Govt moves to overhaul British-era criminal laws

The ruling DMK in Tamil Nadu strongly opposed the naming of the bills, calling it “Hindi imposition” and an “audacious attempt” to tamper with India’s diversity

Union home minister Amit Shah on Friday introduced three bills in Parliament that seek to replace the British-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Indian Evidence Act, an overhaul that he said would “transform our criminal justice system”.

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The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Sakshya Bill, 2023 – introduced in the Lok Sabha on the last day of the monsoon session – include key changes to deal with offences of terrorism, crimes against women, corruption in election processes and acts that are against the State.

“From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. I can assure the House that these bills will transform our criminal justice system. The aim will not be to punish, it will be to provide justice. Punishment will be given to create a sentiment of stopping crime,” Shah said, while noting that the laws made by the British were full of signs of slavery and clearly aimed at punishing those opposed to their rule.

The colonial-era sedition law, 124A of IPC, has been repealed, Shah said, but a reading of the proposed new code showed the replacement – section 150 in Bharatiya Nyaya Sanhita (BNS) – seeks to prosecute acts of “secession or armed rebellion or subversive activities”.

“By replacing them (IPC, CrPC and Evidence Act), the new three laws will bring the spirit to protect the rights of the Indian citizen to centrestage,” he added.

Shah said the bills will be referred to the parliamentary standing committee on home affairs.

The Union home minister has said on various occasions earlier that radical changes are being made in IPC, CrPC and the Indian Evidence Act.

A panel of experts, also known as Committee for Reforms in Criminal Laws, appointed by the Ministry of Home Affairs (MHA), worked on the changes in the criminal laws starting 2020 and gave detailed recommendations to the government. MHA had also consulted states and other experts regarding the changes.

IPC, which deals with a majority of criminal offences, was brought by the British in 1860. It was adopted by the Indian government after Independence and has been amended around 77 times, but there were calls for revamping the entire criminal justice system as it was considered obsolete.

“The government of India considered it expedient and necessary to review the existing criminal laws with an aim to strengthen law and order and also focus on simplifying legal procedure so that ease of living is ensured to the common man. The government also considered to make existing laws relevant to the contemporary situation and provide speedy justice to common man. Accordingly, various stakeholders were consulted keeping in mind contemporary needs and aspirations of the people and with a view to create a legal structure which is citizen centric and to secure life and liberty of the citizens,” the statement of object and reasons for Bharatiya Nyaya Sanhita, which seeks to replace IPC, stated.

A key change in BNS provides for community service as one of the punishments for petty crimes. To be sure, courts have often exercised their discretion to order community service, but this was not laid down in code.

While BNS does not mention sedition, section 150 has been brought in to deal “effectively” with what it identifies as “secession”, “armed rebellion” “subversive activities”, “endangering sovereignty or unity and integrity of India”. These crimes will be punishable with imprisonment for life or with imprisonment to seven years with a fine.

The minister said it takes into account the Law Commission of India’s recommendation in June to enhance alternative punishment for sedition to seven years from three.

BNS bill also introduces provisions related to organised crimes under section 109, which, in a case a person dies as a result of organised crime activities, will attract death as punishment or imprisonment for life.

Section 44 in BNS bill allows the right to private defence against deadly assault, for instance in the cases of mob attack, while section 31 of the bill says if a communication made in good faith leads to any harm to the person, it is not an offence.

The statement of objects and reasons for BNS stated that the offences against women and children, murder and offences against the State have been given precedence.

“The various offences have been made gender neutral,” it said.

The home minister said that in the new BNS bill, provisions have been included for capital punishment for mob lynching as well as for rape of minors.

The new law also lays down that permission for trial against a civil servant or police officer must be granted within 120 days, otherwise it will be treated as deemed permission and the trial will begin.

There is also a new provision to try a criminal in absentia, which will help trials in cases similar to those of fugitives like Dawood Ibrahim, Vijay Mallya and Nirav Modi.

For the first time, snatching has also been introduced in the law.

Shah said the aim is to increase conviction rate to above 90%.

“For crimes which have imprisonments above seven years, forensic teams should be there at the scene which will decrease the chance of criminals getting acquitted.” The government will aim to computerise all courts by 2027, he added.

Shah said police would not be able to delay investigations anymore, adding that charge sheets will have to be filed within 90 days of lodging complaints. “The investigation will have to be completed within 180 days in all cases. The judge will have to give verdicts within 30 days of framing of charges.”

Judges, the home minister said in Lok Sabha, cannot delay hearings and orders, which should be out and made online within seven days.

Shah added that in rape cases, video recording of statements has been made compulsory.

Bharatiya Nagarik Suraksha Sanhita, or BNSS, which seeks to repeal CrPC, 1973, and deals with legal procedures in criminal cases and makes it mandatory for police officers to make audio and video recordings of search and seizure mandatory, as well as video recording statements of an accused persons.

The statement of object and reasons for BNSS said “specific time-lines have been prescribed for time bound investigation, trial and pronouncement of judgements” in the new law.

“In cases where the punishment is seven years or more, the victim shall be given an opportunity of being heard before withdrawal of the case by the government,” it said.

Besides, BNSS has made summary trial mandatory for petty and less serious offences like in the cases where value of property does not exceed ₹20,000.

The Bharatiya Sakshya Bill, 2023, or BSB, which replaces Indian Evidence Act, 1872, lays down how evidence is treated. The proposed provisions will allow witnesses, accused, experts and victims to appear through electronic means.

It also allows electronic evidence to have the same legal value as documents and seeks to expand the scope of secondary evidence to include copies made from the original by mechanical processes as proof of evidence.

“The existing law (CrPC) does not address the technological advancement undergone in the country during the last few decades,” the statement of object and reasons for BSB states.

The ruling DMK in Tamil Nadu strongly opposed the naming of the bills, calling it “Hindi imposition” and an “audacious attempt” to tamper with India’s diversity. DMK president and Tamil Nadu chief minister MK Stalin said the Bhartiya Janata Party (BJP) and Prime Minister Narendra Modi have no moral right to “even utter the word Tamil hereafter.”

“Recolonisation in the name of Decolonisation! The audacious attempt by the Union BJP government to tamper with the essence of India’s diversity through a sweeping overhaul – Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Bill – reeks of linguistic imperialism. This is an affront to the very foundation of #INDIA’s unity. BJP and Prime Minister Modi have no moral right to even utter the word #Tamil hereafter,” he said in a post on X (formerly Twitter).

Legal experts welcome the three new bills. Senior advocate Vikas Pahwa said, “The three criminal major acts were implemented more than hundred years ago and were in dire need of modifications. As a criminal lawyer, I have always felt that the procedure of trials, the definitions of the penal offences and the law of evidence are archaic, need radical changes and have to be in sync with modern India. Any law formulated on these lines would be propitious for the criminal justice system of our country. I welcome the initiative of the government to introduce these bills in the Parliament. If the bills satisfy the test of our emergent judicial needs, they shall bring cardinal advancement in the way trials are conducted in the country.”