NEW CRIMINAL LAW BILLS

Introduction

The Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB) aim to modernize India’s legal framework by replacing the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA). These bills represent a significant effort to reform the criminal justice system, but they also raise several critical issues.

Evolution and Reform of India’s Criminal Justice System

The IPC, IEA, CrPC, Police Act, 1861, and Prisons Act, 1894 were foundational in British India’s criminal justice system. Post-independence, the CrPC was replaced in 1973, and police and prisons were placed in the State List of the Seventh Schedule of the Constitution. Special laws have since been enacted to address specific crimes and regulatory needs. In August 2023, the BNS, BNSS, and BSB were introduced in Lok Sabha to replace the IPC, CrPC, and IEA, respectively. These bills have been reviewed by the Standing Committee on Home Affairs.

Key Issues in Criminal Law Reforms

1. Modernizing the Criminal Justice System:
   • The existing IPC, IEA, and CrPC are outdated, reflecting 19th and 20th-century norms. The new bills seek to align criminal jurisprudence with contemporary standards.
2. Punitive vs. Reformative Justice:
   • The bills introduce some reformative elements, such as community service as an alternative to imprisonment, but largely retain a punitive approach. This inconsistency is evident in the classification of offences like theft and snatching.
3. Civil vs. Criminal Jurisprudence:
   • The BNSS and BNS retain several provisions that could be considered civil disputes, such as defamation and maintenance to family members. This raises the question of whether such matters should be dealt with under criminal law.
4. Trial Procedure and Maintaining Public Order:
   • The BNSS combines procedures for investigation and trial with provisions for maintaining public order, despite these being distinct functions. This inclusion raises constitutional questions as public order is a state subject.
5. Overlap with Special Laws:
   • The bills retain offences covered under special laws, potentially creating regulatory duplication. While some offences have been removed, others like terrorism and organized crime remain, overlapping with existing laws.
6. Age for Criminal Responsibility:
   • The minimum age for criminal responsibility remains at seven years, lower than international norms and other jurisdictions, potentially contravening international conventions.
7. High Proportion of Undertrials in Jails:
   • The BNSS retains current provisions from the CrPC regarding bail and plea bargaining, limiting the scope for undertrial release and bargaining, which could exacerbate jail overcrowding.
8. Court Judgements and Committee Recommendations Not Codified:
   • The bills do not incorporate several judicial directions and high-level committee recommendations, such as those related to anticipatory bail and arrest procedures.
9. Institutional Bottlenecks:
   • Issues like police vacancies and inadequate forensic capacity, which affect the speed of justice delivery, are not addressed in the bills.
10. Drafting Issues:
    • The bills have gaps concerning offences, drafting errors, and outdated illustrations.

Gaps in Old Law and New Law

1. Age of Criminal Responsibility:
   • Old Law: IPC sets the minimum age at 7 years.
   • New Law: BNS retains the age at 7 years, which is lower than international norms.
2. Bail Provisions:
   • Old Law: CrPC allows bail for undertrials after half the maximum imprisonment term.
   • New Law: BNSS retains this but adds restrictions for multiple charges and life imprisonment cases.
3. Plea Bargaining:
   • Old Law: Limited to sentence bargaining; no provision for lesser offence bargaining.
   • New Law: BNSS retains the same limited scope.
4. Reformative Justice:
   • Old Law: Focus on punitive measures, limited provisions for community service.
   • New Law: BNS introduces community service for minor offences but largely retains punitive nature.
5. Overlapping Laws:
   • Old Law: IPC overlaps with special laws on issues like terrorism and organized crime.
   • New Law: BNS retains many overlapping provisions, adding to the complexity.
6. Sentencing Guidelines:
   • Old Law: No clear sentencing guidelines, leading to judicial disparity.
   • New Law: BNS does not address this gap, maintaining a wide range of penalties.
7. Institutional Bottlenecks:
   • Old Law: Issues like police vacancies and forensic inadequacies not addressed.
   • New Law: Bills do not address these fundamental systemic issues.
8. Public Order and Trial Procedure:
   • Old Law: CrPC combines trial procedures with public order provisions.
   • New Law: BNSS continues this practice, raising questions about appropriate legislative separation.

Conclusion

The BNS, BNSS, and BSB represent a significant step towards modernizing India’s criminal justice system. However, they retain a largely punitive approach, include provisions that may be better suited to civil law, and overlap with special laws, potentially creating inconsistencies. Additionally, the minimum age for criminal responsibility remains low, and institutional bottlenecks are not adequately addressed. Addressing these issues is crucial for creating a more effective and just legal system.The new bills aim to modernize and reform the criminal justice system but retain many of the old system’s characteristics and gaps. They introduce some reformative elements but largely maintain the punitive approach, fail to address systemic issues, and overlap with existing special laws, complicating the legal framework.

SOURCE – PrsIndia 

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