India gives itself New Criminal Laws w.e.f 01st July 2024 - Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam

For decades, the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act (IEA) served as the bedrock of India’s legal system, rooted in the British colonial era.

While, the IPC, CrPC, and IEA govern the overall criminal justice system, over the years various special laws have been enacted to penalise certain offences and provide for separate procedures.  

For instance, the Unlawful Activities (Prevention) Act, 1967 deals with terrorist activities and unlawful activities of individuals and associations.  The Protection of Children from Sexual Offences Act, 2012 protects children from sexual assault and pornography.  The Food Safety and Standards Act, 2006 is a regulatory law that penalises offences including food adulteration.  Various states have also enacted laws to control organised crime.

On August 11, 2023, three Bills were introduced in Lok Sabha to replace the IPC, CrPC and IEA, some of which were older than independent India. 

In February 2024, the Ministry of Home Affairs | Government of India (mha.gov.in) issued three gazette notifications, informing that the three new criminal laws will be effective July 1, 2024. 

1. Bharatiya Nyaya Sanhita (BNS), 2023, will replace the Indian Penal Code of 1860.  
2. Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, will replace CrPC 0f 1973.
3. Bharatiya Sakshya Adhiniyam (BSA), 2023, for the Indian Evidence Act of 1872.

The new criminal laws seek to move towards a reformative justice system by providing for community service instead of imprisonment, but will retain the current punitive character of the criminal justice system. 

For instance, theft is punishable with rigorous imprisonment between a year and five years.  The BNS adds that community service may also be imposed as punishment for theft.  This is provided for cases where: (i) the value of the stolen property is less than Rs 5,000 (ii) the person is a first-time offender, and (iii) the stolen property is returned or its value is restored.  However, theft remains a non-bailable offence.

The new criminal laws will bring in a modern justice system, incorporating provisions such as Zero FIR, online registration of police complaints, summonses through electronic modes such as SMS and mandatory videography of crime scenes for all heinous crimes, and also the video recording of all search and seizure have been made mandatory.

Here is a brief description of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA):

1. Bharatiya Nyaya Sanhita (BNS):

   • The BNS replaces the Indian Penal Code (IPC), 1860. 
   • It is the primary criminal code of India, defining offenses and their punishments.
   • The BNS covers a wide range of criminal acts, including theft, assault, fraud, and more.
   • It aims to modernize and streamline criminal laws, addressing gaps and inconsistencies present in the IPC.
   • Full document is available at 278LS(content).p65 (prsindia.org)

2. Bharatiya Nagrik Suraksha Sanhita (BNSS):

   • The BNSS replaces the Criminal Procedure Code (CrPC), 1973. 
   • It governs the procedures for investigation, trial, and appeals in criminal cases.
   • It outlines the steps involved in criminal proceedings, such as arrest, bail, trial, and sentencing.
   • The BNSS aims to enhance efficiency, transparency, and fairness in the criminal justice system.
   • Full document is available at 277LS Pre..pmd (prsindia.org)

3. Bharatiya Sakshya Adhiniyam (BSA):

   • The BSA replaces the Indian Evidence Act, 1872. 
   • It deals with the admissibility of evidence in court.
   • It defines rules regarding the presentation and evaluation of evidence during trials.
   • The BSA aims to simplify evidence-related procedures and promote consistency.
   • Incorporates advanced verification methods for electronic evidence, such as hash value verification, which is a global best practice to ensure the integrity of data. 
   • However, unlike the EU’s e-Evidence package, which facilitates cross-border access to electronic evidence for law enforcement, the BSA, 2023 does not explicitly address international cooperation or cross-jurisdictional issues in electronic evidence collection.
   • BSA does not fully integrate some of the stringent safeguards recommended by international bodies like INTERPOL, which emphasizes the importance of maintaining the integrity and admissibility of electronic evidence through standardized forensic procedures.
   • For the full document click here India Code: Bharatiya Sakshya Adhiniyam, 2023

The BNS provisions codify offences linked to mob lynching and hate-crime murders, for cases when a mob of five or more individuals commits murder based on factors such as race, caste, community, or personal belief.  The provision has punishment that extends from life imprisonment to death.

The new criminal law code makes some crucial changes, and for the first time, bring terrorism, corruption and organised crime under the ambit of ordinary criminal law. Sedition is no longer an offence.  Instead, there is a new offence for acts endangering the sovereignty, unity and integrity of India. 

Organised crime as an offence will include crimes such as kidnapping, extortion and cyber-crime committed on behalf of a crime syndicate.  Petty organised crime is also an offence now. 

Organised crime: Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime.

Murder by a group of five or more persons on grounds of certain identity markers such as caste, language or personal belief will be an offence with penalty of seven years to life imprisonment or death. 

BNSS replacing the CrPC of 1973 brings far-reaching changes in the procedural law. The new law mandates forensic investigation for offences punishable with at least seven years of imprisonment. It prescribes timelines for various procedures. For instance, it requires medical practitioners who examine rape victims to submit their reports to the investigating officer within seven days. Other specified timelines include: (i) giving judgment within 30 days of completion of arguments (extendable up to 60 days), (ii) informing the victim of progress of investigation within 90 days, and (iii) framing of charges by a sessions court within 60 days from the first hearing on such charges.

Such changes are part of a broader effort to decolonize and modernize India’s legal framework, making it more relatable and accessible to the general populace.

eCourts Phase III for India - Judiciary

Ease of justice is equally important as ease of living. Denial of ‘timely justice’ amounts to denial of ‘justice’ itself: Timely disposal of cases is essential to maintain rule of law and provide access to justice. 

Speedy trial is a part of right to life and liberty guaranteed under Article 21 of the Constitution.

Erodes social infrastructure: a weak judiciary has a negative effect on social development

Affects human rights: Overcrowding of the prisons, already infrastructure deficient, in some cases beyond 150% of the capacity, results in “violation of human rights”.

Affects the economy of the country as it was estimated that judicial delays cost India around 1.5% of its Gross Domestic Product annually.

The digital transformation of India’s judiciary to ensure accessible and efficient legal proceedings is imperative to address the cncerns plaguing the justice system in India. The implementation of the eCourts Mission Mode Project, as part of the National eGovernance Plan, stands as a testament to the government’s commitment towards modernizing the judicial system. 

 As part of the National eGovernance Plan, the e-Courts Project is under implementation since 2007 for ICT enablement of the Indian Judiciary the Phase II of which has concluded in 2023. Phase III of the e-Courts Project in India is rooted in philosophy of “access and inclusion”.

Taking the gains of Phase-I and Phase-II to the next level, the e-Courts Phase-III aims to usher in a regime of maximum ease of justice by moving towards digital, online and paperless courts through digitization of the entire court records including legacy records and by bringing in universalization of e-Filing/ e-Payments through saturation of all court complexes with e-Sewa Kendras. It will put in place intelligent smart systems enabling data-based decision making for judges and registries while scheduling or prioritizing cases.

The Centrally Sponsored Scheme of eCourts Phase III is being implemented under the joint partnership of Department of Justice, Ministry of Law & Justice, Government of India and eCommittee, Supreme Court of India, in a decentralized manner through the respective High Courts to develop a judicial system that would promote ease of justice by making the system more accessible, affordable, reliable, predictable, and transparent for all stakeholders.

Expected outcomes of the eCourts Phase III, are as follows:

• Citizens who do not have access to technology can access the judicial services from eSewa Kendras, thus bridging the digital divide.

• Digitization of court records lays the foundation for all other digital services in the project. It enables processes to become more environmental friendly by minimizing paper-based filings and reducing the physical movement of documents.

• Virtual participation in the court proceedings thus reducing costs associated with court proceedings, such as travel expenses for witnesses, judges, and other stakeholders.

• Payment of court fees, fines and penalties from anywhere, anytime.

• Expansion of eFiling for reducing the time and effort required to file documents. Thereby minimizing human errors as documents are automatically checked and also prevent further creation of paper based records.

• Use of latest technologies like Al and its subsets Machine Learning (ML), Optical Character Recognition (OCR), Natural Language Processing (NLP) to provide a smoother user experience by building a “smart” ecosystem. Registries will have less data entry and minimal file scrutiny facilitating better decision-making and policy planning. It envisages smart scheduling, intelligent system that enables data-based decision making for judges and registries, allows for greater predictability and optimisation of the capacity of judges and lawyers.

• Expansion of virtual courts beyond the adjudication of traffic violation cases, thereby eliminating the presence of litigant or lawyer in the court.

• Enhanced accuracy and transparency in court proceedings

• Emphasis on automated delivery of court summons by further expanding the NSTEP (National Serving and Tracking of Electronic Processes), hence drastically reducing the delays in trials.

• Use of emerging technologies in court processes will make them more efficient and effective, hence contributing significantly towards the reduction of pendency cases.

Source - www.pmindia.gov.in

The e-Committee of the Supreme Court has been overseeing the implementation of the e-Courts Project, conceptualized under the “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005”. 

Building over the advancements made in Phases I & II of the project, this document articulates the need to exponentially advance the digitization of courts by:
(a) simplifying procedures,
(b) creating a digital infrastructure, and the
(c) establishment of the right institutional and governance framework, such as technology offices at various levels to enable the judiciary to appropriately employ technology. 

It articulates key goals for putting in place the digital infrastructure and services for Phase III.

To read the Vision Document see here

Source: eCommitteeSCI