Thursday, October 31, 2024

Implications of amendments in the criminal laws

 In 2020, the Ministry of Home Affairs established a committee led by Prof.  Ranbir Singh, the former Vice Chancellor of the National Law University,  Delhi, to undertake a comprehensive review of the three codes of criminal law. All the members of the committee were male. They were all of similar social identity, professional background, and experience. The committee lacked diversity.

The amendments in three criminal laws-the Indian Penal Code (IPC), the Criminal Procedure Code, 1973 and the Evidence Act, 1872 has ignored the Pre-Legislative Consultation Policy of 2014. This policy was designed to ensure a fair and open process, mandates a thirty-day consultation period with the general public before a law can be approved by the Cabinet for introduction in Parliament. This consultation process, which involves sharing the draft with the public is required to be accompanied by (i) explanations for its enactment (ii) financial considerations, and (iii) an evaluation of the law's potential impact. There existed a clear absence of compelling rationale for why such a substantial reform was undertaken. There was lack of transparency. The claim about amendments being undertaken to be decolonise these three criminal laws is contradicted by the retention of certain provisions in these laws.

The changes that have been made to the existing law to enhance the coercive powers of State and its instrumentalities which allow  for the exercise of its powers at a hitherto unknown scale at which these powers can be exercised by the State. The laws in general have expanded the scope of police's power without introducing measures to keep its activities in check. From the data of the Government provided in the parliament, it has come to light that 4484 persons were victims of Custodial Deaths in India between 2020 -2022. The criminal laws seeks to enhance the time for which a person can be kept in police custody, there exists no protective measures to provide safety to the accused persons under police custody which is bound to adversely affect the safety of detainees.

19 Chapters and 358 Sections of Bharatiya Nyaya Sanhita (BNS) replaces 23 chapters and 511 Sections of Indian Penal Code (IPC)

In his note of dissent to the parliamentary report on Bharatiya Nyaya Sanhita (BNS), the new criminal law, N. R. Elango, Member of the Parliamentary Committee on Home Affairs wrote:"I find no new clause that imbibe Indian thought process and the Indian soul." It is noteworthy that 20 new offences have been added and 19 provisions in the repealed IPC have been dropped. The punishment of imprisonment has been increased for 33 offences, and fines have been increased for 83 offences. A mandatory minimum punishment has been introduced for 23 offences. 

In general, like IPC, BNS deals with offences against the body. It has retained the provisions of the IPC on murder, abetment of suicide, assault and causing grievous hurt. It has added new offences such as organised crime, terrorism, and murder or grievous hurt by a group on certain grounds.

Like IPC, it deals with sexual offences against women. It has retained the provisions of the IPC on rape, voyeurism, stalking and insulting the modesty of a woman. It has increased the threshold for the victim to be classified as a major, in the case of gang rape, from 16 to 18 years of age.

Like IPC, it deals with offences against property. It has retained the provisions of the IPC on theft, robbery, burglary and cheating. It has added new offences such as cybercrime and financial fraud. The fact is that it was already incorporated in the IPC through amendment. 

Like IPC, it deals with the offences against the state. The BNS creates an impression about removal of sedition as an offence. The fact is that it was been brought in as a new offence for acts endangering India's sovereignty, unity and integrity. 

Like IPC, it deals with offences against the public.

The BNS has 19 Chapters and 358 Sections. 174 Sections of IPC have been changed, 8 new Sections added and 22 Sections repealed.

Chapter 1 has Sections 1 to 3 which deal with the Preliminary including definitions (2) and General explanations (3).
Chapter 2  has Sections 4 to 13 which deal with Punishments.
Chapter 3  has Sections 14 to 44 which deal with General Exceptions (14-33) and the Right to Private Defence (34 to 44).
Chapter 4 has Sections 45 to 62 which deal with Abetment, Criminal Conspiracy and Attempt.

Chapter 5 has Sections 63 to 99 which deal with Offences against Women and Children including Sexual Offences (63 to 79), Criminal Force and Assault against Women (74 to 79), Offences relating to Marriage (80 to 92) and Causing of Miscarriage and including offences against child (93-99) like Exposure and abandonment of child under twelve years, of age, by parent or person having care of it Concealment of birth by secret disposal of dead body, Hiring, employing or engaging a child to commit an offence, Procuration of child, Kidnapping or abducting child under ten years of age with intent to steal from its person, Selling child for purposes of prostitution, Buying child for purposes of prostitution.

Chapter 6 has Sections 100 to 146 which deal with Offences Affecting the Human Body including Offences Affecting Life (100 to 113), Hurt (114 to 127), Criminal Force and Assault (128 to 136), Kidnapping, Abduction, Slavery and Forced Labour (137 to 146).

Chapter 7 has Sections 147 to 158 which deal with Offences Against the State.
Chapter 8 has Sections 159 to 168 which deal with Offences Relating to the Army, Navy and Air Force
Chapter 9 has Sections 169 to 177 which deal with Offences Relating to Elections
Chapter 10 has Sections 178 to 188 which deal with Offences Relating to Coins, Bank Notes, Currency Notes and Government Stamps
Chapter 11 has Sections 189 to 197 which deal with Offences Against the Public Tranquility
Chapter 12 has Sections 198 to 205 which deal with Offences by Or Relating to Public Servants
Chapter 13 has Sections 206 to 226 which deal with Contempt of Lawful Authority of Public Servants
Chapter 14 has Sections 227 to 269 which deal with False Evidence and Offences against Public Justice.
Chapter 15  has Sections 270 to 297 which deal with Offences affecting the Public Health, Safety, Convince, Decency and Morals
Chapter 16  has Sections 298 to 302 which deal with Offences Relating to Religion
Chapter 17 has Sections 303 to 334  which deal with Offences against Property including Theft (303), Extortion (304), Theft in a dwelling house, or means of transportation or place of worship (305), Theft by clerk or servant of property in possession of master(306), Theft after preparation made for causing death, hurt or restraint in order to committing of theft (307), Extortion (308), Robbery and Dacoity (309 to 313), Criminal Misappropriation of Property (314 and 315), Criminal Breach of Trust (316), Receiving of Stolen Property (317), Cheating (318 and 319), Fraudulent Deeds and Dispositions of Property (320 to 323), Mischief (324 to 328) and Criminal Trespass (329 to 334).
Chapter 18 has Sections 335 to 350 which deal with Offences Relating to Documents and to Property Marks.
Chapter 19 has Sections 351 to 358 which deal with Criminal Intimidation, Insult, Annoyance, Defamation, etc including Intimidation, Insult and Annoyance (349 to 353), Breach of peace (352) Public Mischief (353) Defamation (356), breach of contract to attend on and supply wants of the helpless person (357) and Repeal and Savings (358).

Section 358 states that IPC is repealed but savings pending proceedings shall continue under the repealed law

IPC has 23 chapters and 511 sections. The 119 page long IPC came into operation on January 1, 1862.

Chapter I of IPC has Sections 1 to 5 which provides introduction including definitions.
Chapter II has Sections 6 to 52 which deal with  General Explanations.
Chapter III has Sections 53 to 75 which deal with Punishments.
Chapter IV has Sections 76 to 106 which deal with General Exceptions and of the Right of Private Defence (Sections 96 to 106).
Chapter V has Sections 107 to 120  which deal with Abetment.
Chapter VA has Sections 120A to 120B which deal with Criminal Conspiracy.
Chapter VI  has Sections 121 to 130 which deal with Offences against the State.
Chapter VII has Sections 131 to 140  which deal with Offences relating to the Army, Navy and Air Force.
Chapter VIII  has Sections 141 to 160 which deal with Offences against the Public Tranquillity.
Chapter IX has Sections 161 to 171 which deal with Offences by or relating to Public Servants.
Chapter IXA has Sections 171A to 171 which deal with Offences Relating to Elections.
Chapter X has Sections 172 to 190 which deal with Contempt of Lawful Authority of Public Servants.
Chapter XI has Sections 191 to 229 which deal with False Evidence and Offences against Public Justice.
Chapter XII has Sections 230 to 263 which deal with Offences relating to coin and Government Stamps.
Chapter XIII has Sections 264 to 267 which deal with Offences relating to Weight and Measures.
Chapter XIV has Sections 268 to 294 which deal with Offences affecting the Public Health, Safety, Convenience, Decency and Morals.
Chapter XV has Sections 295 to 298 which deal with Offences relating to Religion.
Chapter XVI has Sections 299 to 377 which deal with Offences affecting the Human Body including Offences Affecting Life including murder, culpable homicide (Sections 299 to 311), Causing of Miscarriage, of Injuries to Unborn Children, of the Exposure of Infants, and of the Concealment of Births (Sections 312 to 318), Hurt (Sections 319 to 338), Wrongful Restraint and Wrongful Confinement (Sections 339 to 348), Criminal Force and Assault (Sections 349 to 358), Kidnapping, Abduction, Slavery and Forced Labour (Sections 359 to 374) and Sexual Offences including rape and Sodomy (Sections 375 to 377).
Chapter XVII has Sections 378 to 462 which deal with Offences Against Property including Theft (Sections 378 to 382), Extortion (Sections 383 to 389), Robbery and Dacoity (Sections 390 to 402),  Criminal Misappropriation of Property (Sections 403 to 404), Criminal Breach of Trust (Sections 405 to 409), Receiving of Stolen Property (Sections 410 to 414), Cheating (Section 415 to 420), Fraudulent Deeds and Disposition of Property (Sections 421 to 424), Mischief (Sections 425 to 440) and Criminal Trespass (Sections 441 to 462).
Chapter XVIII has Section 463 to 489 -E which deal with Offences relating to Documents and Property Marks including Offences relating to Documents (Section 463 to 477-A), Offences relating to Property and Other Marks (Sections 478 to 489) and Offences relating to Currency Notes and Bank Notes (Sections 489A to 489E).
Chapter XIX has Sections 490 to 492 which deal with Criminal Breach of Contracts of Service.
Chapter XX has Sections 493 to 498 which deal with Offences related to marriage.
Chapter XXA has Sections 498A which deal with Cruelty by Husband or Relatives of Husband.
Chapter XXI has Sections 499 to 502 which deal with Defamation.
Chapter XXII has Sections 503 to 510 which deal with Criminal intimidation, Insult and Annoyance. 

Chapter XXIII  has Section 511 which deals with Attempts to Commit Offences. 

A joint reading of the provisions of BNS and IPC reveals that both the laws are still in operation. The former is operational with regard to offences committed prior to July 1, 2024 and the latter with regard to offences committed after July 1, 2024. 

It is also evident that four Sections 499, 500, 501 and 502 for "defamation" under IPC have been clubbed under Section 356 of BNS. 

The the nine Sections 141, 142, 143, 144, 145, 150, 151, 157 and 158 of IPC for "Unlawful Assembly" under IPC have been clubbed under Section 189 of BNS. 

The six Sections 233, 234, 235, 256, 257 and 489 D of IPC that dealt with "making or selling instruments or materials for forging or counterfeiting coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 181 of BNS.  

The six Sections 242, 243, 252, 253, 259 and 489C of IPC that dealt with "possession forged  counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 180 of BNS. 

The nine Sections 239, 240, 241, 250, 251, 254, 258, 260 and 489B of IPC that dealt with "using as genuine, forged  counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 179 of BNS. 

The nine Sections 230, 231, 232, 246, 247, 248, 249, 255 and 489A of IPC that dealt with "counterfeit coin, Government stamp, currency-notes or bank-notes" have been clubbed under one Section 178 of BNS. 

Notably, 124-A of IPC which dealt with "sedition" has been deleted but Section 152 of the BNS deals with and "act endangering sovereignty, unity and integrity of India". There are decisions of the Supreme Court in Kedarnath Singh vs. State of Bihar (1962) to S.G Vombatkare vs. Union of India (2022) on the constitutionality of the Section 124-A of the IPC. In 2022, the Court directed the governments to restrain from filing any FIR under Section 124-A of the IPC. On September 12, 2023, it has referred the matter to a Constitution Bench of the Court.

With reference to the provision in the BNS on "Sedition law", it is noteworthy that the parliamentary committee's report acknowledges the fact that the Sedition law has just been paraphrased and retained. The 22nd Law Commission had suggested that sedition should be well defined. The Union government has decided to do the opposite of that. The provision in the new bill gives it such a broad definition that it can encompass any act in the name of endangering the unity and integrity of India. It leaves a lot of room for discretion which is the opposite of what was advised by the law commission. It talks about Acts endangering sovereignty, unity and integrity of India. Sedition gets a sinister backdoor entry in the new legal regime. This broad definition could potentially infringe on individuals' rights to free expression and peaceful dissent. The broad and vaguely worded sedition provisions can create a chilling effect on free speech and peaceful protest. Individuals may self-censor their opinions and criticisms, fearing legal consequences, which can undermine democratic values and civil liberties. The potential for misuse and abuse under the redefined sedition law has increased. Such broad and discretionary provisions can be employed to stifle legitimate dissent and criticism, limiting freedom of expression and potentially infringing on individuals' rights.

The three Sections 364, 364A and 365 of IPC which dealt with "Kidnapping for murder, ransom, etc." have been clubbed under one Section 140 under BNS. 

The eight Sections 340, 342, 343, 344, 345, 346, 347 and 348 of IPC which dealt with "wrongful confinement" have been clubbed under one Section 127 under BNS. 

Notably, certain offences defined under BNS are already defined and punishable under Unlawful Activities Prevention Act, 1967. UAPA, 1967 is a Special Enactment, it is having a special procedure with regard to investigation, bail etc. The incorporation of same provisions in the BNS will cause lot of confusion in the matter of registration of a case, investigation, inquiry and trial of a particular offence. The offenders who fall under both the enactments will attempt to escape the rigor of UAPA, 1967. There is an overlapping between UAPA and BNS and such overlapping will cause confusions. How a Police officer, though he is a senior officer can decide under which enactment a person is to be prosecuted. This is to be decided by the Court.

The provision in the BNS on the "Commutation of a sentence" is problematic. It gives the executive the powers to commute an offender’s sentence punishment for any other punishment. Allowing the executive to commute sentences can blur the separation of powers in a government. It gives the executive branch, which is responsible for enforcing the law, a role in altering or mitigating the legal punishments determined by the judiciary. This could potentially lead to an imbalance of power and an infringement on the judiciary's independence. Executive decisions might be swayed by electoral or popularity concerns rather than solely focusing on justice and the merits of individual cases. Commutations can be seen as undermining the authority and decisions of the judiciary. It may give the impression that the executive branch can override or second-guess the judiciary's determinations, eroding trust in the legal system.

With regard to the provision in the BNS on the "Solitary Confinement", it is noteworthy that solitary confinement is inhumane. There is research which shows that solitary confinement is not an effective tool for deterrence or rehabilitation. It does not reduce recidivism or promote positive behaviour change; instead, it can increase aggression and antisocial behaviour. It has been shown to have serious detrimental effects on individuals' mental and physical well-being, and it raises ethical and human rights concerns. The characterization of solitary confinement as a brutal type of incarceration by the Supreme Court of India in the case of Kishore Singh Ravinder Dev vs. State of Rajasthan highlights the court's recognition of the severe and adverse effects of solitary confinement on individuals.

With regard to the provision in the BNS on the "Promise to Marry", it must be noted that relationships and decisions about marriage are deeply personal matters that should be left to the individuals involved, subject to only some basic safeguards that may be consensually instituted by the society Criminalizing a Promise to Marry can be seen as an undue intrusion into individuals' Right to Privacy and autonomy. Determining whether a promise to marry has been made can be subjective and challenging to prove. Intentions can change over time, and proving that a promise was genuinely made with the intention to marry can be difficult. Defining what constitutes a legally binding Promise to Marry can be vague and open to interpretation. This lack of clarity can lead to inconsistencies in enforcement and judgments. Criminalizing a Promise to Marry can be viewed as an unwarranted intrusion into the fundamental Right to Privacy and personal autonomy, which are cherished principles in a democratic society. In this context, a more nuanced and rights-based approach to addressing matters related to promises to marry would be both pragmatic and respectful of individual freedoms and choices.

With regard to the provision in the BNS on "Kidnapping and begging", it fails to exclude the exception of lawful guardian of such child. Even guardians who wrongfully push children into begging should be rigorously punished. Excluding the exception of lawful guardians in a clause punishing those who wrongfully push children into begging is essential to safeguard the rights and well-being of vulnerable children. It sends a strong message that all individuals, regardless of their legal relationship with the child, will be held accountable for such harmful actions, acting as a powerful deterrent against child exploitation. This approach prioritizes the child's best interests, prevents potential legal loopholes, and aligns with international human rights standards, fostering a child-centered and protective legal framework that leaves no room for evading responsibility in cases of child exploitation.

The current definition of "imprisonment for life" within the BNS is not explicitly clear. It appears to be using the term "imprisonment for the remainder of a person's natural life." However, in the IPC, Section 53, the term "imprisonment for life" is used without specifying whether it means "imprisonment for the remainder of a person's natural life" or if it is equivalent to a "whole life sentence." There needs to be clarity about whether the convicts are expected to remain in prison for the entirety of their natural life or are eligible for release. The definition of "imprisonment for life" in the BNS is not explicitly clear, and it differs from how "imprisonment for life" is generally understood in the context of the IPC. To avoid confusion and ensure legal clarity, the definition in the BNS be aligned with the understanding that "imprisonment for life" means a "whole life sentence" unless otherwise specified. This would help in harmonizing the definitions and interpretations across different legal contexts in India. 

With regard to "Offences Relating to Elections", one of the general patterns in contemporary India’s criminal law is that offences that are particularly difficult to regulate and especially elaborate in their organisation internally while having a large-scale impact on society are addressed by ‘special statutes’. These special statutes while being harsh in punishment are rigorous in the procedural safeguards. The emphasis being that there are checks and balances present in the quest of the state to prosecute and the efforts of the accused to defend herself. Any detraction from the procedural protections that general criminal law offers, will have checks in place in these special statutes. Offences related to elections should have been in the Representation of People Act.

With regard to clause on "Defamation", there is no limitation on filing cases for defamation. Imposing a time limitation on defamation claims helps protect the fundamental principle of free speech. Without such limitations, individuals or organizations could potentially bring defamation claims many years after an alleged defamatory statement was made. This could have a chilling effect on free expression and public discourse, as people may become reluctant to express their opinions or engage in critical discussions for fear of facing legal action at any time in the future.

 A new Section 69 in the BNS deals with "sexual intercourse by employing deceitful means". It penalizes sexual intercourse by employing deceitful means (false promise of employment or promotion, inducement or marrying after suppressing identity) or by making promise to marry without intention of fulfilling the same.

A sentence of community service has been introduced for six offences. This is reserved for minor offences, non-violent crimes, and first-time offenders. These are:

1. Non-appearance in response to a proclamation under Section 84 BNSS (Section 209 BNS).

2. Public servant unlawfully engaging in trade (Section 202 BNS).

3. Attempt to commit suicide to compel or restrain exercise of lawful power (Section 226 BNS).

4. Petty theft (involving property worth less than INR 5,000) by first-time offenders upon returning the stolen property (Proviso to Section 303 BNS).

5. Misconduct in public by a drunken person (Section 355 BNS).

6. Defamation (Section 356 BNS).

Notably, under section 18(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015 a juvenile may be directed to undertake Community Service as a penalty.

Community service has been defined as ‘Court ordered work that benefits the community, and which is not entitled to any remuneration’ (Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita). In State through PS Lodha Colony, New Delhi v. Sanjeev Nanda (BMW Hit and Run case), Supreme Court directed community service under Article 142 of the Constitution of India as a reformative measure along with payment of compensation instead of enhancing the sentence. 

BNS misses the opportunity to the menace of ‘hate speeches’. It has not been defined in any law including the new law. Section 196 of the BNS deals with the offence of  promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. It includes electronic communication in its ambit but does not define it. It ignores Law Commission’s 267th Report on Hate Speech and the decision of the Supreme Court in Pravasi Bhalai Sangathan vs. Union of India (2014).

BNS fails to include Section 153AA of IPC, which deals with punishment for knowingly carrying arms in any procession or organizing, or holding or taking part in any mass drill or mass training with arms. It was enacted in 2005 by Parliament but it was not notified. 

Section 104(2) of the BNS violates Article 20(3) of the Indian Constitution which says “no person accused of an offence shall be compelled to be a witness against himself”.

The new criminal law enhances the time for which a person can be kept in police custody, there exists no protective measures to provide safety to the accused persons under police custody which is bound to adversely affect the safety of detainees.

There are several provisions in the amended law which consolidate powers introduced by the colonial powers. For instance, Section 113 (terrorist acts) of the BNS unmindful of the fact that the Unlawful Activities (Prevention) Act (UAPA), 1967 already deals with it. It is intriguing as to why create a general law provision when UAPA, a special law already exists in this regard.

The BNS retains the marital rape exception. It retains the value laden phrase ‘outraging the modesty of women’ instead of replacing it with the gender-neutral term ‘sexual assault’. It provides inadequate protection to victims of non-consensual intimate imagery. It does not include any provision for offences involving rape of males or of transgender individuals. The provision for offence for acts endangering ‘sovereignty or unity and integrity of India’, is ambiguous, with the potential to curtail freedom of speech or to stifle dissent.

The judgement of the Supreme Court in Mithu Vs. State of Punjab underlined that there is no intelligible differentia in sentencing a person only with death sentence under section 303 of IPC. The BNS attempts an alternate sentence to the death, namely imprisonment for life which means imprisonment for the remainder of the person’s life. This falls foul of the Court's judgement. 

Notably, a significant majority, or 76% (279 individuals), of those sentenced to death in India belong to backward classes and religious minority groups. 

The National Judicial Data Grid reveals that 34,180,141 criminal cases at the district and taluka courts are pending in India. 1,755,946 criminal cases are pending in the high courts. At the Supreme Court 18,049 (less than one year old) cases are pending. The new criminal laws will result 30 percent increase in criminal litigation. It is all set to create two parallel sets of laws since the criminal justice system is a combination of both substantive and procedural laws.

Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 replaces Code of Criminal Procedure (Cr.PC), 1973

The BNSS amends the Code of Criminal Procedure (Cr.PC), 1973. It has been claimed that the important changes in BNSS are as under:

1. Special Laws Supersede General Criminal Procedures- The BNSS clarifies that in the case of special laws conflicting with the Cr.PC, the provisions of the special law take precedence.

2. Integration of Technology in Legal Processes- The Sanhita introduces the use of technology in various legal proceedings, such as serving summons, notices, and warrants electronically, enhancing efficiency and reducing paperwork.

3. Modernization of Court Structure-It simplifies the court system by eliminating British-era designations like "Metropolitan Magistrate" and "Metropolitan Area".

4. Introduction of Special Executive Magistrates- The Sanhita allows the appointment of police officers as Special Executive Magistrates for specific areas or functions.

5. Appointment of Public Prosecutors in Delhi- In the National Capital Territory of Delhi, the Central Government, in consultation with the High Court can appoint Public Prosecutors for trial, appeal, and other proceedings, ensuring efficient legal representation.

6. Establishment of Directorate of Prosecutions- The BNSS defines the roles and powers of the Directorate of Prosecutions, headed by a Director Prosecution, functioning under the administrative control of the Home Department of each state.

7. Increase in Maximum Fines and Arrest Conditions- The BNSS raises the maximum fines that Magistrates can impose and introduces conditions for arrests,  including the requirement for permission in specific cases.

8. Designated Police Officers for Information on Arrested Persons- The BNSS mandates the appointment of designated police officers in each district and police station to provide information about arrested individuals to the general public.

9. Medical Examination of Arrested Persons- The Sanhita requires medical practitioners to promptly examine arrested persons and forward examination reports to the investigating officer.

10.Arrest Procedures for Women- The BNSS stipulates that information about the arrest of a woman must be provided to her relatives, friends, or designated individuals.

11.Use of Handcuffs during Arrests-It provides guidelines for police officers to use handcuffs when making arrests, considering the nature and gravity of the offence.

12. Service of Summons on all Adult Family Members- To promote gender parity, the BNSS allows service of summons to any adult family member, including women, in the absence of the person to be summoned.

13.Declaration of Proclaimed Offenders- The Sanhita expands the category of "proclaimed offenders" to include offences punishable with imprisonment of 10 years or more, life imprisonment, or the death penalty.

14.Forfeiture of Property of Proclaimed Offenders who are staying Abroad- The BNSS introduces provisions for identifying, attaching, and forfeiting the property of proclaimed offenders located outside India.

15.Videography of Search and Seizure Operations-It mandates the videography of search and seizure operations, ensuring transparency and adherence to procedures.

16.Protection for Armed Forces Personnel- The Sanhita introduces safeguards to prevent the registration of cases against armed forces personnel for acts performed in the line of duty without prior consent from the Central or State Government.

17.Introduction of "Zero FIR"- The BNSS facilitates the filing of "Zero FIRs" for offences occurring outside the jurisdiction of a police station but within the State.

18.Procedures for Non-Cognizable Offences- The Sanhita outlines procedures for handling non-cognizable offences, requiring the police to forward case details to the Magistrate weekly.

19.Forensic Evidence Collection for Serious Offences-It mandates forensic teams to visit the crime scene to collect evidence for offences punishable by imprisonment of seven years or more.

20.Protection of Vulnerable Witnesses- The BNSS provides safeguards for witnesses, including videoconferencing for recording statements and protection for witnesses' identities.

21.Recording of Confessions and Statements- The Sanhita requires Judicial Magistrates to record statements of witnesses brought before them by police officers in cases with severe penalties.

22.Recording of Statements of Rape Victims-It stipulates that the statements of rape victims should be recorded by female Judicial Magistrates or, in their absence, by male Judicial Magistrates in the presence of women.

23.Limitation on Police Custody Duration- The BNSS sets limits on police custody, specifying maximum periods for detention during different stages of investigation.

24.Types of Custody Defined- The Sanhita defines various forms of custody, including police custody and judicial custody, clarifying their legal status.

25.Production of Accused before Magistrate-It mandates that an accused person must be produced before a Magistrate during the filing of charge sheets, preventing arbitrary arrests.

26.Informing the Informants and Victims about Progress of Investigation- The BNSS requires police officers to inform informants and victims about the progress  of investigations, including through digital means.

27.Supply of Documents to Accused- The BNSS streamlines the supply of documents to the accused, ensuring timely access to case-related materials.

28.Time Limits for Completion of Investigation-It sets timeframes for the completion of investigations, with provisions for extensions under certain circumstances.

29.Expanded the scope for complaints regarding contempt of lawful authority The BNSS broadens the scope for lodging complaints regarding contempt of lawful authority, allowing other public servants to file such complaints.

30.Revised Threshold for Petty Offences- The BNSS increases the threshold for petty offences subject to summary disposal, reducing the burden on the judicial system.

31.Timeframes for Committal Case Proceedings- The BNSS establishes timeframes for committal cases, limiting the duration of proceedings and mini trials.

32.Time Limits for Filing Discharge Applications in Session Cases-It sets time limits for filing discharge applications in session cases, expediting the legal process.

33.Timeframe for Framing Charges in Session Trials- The BNSS introduces a timeframe for framing charges in session trials, promoting procedural efficiency.

34.Timeframes for Pronouncing Judgments-It prescribes timeframe for judges to pronounce judgments, ensuring timely resolution of cases.

35.Procedures for Filing Discharge Applications in Warrant Cases- The BNSS outlines the procedures for filing discharge applications in warrant cases, streamlining the legal process.

36.Discharging Accused in Absence of Complainant-It allows for the discharge of accused persons in the absence of the complainant under specific circumstances.

37.Recording Statements through Electronic Means- The BNSS permits the recording of statements through electronic means, enhancing convenience and accuracy.

38.Limitation on Trial Adjournments- The BNSS places restrictions on the adjournment of trials, ensuring the expeditious resolution of cases.

39. Sampling for Investigation without Arrest-It introduces provisions for collecting samples for investigation without the necessity of arresting the accused.

40.Trials in Absentia for Proclaimed Offenders- The BNSS allows trials in absentia for proclaimed offenders.

41.Victim's Right to Be Heard in Case Withdrawal- The BNSS grants victims the right to be heard before any withdrawal or compromise in criminal cases.

42.Time Limits for Pronouncing Judgments and Online Publication- The Sanhita mandates specific time limits for pronouncing judgments and promotes online publication for transparency.

43.Witness Protection Schemes-It establishes witness protection schemes to safeguard witnesses who are under threat.

44.Central Government Concurrence for Sentence Remission-It requires the concurrence of the Central Government for the remission of sentences awarded by military courts.

45.Release of Undertrial Prisoners to address overcrowding- The Sanhita addresses prison overcrowding by allowing the release of undertrial prisoners on personal bond.

46.Disposal of Properties in Pending Trials- The BNSS outlines procedures for the disposal of properties that are the subject of pending trials, thereby preventing misuse.

But the fact is that 95 per cent of the clauses has been copied and pasted from the the Cr.PC.

The abolition of the rank of Assistant Sessions Judge in the BNSS is wrong. Now, all offences punishable with imprisonment exceeding 3 years (limit of a Judicial Magistrate) and exceeding 7 years (limit of a Chief Judicial Magistrate) must be tried by a Sessions Judge. This places a heavy burden on Sessions Judges. Now the first appeal will lie to the High Court increasing the workload of the High Court. An Assistant Sessions Judge with jurisdiction to impose a sentence not exceeding 10 years would have taken the load of such cases and the first appeal would have been to the Sessions Judge and only a revision to the High Court. The rank of Assistant Sessions Judge should be restored. 

The BNSS reflects the wrong assumption that a person arrested must be sent to police custody or judicial custody. The provision of 15 days police custody should have been continuous and normally immediately upon arrest. If police custody is allowed in bits and pieces within a period of 60/90 days, the inevitable tendency will be for Magistrates to order judicial custody for the remaining days of the 60/90 day period, overlooking the fact that the accused is entitled to liberty. It will lead to more persons sent to jail. The existing provision in the CrPC should have been retained.

The extension of the duration for which a detainee can be held in police custody beyond 15 days contradicts the Supreme Court's ruling in CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141, which deemed police custody beyond this period impermissible. By elongating the detention period under police custody, the new laws expose detainees to potential threats, abuse, or coercion by the police. The protection of judicial custody, where police require the Magistrate's permission to interrogate a suspect, has been entirely disregarded and nullified by the new laws. It paves the way for police raj in the name of  criminal law reforms.

The deposition of a police officer (including the investigating officer) is crucial in a criminal trial. He/She must physically depose before the Court in an open-to-the-public proceeding and must be cross-examined in an open Court by the accused. Anything less is retrograde. 

The key witnesses, especially eye-witnesses, must be made to depose physically in an open Court. For reasons to be recording in writing, the Magistrate/Judge may allow deposition of formal witnesses through audio-visual mode. The reason for physical deposition is that the Court must ensure that the witness is not being tutored or prompted or under duress and the Court must be able to observe the demeanour of the witness.

A document "prepared" by a public servant must be proved by that public servant. There should be no difficulty in summoning the author if he had retired or been transferred. It is only in the case of death of the author, the rules of evidence in case of death of the author of a document may be invoked. In particular, an Investigating Officer must always depose and prove the documents prepared by him, e.g. statements recorded by him or mahazars prepared by him. No successor can take the place of an investigating officer. A contrary provision in the BNSS is unacceptable and opposed to the normal rules of evidence as well as the principles of a fair trial.

The BNSS deals with powers to summon for evidence. It includes summoning of “digital evidence,” and covers any electronic communication such as messages, call recordings, and emails, as well as electronic communication devices such as mobile phones, laptops, cameras, and any other electronic device that may be specified by the government through notification in the future. A court also has the right to order search and seizure of such evidence for various reasons, including if the person in possession of the evidence is not expected to produce the same. A mobile device or a laptop contains a lot of information which might not be relevant to the case because electronic devices in today's age contain all information pertinent to an individual's general existence. The invasion of the Right to Privacy because of the scope of information that is in these devices has not been safeguarded. The collection of such devices is likely to go against the Right against self-incrimination.

The BNSS expands the powers of the police while taking preventive action. The police officer “may detain or remove any  person resisting, refusing, ignoring or disregarding to conform to any  direction” under it. The Indian Criminal Justice System is  based on a due-process model, but giving the Police such wide and discretionary powers during preventive action is fraught with adverse ramifications for the citizens.

All provisions of any law that violate the principle 'Bail is the rule, jail is the exception' should have been deleted. Every person arrested is entitled to bail. It must be provided in the law that it will be the duty of the prosecution to plead and establish why the accused should not be released on bail and not the other way around. This is especially so when, by using advanced technology, the accused can be placed under restraint without custody and ensure that he appears in the trial. This will also mitigate the perennial problem of overcrowding of jails. 

Unlike Section 227 of the Cr.PC, the BNSS expressly acknowledges the accused's right to file an application for discharge. It also sets a sixty-day time limit for filing this application from the date of committal to the Sessions Court. While this timeline may seem like a step toward reducing trial delays, it overlooks systemic challenges in our pre-trial processes. Accused individuals often lack timely access to their case papers and may not have legal representation during this stage. Moreover, there can be a significant delay between the Magistrate's committal of the case to the Sessions Court and its assignment to a Sessions Judge. This gap affects the production of the accused and the receipt of necessary records. When courts consider whether to grant discharge or frame charges, they must evaluate whether there exists a "strong suspicion" supported by material that the accused committed the offense.  Addressing issues related to the timely provision of case papers and ensuring  early access to legal representation is crucial for making this opportunity to file for discharge meaningful.

The issue of challenging forensic reports under BNSS is further complicated by a clause in BNSS, which mirrors Section 294 of the CrPC. It eliminates the requirement of formal proof for documents whose genuineness is uncontested by the opposing party. BNSS necessitates that parties admit or deny the genuineness of documents within thirty days of their supply, with the possibility of extending this time limit at the Magistrate's discretion upon providing reasons. Notably, a new proviso in the BNSS states that an expert cannot be summoned to appear before the court unless their report is disputed by a party. This proviso applies to all experts. The provision BNSS, like Section 294 of the CrPC, applies to the pre-trial stage of criminal proceedings, where parties have the opportunity to challenge the genuineness of documents relied upon by the opposing party, ensuring the documents are free from forgery or fabrication. However, there is a difference of opinion among courts regarding whether  expert reports, such as medical or post-mortem reports, can be admitted as evidence without the testimony of the experts who prepared them, in cases where the genuineness of such reports remains unchallenged.

The BNSS retains the established timelines of sixty or ninety days and the concept of default bail, as found in the CrPC. However, unlike Section 167 of the CrPC, BNSS additionally allows for detention in custody, whether police or judicial, for a total of fifteen days, which can be imposed at any time during the initial forty or sixty days of the respective sixty or ninety-day period. Consistent with the CrPC, BNSS grants any magistrate the authority to authorize detention, regardless of their jurisdiction to try the case. In contrast, BNSS requires a jurisdictional Magistrate.

BNSS permits detention in custody to be authorized beyond the fifteen-day period, without the stipulation that it must be "otherwise than in police custody," implying that police custody can also be used during this extended period. The legislation extends police/judicial custody from 15 to 90 days. This would put tremendous pressure and mental torture on the accused.

BNSS authorises detention in police custody upto 90-day for offences punishable with death, life imprisonment and imprisonment for a term not less than 10 years. It also authorises police custody for upto 60 days for offences where imprisonment is less than the above mentioned offences. This dilutes the Right to life, health (physical and mental) and fair trial. It enables trial in absentia if the judge finds the attendance of the accused in court not necessary “in the interests of justice” or if the accused “persistently” disturbs proceedings in court.

Handcuffing should have been restricted to cases where the arrested person is known to be violent or is likely to escape custody. In no other case should handcuffing ought to be permissible. A Magistrate must examine and be satisfied about the necessity and legality of the arrest before he remands the accused.

The indiscriminate arrests and the unreasonable denial of bail are the reasons why over two-third of prisoners in jail are undertrials and every prison-reform has failed because of the unmanageable number of prisoners.

 This criminal law affects the lives of the whole population of India including the economically weaker Sections and the marginalized.

Bharatiya Sakshya Adhiniyam (BSA) replaces the Evidence Act

The biggest "change" in the Evidence Act, 1872 has been the renumbering of Sections. This exercise is going to be responsible for large scale confusion resulting in unnecessary delay in the functioning of courts and the policing agencies. The law of evidence has also undergone substantial changes, particularly with regard to electronic evidence in BSA, which has replaced the Evidence Act.

The definition of ‘documents’ under section 2(1)(d) of BSA has been expanded to include electronic and digital records. Electronic record has been defined under section 2(1)(t) of Information Technology (IT) Act, 2000. The definition of ‘evidence’ under section 2(1)(e) of BSA has been expanded to include statements given electronically. This would permit the appearance of witnesses, accused, experts and victims to depose their evidence through electronic means. It also establishes ‘digital records’ as documentary evidence. Electronically provided information shall be treated on par with traditional in-person statements, considering the challenges of in-person presence.

Under section 2(2) of BSA, all words and expressions not defined herein have been given the same meaning as defined under the IT Act, BNSS and BNS. The section is comprehensive and covers all words / expressions in these statutes instead of a few expressions defined in the IT Act.

Under section 4 of BSA, the principle of res gestae is made applicable both to fact in issue and relevant fact instead of fact in issue only. Res gestae are the facts that form a part of the same transaction automatically or naturally. They are the acts that speak for themselves. Section 6 of The Indian Evidence Act dealt with facts connected with the fact in issue so as to form part of the same transaction regardless of whether occurred at the same time and place. Under section 24 of the Evidence Act, confession was irrelevant if given under inducement, threat or promise only. In section 22 of BSA, ‘coercion’ has been added as a new ground rendering confession irrelevant.

An Explanation has been added to section 24 of BSA which clarifies that in a case where a proclaimed offender is tried in absentia (Section 356 of BNSS) jointly with other accused, confession of one accused may be used against others including the proclaimed offender. Official gazette in digital/electronic form is made admissible under section 31 of BSA. Use of law books in digital/electronic form is made admissible under section 32 of BSA. Under section 35 of BSA, a final judgment, order or decree of Tribunal is relevant. Previously the relevancy was only of final judgment, order or decree of competent court. Under section 39 of BSA, the scope of an expert has been expanded to include persons especially skilled in ‘any other field’ along with the previously defined skills under section 45 of the Evidence Act. Facts which need not be proved. Facts of which Court shall take judicial notice under section 52 of BSA has been modified.

The ambit of Primary Evidence under section 57 of BSA has been expanded to include the digital electronic record created or stored simultaneously or sequentially in multiple files, each file is primary evidence. Electronic record produced from proper custody if not disputed. Video recording simultaneously stored, broadcasted and transmitted to another device. Each of its stored recording is primary evidence. Electronic record automatically stored in a multiple storage space in a computer resource. Each automated storage is primary evidence. The scope of Secondary evidence has been expanded in section 58 of BSA to include the oral admissions, written admissions, and evidence provided by a person who is skilled in examining certain documents, which being technical or voluminous cannot be conveniently examined. Digital or Electronic records have the same legal effect, validity and enforceability as any other document as per section 61 of BSA.

Section 63 of BSA includes electronic records copied in semiconductor memory in addition to optical or magnetic media as provided in The Indian Evidence Act. It also enlarges the ambit of the provision by covering electronic records produced by any communication device or otherwise stored, recorded or copied in any electronic form (e.g., DVR, Flash Drive, CD/ DVD, Server, Cloud, etc.), and not produced by a computer only, as was the case in The Indian Evidence Act. Thus, the scope of devices through which electronic or digital records can be sourced as evidence has been enlarged. Section 63 of BSA outlines the requirements for submitting certificates which have been appended in “The Schedule”. Earlier, a certificate signed by a person in charge of the computer or management of relevant activities was sufficient. As per this provision, in addition to a certificate signed by the person in charge of computer or communication device, another certificate (as provided in the Schedule to BSA) duly signed by an expert must be submitted. The certificate shall contain details such as the kind of device, model, serial number, colour, hash value, etc. The expert’s certificate ensures authenticity of electronic record admitted in evidence. Who is an expert is not defined in the section. Section 79A of the IT Act defines ‘Examiner of electronic evidence’ as an expert. In addition thereto, section 39 of BSA permits opinion of persons specially skilled in ‘any other field’ which may include electronic evidence as expert evidence. 

As per section 122 of BSA, no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy or any time thereafter, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. The expression “or any time thereafter” has been added. The word “lunacy” has been replaced by “mental illness” under section 124 of BSA. Under section 138 of BSA, an accomplice shall be a competent witness against an accused person and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice. This removes the inconsistency with illustration (b) in section 114 of The Indian Evidence Act  (section of 119 of BSA).

Section 165 of BSA disallows any court to demand production of any communication between ministers and President of India. It is not surprising that Prime Ministers and Finance ministers who have been promoting the economic interests of commercial czars desire to get themselves elected as the President to make themselves immune from prosecution for their acts of omission and commission.