New Criminal Justice Bills Will Indianise Judicial System, End Colonial Legacy

The need to reform the Indian legal system has been felt for a long time. Though there have been some piecemeal reforms in the post-Independence period, the introduction of drafts of three bills by Union Home Minister Amit Shah during the 2023 Monsoon Session of Parliament is going to transform the entire criminal justice system which India inherited from the British era. 

The central government introduced the drafts of Bharatiya Nyaya Sanhita, 2023; Bharatiya Nagarik Suraksha Sanhita, 2023; and the Bharatiya Sakshya Bill, 2023, which are poised to replace the Indian Penal Code, 1860; Code of Criminal Procedure, 1898 (CrPC); and Indian Evidence Act (IEA), 1872 respectively. These bills are touted as the first steps to free the Indian legal system from the colonial hangover as they have been drafted in consonance with the Indian thought process.

These drafts were arrived at through an extensive consultation process that included views and responses from 22 law universities, five judicial academics as well as from the Supreme Court, 16 High courts, and 152 MPs, and 270 MLAs. 

While some sections of the three older acts have been retained, some have been changed, new ones have been added, and some have been repealed completely. The proposed Bharatiya Nyaya Sanhita Bill will have 356 sections instead of the 511 sections of the IPC. The Bharatiya Nagarik Suraksha Sanhita Bill, which will replace CrPC, will now have 533 sections instead of the earlier 484, and the Bharatiya Sakshya Bill will now have 170 sections instead of the earlier 167 of the IEA. With a total of 313 changes, the major objectives and aims of the three proposed laws are to protect the rights given to Indian citizens by the Constitution and to give justice instead of punishment and to give primacy to citizens instead of government by facilitating speedy justice. Though there are a lot of changes, some of the major highlights of the bills are:

• The purpose of the bills is exclusively to increase the percentage of conviction rates. The rule of law can only prevail when the criminals are taken to task. The police would not have any scope to hold up the investigation for an indefinite time.
  
  The charge sheet will be filed within 90 days and the investigation procedure will have to be done within 180 days. Once the arguments are completed, the court will have to deliver a verdict within 30 days which will be made available online within seven days.
  
  The scope of summary trials has been increased in petty cases. Once the bills come into effect, crimes punishable by up to three years will be included in summary trial. In case the accused are public servants, the government will have to decide on permission within 120 days for trial. Failure to do so will be deemed as permission for conducting their trial.
   
• The visit of the forensic team is being made compulsory on the crime scene. Also, videography has been made compulsory at the time of search and seizure which will be part of the case. Without such recording by the police, no charge sheet will be considered valid. A target of setting up three mobile Forensic Science Laboratory (FSLs) in every district has been taken up along with the training of 33,000 forensic scientists and experts every year.
   
• A provision for zero FIR has been introduced for the first time since Independence. Now citizens will be able to lodge complaints outside of their police station area. Also, a provision for e-FIR has been added for the first time. These changes are going to expedite the process of seeking justice. Now the police are required to update the family of the person who has been arrested — both online and in person.
   
• Trial in absentia: A historic provision has been introduced under which if a person who is wilfully absent from court proceedings, and has been declared a fugitive by sessions court (such as Dawood Ibrahim or Mehul Choksi), they will be subject to trial and sentences in their absence.
   
• Sexual crimes: Under the new penal code, sex on the pretext of the false promise of marriage, employment, promotion, and false identity, has been made a crime. Twenty years of imprisonment or life imprisonment in all cases of gang rape has been introduced. Provision of the death sentence in the case of rape of a minor has been introduced. Under the new laws, it has been made mandatory for the police to give the status of the complaint in 90 days and thereafter every 15 days to the complainant in cases of sexual harassment.
   
• Mob lynching and fake news: Under the new laws, the crime of mob lynching (with each member) will face anywhere between seven years of imprisonment to the death penalty. Spreading fake news with the potential to jeopardise sovereignty and internal security has been made a criminal offence with a maximum of three years of imprisonment.
   
• Terrorism and sedition: Under the new laws, ‘terrorism’ has been defined for the first time as any act threatening the unity, integrity, and security of India and any act to intimidate the general public or to disturb public order by using a range of lethal weapons and any other life-endangering substance.
  
  The government has also announced the repeal of controversial section on sedition which has been replaced by a section that has provisions for punishment for an act of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity and integrity of India.
   
• Organised crime: A new penal section has been added related to organised crime. This section penalises any unlawful activity by a member of a crime syndicate or on behalf of such syndicate by use of violence, coercion or other lawful means to accrue direct or indirect material and financial gains. Provision for attachment of property of known offenders has also been added.

Apart from these major highlights, the bills have also introduced provisions for community service as punishment for petty crimes like mobile and chain-snatching and have made bribe for vote during elections a punishable offence. Also, fines have either been increased or added to many offences as a part of the punishment and the definition of ‘document’ has been extended to include electronic or digital records, emails, server logs, computers, smartphones, laptops, SMS, websites, locational evidence, emails, and messages on devices.

Impact on the Indian judicial system

With the number of backlog cases in the Indian courts crossing 6 lakhs, the legal reforms that have been initiated by the Bharatiya Janata Party (BJP)-led government will have a positive impact because of their time-bound nature as well as because of the extension of the scope of summary trials which has the potential to end 40 per cent cases pending in sessions courts. 

The laws have the potential to clean the currently overburdened and choked criminal justice system. However, any change comes with certain challenges. The primary challenge that will emerge after the bills become law will be in the area of dealing with cases that are already pending. It will be a challenging task as to how they will be dealt with in the context of revamped criminal code, evidence act, and penal code with will become a challenging task.

(Bijayani Mishra is Assistant Professor, Department of Sociology, Maitreyi College, University of Delhi. Harshvardhan is a Doctoral Candidate at the Centre for the Study of Social Systems, Jawaharlal Nehru University. Views expressed are personal.)