In the purported overhaul of the justice codes, the three revisions are not only very similar to old procedures, but also lack clarity that could lead to arbitrary and whimsical enforcement
By Prof Pallavi Gupta and Prof NK Bahl
The criminal justice system has been comprehensively overhauled by the enactment of three new legislations, namely the Bharatiya Nyaya Sanhita, 2023, (BNS); the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). These three legislations have replaced colonial era codes, namely the Indian Penal Code, 1860; the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973, respectively. These legislations are yet to come in force.
The main aim of these new legislations is not to punish, but provide access to speedy justice to all. The goal is to raise the conviction percentage. The new laws reflect the Indian ethos, marking a transition from intent to punish to delivering equitable and time bound justice. Some of the features of the first two bills are as follows:
Bharatiya Nyaya Sanhita, 2023
The scope of organised crimes has been widened by including unlawful activities, such as kidnapping, robbery, land grabbing, contract killing and cyber offences, amongst others. Some offences like ATM thefts, leaking question papers, shoplifting, car theft and stealing valuables from a car are clubbed as petty organised crimes. Previously, they were clubbed under the broad heading of “theft”.
An imprisonment of three years has been provided for making, publishing or circulating statements that are likely to cause fear or alarm to the public, or with the intent to incite people to commit offences against others.
Hate speech crimes will attract an imprisonment up to three years for insulting or trying to insult any religion or religious beliefs. Such offences, if committed in a place of worship will attract an imprisonment up to five years.
Hit and run cases
In the BNS, hit and run cases will attract imprisonment up to 10 years and fine if the driver-accused flees from the scene or fails to report the accident to the police or magistrate soon after the incident.
Terrorism is defined on the lines of UAPA and mob lynching, snatching and endangering the unity and integrity of India have been defined as new offences in the BNS. At the same time, marrying a woman by concealing identity or having sexual intercourse under the false promise of marriage, promotion or employment are now in the category of the crime and will attract imprisonment up to 10 years. In cases of gang rape, a punishment of 20 years or life imprisonment has been provided. But gang rape of girls below 18 years will be punished with life imprisonment or death penalty. A new chapter on offences against woman and child has been introduced.
In order to compel attendance of an accused by a court, his non-appearance in response to a proclamation issued under Section 84 of BNSS is made a punishable offence. Attempt to suicide with the intent to compel or restrain any public servant from discharging his official duties is also a new offence
Community service has been introduced for six offences as a new kind of punishment. An attempt has been made to bring restorative justice by emphasising personal accountability. For example, in cases of theft, in order to get the benefit of community service as punishment, the convict has to satisfy three conditions. He should be convicted for the first time, the value of the stolen property should be less than Rs 5,000 and he should have either restored the stolen property or returned the value of it. Community service refers to “works which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration”. Strangely, it is not explained what kind of work may constitute community service. This lack of clarity may lead to imposition of arbitrary and inappropriate punishments.
The offence of sedition, as loosely defined in Section 124-A of the IPC, 1860, has been abolished, but endangering the unity and integrity of India could result in life imprisonment. This will include secessions, armed rebellion and subversive activities aimed against the country’s sovereignty as well as its unity and integrity.
In P. Rathnam vs U.I.O., 1994 (3), a division bench of the Supreme Court had declared Section 309 of the IPC (attempt to commit suicide) as unconstitutional. But in Gian Kaur vs State of Punjab, 1996 (2), a constitutional bench of the Supreme Court held this Section as valid. Section 309 IPC dealing with attempted suicide is now deleted. But abetment to suicide still continues as an offence.
Section 377 of the IPC relating to unnatural offences was held unconstitutional by a division bench of High Court of Delhi in Naz Foundation vs Govt. of NCT of Delhi. On appeal, this decision was overruled by the Supreme Court in Suresh Kumar Koushal vs Naz Foundation, (2014). Homosexuality was criminalised once again and Section 377 IPC was held constitutional. In Navtej Singh Johar vs UOI, decided on September 6, 2018, a five-judge bench of the Supreme Court unanimously struck down Section 377 of the IPC to the extent that it criminalised same sex relations between consenting adults. Now, Section 377 has been dropped in BNS.
In Joseph Shine vs UOI, the Supreme Court declared Section 497 of the IPC as unconstitutional. Thus, adultery was decriminalised. This Section has been dropped in BNS.
Section 303 of IPC, 1860, said that whoever being under sentence of imprisonment for life commits murder shall be punished with death. This Section was struck down by a five-judge bench of the Supreme Court in Mithu vs State of Punjab as unconstitutional because the only punishment provided was death penalty. Now the same Section has been retained as the new Section 104 in BNS. It says that whoever, being under sentence of imprisonment for life commits murder shall be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life. Thus, an alternative punishment for life imprisonment has been provided and life imprisonment is clarified as remainder of that person’s natural life. Thus, the rigour of Mithu has been resolved.
Criticism and peaceful protest
In a healthy democracy, everyone has the right to criticise the government, but demeaning India is something different. There has been a clear line of distinction between criticism and peaceful protest against the government. Now criticism of the government has been distinguished from peaceful protests against it. But subversion, secession and armed rebellion against an Indian state continues to be an offence. A peaceful protest in order to convince the government is not an offence.
Reprieve for Doctors
Medical professionals, especially doctors, have been shielded in cases of medical negligence. Under IPC, 1860, cases of medical negligence leading to death were covered under Section 304-A, which dealt with causing death by a rash or negligent act, not amounting to culpable homicide. The new legislation seeks to insulate doctors from criminal prosecution in such cases. BNS has incorporated the concept of “good faith” in Section 26. An illustration is appended under this Section which says that a surgeon performing an operation on a patient in good faith and not intending to cause his death conducts the operation for the benefit of the patient and does not commit any offence. It is submitted that decriminalisation of medical negligence would help doctors in taking correct and bold decisions in cases of critically ill patients and will lead to saving lives. Doctors will now not be fearful of being blamed for negligence. The fear of the police and threat of prosecution by relatives of patients would also decrease.
Section 420 in the IPC that led to the iconic movie made by Raj Kapoor is now listed as Section 318 in BNS. So 420 may not mean cheating now. Changes have been done to Section 302 of the IPC, which is now listed as Section 103 in BNS, which has 358 sections instead of 511.
Bharatiya Sakshya Adhinium
Under new BSA, electronic record is included in the definition of “document”. A statement received electronically is included in the definition of evidence. The BSA adds more standards for considering electronic and digital records as primary evidence, laying emphasis on its proper custody, storage, transmission and broadcast.
A husband/wife are now included as competent witnesses in criminal proceedings against each other, a departure from the old Section 122 of the Indian Evidence Act, 1872. Conviction based upon corroborated testimony of accomplice is made legal. Thus, the dichotomy between Sections 133 and 114 (b) of the Indian Evidence Act, 1872 is resolved.
There is little disagreement that the criminal justice system needs overhauling. Legal luminaries recognise that the genesis of problems lies in the laws enacted by a colonial regime in the 19th century. To this extent, the three new Acts are a step in the right direction. The offence of sedition is said to be abolished, but a new chapter VII titled as “of offences against the state” suggest that this criminalisation continues as earlier.
A separate provision for mob lynching leads us to the uncharted territory of punishing a mob with death penalty. Marital rape is not yet criminalised, which appears to be a regrettable decision. In spite of several discussions on abolition/retention of death penalty, it has been retained as one of the punishments in BNS. The offence of sexual intercourse with dead bodies, known as Necrophilia is not yet included in BNS. Unfortunately, facial recognition as a piece of evidence is missing in BSA.
The government in its wisdom has rightly deferred the date of enforcement of these three new legislations so that in the intervening period required infrastructure software, training of human resources, publication of books and complete computerisation of courts may be developed. Law schools and competitive examinations committees will have to make changes in their curriculums. Alumni law students appearing in competitive examinations will have to put extra effort in unlearning and re-learning serial numbers of sections and marginal head notes of old as well as new legislations.
In a nutshell, the criminal justice system has been overhauled by three criminal legislations, but too much of the old appears in the new ones.
—Professor Pallavi Gupta is HOD, Department of Law, JEMTEC, Greater Noida and Professor NK Bahl is a former District & Sessions judge, UP