is against the present position which didn't provide the trail in the absence of the accused. No ex-parte trail as we can see in the civil cases. All that a court can do is to proclaim the concerned absconding accused as a 'proclaimed offender' and keep him finding

9. Discharge Petition

The accused will be able to file the discharge petition only within the 60 days of framing of charges

10. Administrative Difficulties

Critiques like Senior Counsel Sanjay Hegde in his article has pointed out the lack of 'Litigation Impact Assessment' which may have indicated the practical challenges in terms of increase in litigation or the impact of the new laws on litigation.

He further pointed out absence of large scale consultancy with all the stake holders like judges, bar association, judicial academies on the likely impact of such large scale disruption.

Entrusting upon the shoulders of the executive machinery like police, judiciary and other institutions without giving proper training, corresponding infrastructural reforms and time to get adapted with new laws altogether would only be inviting problems for not only to the machinery but also to the common people. 

11. Why to renumber if old sections are retained?

When around 90% of the old sections are retained then why to renumber them only to add confusion and chaos which have been in usage for a century and a half. 

P.Chidamabaram in his dissent note in the joint parliamentary committee says "Hundreds of thousands of judges, lawyers, police officers and even the general public will be put to enormous trouble and inconvenience without any benefit at all. They will have to relearn the laws which will take years before the new provisions are used extensively."

12. Hindi Names

The names of the new laws to be named in Hindi attracted severe criticism. With so large diversity in languages the country speaks, it would be against this fundamental principle of Unity in Diversity to name the news laws in Hindi. It is also considered as imposition of Hindi on non-Hindi speaking states. 

It is to note that a judge of Madras High Court Justice N Anand Venkatesh has said that "I will continue using the original English names of key criminal laws even after they are replaced with Hindi titles because I don't know that language"

Conclusion

What is Colonial ?

Is it because the Britishers have passed it or the substance of it - which governed the relationship between the government and citizens. The intent of the new criminal laws seems to be not to reform the criminals, as it claimed to be, but to scuttle the voice of dissent and entrust more arbitrary powers to the police. Upon this the essence or substance of the new laws is we can say 'No Suraksha for Nagarik'. Here the citizen is the suspect.

Except the change in the name, substantive part of the colonial laws remains the same. 

The 4 stakeholders of the Criminal Justice System - Accused, Victim, Prosecution and Witness, none of whom will be benefitted with these new criminal laws

It will create more chaos in interpretation and appeal.

It overloads the courts with more and more appeals

The new laws in fact could not stand on its purpose which is to provide restorative justice focused on rehabilitation and victim centric. Critics say it is actually the other way around where in the laws are more retributive, deterrent making a tilt towards Police State.

One should also keep in mind that all change is not progress

What should have been done to achieve the said purposes

1. Increasing the number of courts

2. Recruiting more judges, public prosecutors and other staff proportionate to the population

3. Developing the relevant infrastructure for instance increasing the number of forensic labs

4. Rapidly expanding already implemented technological infrastructure like computerization, etc. It has to be coupled with one more step of reducing the digital divide - expanding the internet services to rural India.

5. Amend the required sections in respective Acts. For instance Sec-207, CrPC should be amended such that accused should be given access to the exculpatory documents along with the details of incriminating material

6. Bring in Police Reforms as recommended by different committees like

• National Police Commission, 1977
• Ribeiro Committee, 1998
• Padmanabhaih Committee on Police reforms, 2000
• Malimath Committee on Criminal Justice System, 2000
• 7 Guidelines provided by the Supreme Court in Prakash Singh Judgment
• Mooshahary Review Committee, 2004
• Model Police Act, 2006 framed by a committee under Soli Sorabjee