Abstract :
The Indian legal framework is undergoing a significant transformation with the introduction of three new legislative acts that is the Bhartiya Nyaya Sanhita (“BNS”), the Bhartiya Nagrik Suraksha Sanhita (“BNSS”), and the Bhartiya Sakshya Adhiniyam (“BSA”). These acts aim to modernize, streamline, and enhance the efficacy of India’s criminal justice system. This paper provides a comprehensive analysis of these three acts, along with important key features of new criminal act from their predecessors.
Introduction :
India has recently undertaken a major reform of its criminal justice system, replacing outdated colonial-era laws with three new statutes: the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA). These new laws are designed to modernize legal procedures, address current societal issues, and enhance the protection of citizens.
On July 1, 2024, India marked a new chapter in its criminal justice history by replacing three key laws that is the Indian Penal Code (IPC) of 1860, the Code of Criminal Procedure (CrPC) of 1973, and the Indian Evidence Act of 1872.
Bharatiya Nyaya Sanhita (BNS)
The Bharatiya Nyaya Sanhita (BNS) replaces the Indian Penal Code (“IPC”) and introduces several new provisions, focusing on modernization and improving the efficiency of legal processes. Below is a chapter-wise breakdown of the significant changes introduced by the BNS:
Chapter 1: General Provisions
The BNS updates the language to be more contemporary and accessible, making it easier for the common person to understand legal terminologies. Legal provisions have been consolidated and clarified to eliminate ambiguities, while procedural delays are addressed through streamlined processes. This chapter also sets the stage for victim-centered reforms, enhancing their rights throughout legal proceedings.
The use of digital evidence, online trials, and the inclusion of technology in legal processes is a key feature. This is aligned with international conventions and other modern laws, ensuring that the Indian legal system is up-to-date.
Chapter 2: Offenses and Punishments
The BNS reduces the total number of sections from 511 (in the IPC) to 358. Similar offenses are grouped together, providing a more structured and logical legal framework.
New provisions have been introduced to deal with cybercrimes, and offenses related to the protection of women and children have been updated. Eight new sections have been added, while 22 outdated sections have been removed.
The penalties for various crimes have been increased to match contemporary standards. This includes higher fines and stricter punishments for severe crimes such as rape and offenses against women and children.
Chapter 3: Special Provisions
A renewed focus on victims' rights is evident, with provisions ensuring faster trials, better legal protection, and rehabilitation.
The BNS has introduced new offenses to address crimes that have emerged in modern times, such as cybercrime and sexual offenses under false promises of marriage.
Comparing the BNS with the IPC: What’s Changed?
1. Sedition (Section 124A of IPC vs. Section 150 of BNS)
· Under the IPC, Section 124A dealt with sedition, criminalizing acts that incited disaffection against the government. This provision was widely criticized for suppressing dissent and limiting freedom of speech.
· In the BNS, Section 150 replaces the old sedition law with a broader offense that targets actions threatening the integrity and sovereignty of India. This new section covers a wider range of activities that could undermine national security, addressing concerns that the IPC’s sedition law was too restrictive.
2. Snatching (New Offense)
· Section 304(1) of the BNS now classifies snatching as a distinct offense, separate from theft, and imposes a penalty of up to three years in prison. The IPC did not specifically define snatching, treating it under broader theft provisions.
· This change highlights the seriousness of snatching, recognizing the unique aspects of the crime, such as the use of force or intimidation, which were not clearly addressed in the IPC.
3. Sexual Activity under False Promise of Marriage (New Provision)
Section 69 of the BNS criminalizes engaging in sexual activity under false promises of marriage, imposing penalties of up to 10 years in prison. The IPC did not have a specific provision for such offenses, although courts occasionally addressed these under broader cheating or rape laws.
This clause protects individuals, particularly women, from exploitation, though some argue it may inadvertently penalize consensual relationships where the promise of marriage evolves.
4. Introduction of Community Service (New Punishment)
Section 4 of the BNS introduces community service as a new form of punishment for minor offenses like petty theft, public misbehaviour due to intoxication, or defamation. This represents a move towards restorative justice, focusing on rehabilitation over retribution.
The IPC relied solely on traditional punitive measures such as imprisonment or fines, without including community service as a potential punishment.
5. Gender-Neutral Protection Against Sexual Assaults
Section 2(10) of the BNS expands the definition of gender to include all individuals, including transgender persons, ensuring broader legal protections.
The IPC, with its binary framework, primarily addressed sexual crimes in terms of male perpetrators and female victims, leaving a gap in protection for transgender individuals. The BNS’s gender-neutral approach reflects modern understandings of identity and provides inclusive protection.
6. Mob Lynching as a Separate Offense (New)
Section 103(2) of the BNS defines mob lynching as a distinct crime, with severe penalties including death or life imprisonment. This section specifically addresses violence motivated by biases such as race, caste, or religion.
The IPC treated all murders under general provisions (Section 302) and did not differentiate between individual and collective bias-driven violence. The BNS addresses this gap, recognizing mob lynching as a distinct and serious offense.
7. Hit-and-Run Incidents (New Provision)
Section 106(2) of the BNS criminalizes hit-and-run incidents, imposing up to ten years of imprisonment for drivers who cause fatal accidents and flee the scene. The provision reflects the seriousness of both reckless driving and evading responsibility.
In contrast, the IPC lacked specific provisions for hit-and-run cases, addressing such incidents under broader negligence laws like Section 304A (causing death by negligence) and Section 279 (rash driving), without directly addressing the act of fleeing the scene.
8. Punishment for Child Rape (Continuing Framework)
Both the IPC and BNS impose the death penalty for the rape of a child. The IPC’s Sections 375 and 376, amended by the Criminal Law (Amendment) Act, 2013, introduced the death penalty for extreme cases of rape.
Section 64 of the BNS continues this approach, aligning with current legal and societal expectations for strict penalties in child rape cases.
Reflection on the Old Law:
The Indian Penal Code (IPC) of 1860 was a colonial-era law that remained largely unchanged for over a century, despite significant societal, technological, and legal developments. While it laid the foundation for modern Indian criminal law, its provisions became outdated in addressing contemporary issues such as cybercrime, gender identity, and collective violence (e.g., mob lynching).
Judicial reforms, societal changes, and the need for more victim-centric, inclusive, and technologically aligned laws were key reasons for replacing the IPC with the Bhartiya Nyaya Sanhita.
Bharatiya Nagarik Suraksha Sanhita (BNSS)
The Bhartiya Nagarik Suraksha Sanhita (BNSS) replaces the Code of Criminal Procedure (CrPC), marking a significant modernization of India's criminal justice framework. The BNSS expands the scope of legal procedures, incorporating new definitions, updates, and streamlined processes for greater transparency and efficiency. With 533 sections, the BNSS revises 160 existing sections, introduces 9 new ones, and repeals 9 others, aligning the law with contemporary legal needs.
Below is a breakdown of the key changes introduced by the BNSS:
Chapter 1: General Provisions
Updated Definitions: The BNSS refines key legal terms to ensure they are in line with modern technology and practices.
Audio-Video Electronic Means [Section 2(1)(a)]: Recognizes digital communication methods like video conferencing and digital recording in legal proceedings, allowing for remote hearings.
Bail [Section 2(1)(b)]: Clarifies bail provisions to standardize the process, improving transparency.
Electronic Communication [Section 2(1)(i)]: BNSS includes provisions for emails and texts as valid evidence, bridging a gap in the CrPC.
Victim [Section 2(1)(y)]: Expands the definition of a victim to include anyone affected by a crime, even if charges have not yet been filed, accelerating access to justice and compensation.
Chapter 2: Judicial Hierarchy and Structure
Simplified Judicial Structure: The BNSS overhauls the old judicial hierarchy, consolidating roles for improved efficiency.
Judicial Magistrate of the Second Class: Absorbs the powers of the abolished Judicial Magistrate of the Third Class, handling minor offenses with expanded authority.
Sessions Judges: Take over the duties of the abolished Assistant Sessions Judges, consolidating responsibilities for serious offenses.
What Happened to JMTC Judges and Cases?: Judges are either transitioned into new roles or administrative positions, while cases are reassigned to ensure smoother case flow.
· Comparison of Old and New Judicial Hierarchies[SM2]
| BNSS 2023
| ||
Judicial Magistrate of the Third Class (JMTC) | Judicial Magistrate of the Second Class | ||
Judicial Magistrate of the Second Class | Judicial Magistrate of the Second Class (with expanded powers) | ||
Judicial Magistrate of the First Class | Judicial Magistrate of the First Class (including Chief and Additional Chief Judicial Magistrates) | ||
Metropolitan Magistrates | Merged with Judicial Magistrates of the First Class | ||
Assistant Sessions Judges | Abolished; roles merged with Sessions Judges | ||
Sessions Judges | Sessions Judges (retained with full authority over serious offenses) | ||
Executive Magistrates |
|
Chapter 3: Directorate of Prosecution
Centralized Prosecution System [Section 20]: BNSS introduces a Directorate of Prosecution, led by a Director of Prosecution, to oversee high-stakes cases and ensure a uniform approach.
District Directorate: Ensures local prosecution management, improving accountability.
Assistant Director of Prosecution: Manages minor cases, ensuring they are processed efficiently.
Chapter 4: Sentencing Reforms
Increased Fine Limits [Section 23]: Fine limits for magistrates are significantly increased, reflecting current economic realities.
Magistrates of the First Class can now impose fines up to ₹50,000, while Second Class Magistrates can impose fines up to ₹10,000.
Introduction of Community Service [Section 23]: BNSS introduces community service as an alternative punishment, promoting rehabilitation over incarceration for minor offenses.
Chapter 5: Protection for Vulnerable Groups
Elderly and Infirm Protections [Sections 35(7) & 179(1)]: BNSS prevents the arrest of elderly or infirm individuals for minor offenses without special authorization, and allows elderly witnesses to give testimony from home, safeguarding their well-being.
Chapter 6: Modernizing Summons and Evidence Collection
Electronic Summons [Sections 63, 64, 70]: Summons can now be issued via email and other digital platforms, speeding up legal notifications and improving accuracy.
Gender-Neutral Summons [Section 66]: Removes the gender bias present in the CrPC, allowing any adult, regardless of gender, to receive summons.
Chapter 7: Reforms in Digital Evidence Handling
Admissibility of Electronic Evidence [Section 94]: Expands the scope of admissible digital communications and the devices that store such data, ensuring comprehensive evidence collection in the digital age.
Videography of Search and Seizure [Section 105]: Mandates the use of videography during searches, creating a verifiable record and reducing evidence tampering.
Chapter 8: Police Reforms
Handling of Non-Compliant Individuals [Section 172]: Establishes a framework for detaining individuals who resist lawful directives, ensuring judicial oversight and preventing unnecessary detention.
Zero FIR and e-FIR [Section 173]: Introduces Zero FIR and electronic FIRs, allowing complaints to be filed regardless of jurisdiction and through digital means.
Comparing the BNSS with the CrPC: What’s Changed?
1. Introduction of Zero FIR and e-FIR (Section 173):
CrPC: FIRs had to be filed in the police station under whose jurisdiction the crime occurred, leading to delays in urgent cases.
BNSS: The concept of Zero FIR allows an FIR to be filed in any police station, regardless of the crime’s location. Additionally, e-FIR enables individuals to file FIRs online, improving accessibility and speeding up the complaint process.
2. Use of Technology in Summons (Sections 63, 64, 70):
CrPC: Summons were issued in physical form and served manually, which often caused delays.
BNSS: Allows summons to be issued electronically via email or other digital platforms, speeding up legal processes and increasing transparency.
3. Expanded Admissibility of Digital Evidence (Section 94):
CrPC: Lacked specific provisions on handling digital or electronic evidence, relying on general evidence rules.
BNSS: Explicitly includes provisions for the admissibility of digital evidence like emails, text messages, and social media interactions, recognizing the evolving nature of communication.
4. Videography of Search and Seizure (Section 105):
CrPC: Search and seizure processes were documented manually, with no mandatory videography, which could lead to disputes about evidence tampering.
BNSS: Mandates the use of videography during search and seizure operations to ensure transparency and create a verifiable record of the process.
5. Introduction of Community Service (Section 23):
· CrPC: Relied on imprisonment and fines as the main forms of punishment.
BNSS: Introduces community service as an alternative punishment for minor offenses, focusing on rehabilitation rather than punitive measures.
6. Gender-Neutral Summons (Section 66):
CrPC: Only allowed a "male member of the family" to receive a summons.
BNSS: Modernizes this by removing gender bias, allowing any adult member of the family to receive a summons, promoting gender equality.
7. Clarified Bail Provisions (Section 2(1)(b)):
CrPC: While bail was defined, the process was sometimes inconsistent across cases.
BNSS: Clarifies and standardizes the conditions for bail, improving transparency in bail proceedings.
8. Victim-Centric Reforms (Section 2(1)(y)):
CrPC: Defined "victim" narrowly, often limiting rights to individuals only after formal charges were filed.
BNSS: Broadens the definition of "victim," allowing for earlier involvement in the legal process and quicker access to compensation.
9. Simplified Judicial Hierarchy:
CrPC: Had multiple layers in the judiciary (e.g., Judicial Magistrate of the Third Class), which led to delays and overlapping duties.
BNSS: Consolidates the judicial hierarchy, eliminating certain positions like the Judicial Magistrate of the Third Class and streamlining case management for faster justice.
10. Improved Protections for the Elderly and Infirm (Sections 35(7) & 179(1)):
CrPC: Did not offer specific protections for elderly or infirm individuals during arrests or court proceedings.
BNSS: Introduces provisions preventing the arrest of elderly individuals for minor offenses without authorization and allows elderly witnesses to give testimony from their homes.
Reflection on the Old Law:
· The Code of Criminal Procedure (CrPC) of 1973 was a post-colonial law that established the procedural framework for criminal justice in India. While it provided a comprehensive legal structure, it became increasingly outdated over the years, especially in addressing advancements in technology, evolving social norms, and the complexity of modern-day crimes. Its reliance on manual processes and physical documentation slowed down legal proceedings and created inefficiencies in case management.
· As society advanced, the CrPC struggled to keep up with issues like the handling of digital evidence, the need for quicker and more transparent processes (e.g., Zero FIR, e-FIR), and the growing demand for a victim-centric approach in the legal system. The absence of technological integration and the need for streamlined judicial hierarchies highlighted the gap between the old law and modern legal challenges.
· Judicial reforms, the digitization of evidence and procedures, and the need for a more victim-focused, efficient, and technologically advanced criminal justice system were the driving factors behind replacing the CrPC with the Bharatiya Nagarik Suraksha Sanhita (BNSS). The BNSS addresses these gaps, ensuring that the legal framework aligns with current societal and technological developments.
Bharatiya Sakshya Adhiniyam (BSA)
The Bharatiya Sakshya Adhiniyam (BSA), 2023 replaces the Indian Evidence Act, 1872, reflecting significant changes aimed at modernizing the legal framework for handling evidence in India. With 170 sections (up from 167), this Act includes 1 new section, revisions to 23 sections, and the repeal of 5 sections. One of the most critical advancements introduced by the BSA is the formal recognition of digital and electronic evidence, which marks a notable shift in how modern court procedures are conducted.
Below is a breakdown of key features introduced by the BSA:
Chapter 1: Modernization of Evidence Handling
Digital and Electronic Evidence:
The BSA, 2023 comprehensively expands the definition of "documents" to include digital records such as emails, SMS, server logs, websites, and data from computers and smartphones. This contrasts with the Indian Evidence Act, 1872, which lacked clarity on the admissibility of such electronic evidence.
Under Section 65B, digital evidence is now considered primary evidence, simplifying its use in court, compared to the stringent conditions that applied to electronic records as secondary evidence under the Indian Evidence Act.
Digitization of Legal Records:
The BSA mandates the digitization of legal records, including FIRs, charge sheets, case diaries, and judgments, ensuring easier access and preservation. This move strengthens record management and provides greater transparency.
Chapter 2: Confessions and Constitutional Safeguards
Confessions in Police Custody:
The BSA introduces flexibility in admitting confessions made in police custody, provided they meet certain reliability standards. This provision could, however, raise concerns about conflicts with Article 20(3)(protection against self-incrimination) and Article 21 (right to a fair trial) of the Constitution.
The Act must strike a balance between enhancing the admissibility of confessions while safeguarding against coerced statements, following the principles established in landmark cases like D.K. Basu v. State of West Bengal (1997).
Chapter 3: Alignment with Technological Laws
Accordance with the IT Act, 2000:
Section 63 of the BSA is expanded to include terms like "semiconductor memory" and "communication devices," ensuring consistency with the Information Technology Act, 2000, and modernizing the framework for digital evidence across various laws.
Chapter 4: Reforms in Joint Trials
Joint Trial (Section 30):
The BSA clarifies that confessions made by one accused can still be used in joint trials, even if one accused is absent or does not respond to arrest orders, ensuring that trials proceed efficiently without undue delays.
Chapter 5: Judicial Precedents on Electronic Evidence
Supreme Court Judgments:
The Supreme Court's ruling in Anvar P.V. v. P.K. Basheer (2014) emphasized the necessity for stringent conditions to ensure the reliability of electronic evidence. This landmark decision directly influenced the BSA’s provisions on digital records.
The Act builds on judicial pronouncements that emphasize protecting the accused from coercion and ensuring the authenticity of digital evidence through a reliable chain of custody.
Chapter 6: Addressing Concerns and Safeguards
Chain of Custody for Digital Evidence:
The BSA introduces guidelines to protect the integrity of digital evidence, emphasizing the importance of a well-documented chain of custody to prevent tampering or manipulation. This addresses long-standing concerns raised by judicial bodies and investigative agencies.
Chapter 7: Key Changes in Handling of Digital Evidence
Introduction of Forensic Safeguards:
The BSA implements recommendations from the Karnataka High Court’s 2021 guidelines, which outline the need for forensic experts during digital searches and the use of Faraday bags to protect seized electronic devices from tampering.
This ensures that electronic evidence is handled with the necessary precautions, particularly in sensitive cases involving cybercrime.
Chapter 8: Actions for Effective Implementation
Enforcement Recommendations:
The Standing Committee on Home Affairs (2023) highlighted the need for stronger protections around the authenticity and integrity of digital records. Recommendations include the proper training of enforcement agencies in handling digital evidence and ensuring encryption methods are used to protect sensitive data.
Following the Law Commission’s 2003 recommendations, the BSA also suggests provisions to hold police officers accountable for any harm caused to individuals in custody, placing the burden of proof on the authorities in cases of injury.
Comparing the BSA with the Indian Evidence Act, 1872: What’s Changed?
1. Admissibility of Digital Evidence:
Indian Evidence Act, 1872: Digital evidence was not explicitly defined or widely admissible. While Section 65B allowed for electronic records, the conditions for admissibility were stringent, requiring certification and other documentation, making the process complex.
BSA, 2023: Digital evidence (e.g., emails, SMS, server logs, websites) is now considered primary evidence, making it much easier to admit electronic records in court. The BSA reduces the stringent conditions required for electronic records, aligning it with modern needs.
2. Expansion of the Definition of Documents:
Indian Evidence Act, 1872: The definition of documents was limited to physical records and did not account for the digital age.
BSA, 2023: The definition of documents is expanded to include electronic records, such as data stored on smartphones, computers, and cloud services. This change reflects the importance of digital communication and records in modern legal proceedings.
3. Recognition of Electronic Communication Devices:
Indian Evidence Act, 1872: The act did not address the use of modern electronic communication devices (e.g., smartphones, laptops) for collecting and presenting evidence.
BSA, 2023: The new law explicitly recognizes digital communication devices and integrates terms like semiconductor memory and communication devices (as seen in Section 63), ensuring that evidence from such devices is treated uniformly under the law.
4. Digitization of Legal Records:
Indian Evidence Act, 1872: Legal records, including FIRs, charge sheets, and court records, were primarily managed in physical form, leading to issues in accessibility, storage, and preservation.
BSA, 2023: Mandates the digitization of legal records, ensuring easier access, better storage, and reduced chances of tampering or loss of records. It streamlines case management, making legal procedures more efficient.
5. Confessions in Police Custody:
Indian Evidence Act, 1872: Confessions made in police custody were largely inadmissible, as the focus was on preventing coerced confessions and protecting the rights of the accused.
BSA, 2023: Introduces some flexibility, allowing certain confessions made in police custody to be admissible under certain safeguards. However, this provision raises concerns about the protection against self-incrimination under Article 20(3) of the Constitution.
6. Chain of Custody for Digital Evidence:
Indian Evidence Act, 1872: The act did not provide clear guidelines for handling the chain of custody for electronic records, which led to questions of authenticity and potential tampering.
BSA, 2023: Introduces detailed guidelines to ensure the integrity and preservation of digital evidence. It mandates a clear chain of custody to prevent manipulation and tampering, which is crucial in maintaining the reliability of electronic evidence.
7. Joint Trial Procedures:
Indian Evidence Act, 1872: Joint trial provisions allowed the confession of one accused to be used against others, but it was ambiguous when one of the accused was absent or unavailable.
BSA, 2023: Clarifies that a joint trial remains valid even if one accused is absent or fails to respond to an arrest order, ensuring continuity of the legal process.
8. Use of Forensic Tools and Technology:
Indian Evidence Act, 1872: Forensic technology, such as the use of videography during searches or the inclusion of digital forensic examiners, was not part of the original law.
BSA, 2023: Emphasizes the use of modern forensic tools, including videography of search and seizure operations, to enhance transparency and credibility during investigations.
9. Alignment with the IT Act, 2000:
Indian Evidence Act, 1872: Did not account for the rapid advancements in information technology, as it was crafted before the digital revolution.
BSA, 2023: Aligns with the IT Act, 2000, ensuring consistent legal treatment of electronic records and devices across different legal frameworks.
10. Increased Focus on Cyber-Related Offenses:
Indian Evidence Act, 1872: Was not equipped to handle the complexities of cybercrime or offenses involving digital platforms.
BSA, 2023: Introduces provisions for effectively handling cyber-related offenses, ensuring the courts can efficiently address crimes involving digital platforms and electronic communication.
Reflection on the Old Law:
The Indian Evidence Act, 1872 served as the foundational framework for evidentiary rules in Indian courts for over a century. While it was revolutionary for its time, it gradually became outdated due to the rapid advancements in technology and the evolving nature of crimes. Its provisions were designed for a pre-digital era, leading to significant challenges in addressing modern issues such as electronic communication, digital evidence, and cybercrime.
Lack of Digital Evidence Provisions: The Indian Evidence Act, 1872 did not anticipate the use of digital records or electronic communication, which have now become essential components of legal proceedings. Section 65B, which dealt with electronic records, imposed stringent conditions for admissibility, making the process of presenting digital evidence complex and time-consuming.
Inflexibility in Handling Modern Communication Devices: The old law did not account for modern electronic devices such as smartphones, laptops, and other communication tools. This gap hindered the collection and presentation of key digital evidence, leaving courts to rely on outdated interpretations of evidence laws.
Physical Documentation and Procedural Delays: The reliance on physical documentation created inefficiencies in legal processes. The absence of a framework for the digitization of legal records, such as FIRs and charge sheets, led to issues with storage, preservation, and accessibility, often delaying justice.
Limited Recognition of Forensic Tools and Technology: Forensic tools such as videography of searches and digital forensic examiners were not addressed under the Indian Evidence Act, 1872, making investigations less transparent and prone to errors.
Challenges in Cybercrime: The old law lacked provisions for handling cyber-related offenses, which have become increasingly prevalent with the advent of the internet and digital platforms. The absence of a framework to address crimes involving electronic communication or digital platforms left a significant gap in the criminal justice system.
The Bharatiya Sakshya Adhiniyam (BSA), 2023 addresses these shortcomings by modernizing evidence laws to include digital records, enhancing the admissibility of electronic evidence, and incorporating forensic tools and cybercrime-related provisions. These changes reflect the need to bring India's evidentiary laws in line with contemporary legal and technological advancements.
Reference
Statute
1. Bharatiya Nyaya Sanhita Act, 2023 (India) - replacing the Indian Penal Code, 1860.
2. Bharatiya Nagarik Suraksha Sanhita Act, 2023 (India) - replacing the Code of Criminal Procedure, 1973.
3. Bharatiya Sakshya Adhiniyam Act, 2023 (India) - replacing the Indian Evidence Act, 1872.
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