Decoding the (New) Criminal Laws
The Union government has initiated the much-needed overhaul of the criminal laws governing the country. On 11th August 2023, the following Bills were introduced in the Lok Sabha to replace the existing criminal laws:
Bharatiya Nyaya Sanhita Bill 2023
Bharatiya Sakshya Bill 2023
Bharatiya Nagarik Suraksha Sanhita Bill 2023
TO REPLACE (ACT)
Indian Penal Code 1860 (IPC)
Indian Evidence Act 1872
Criminal Procedure Code 1973 (CrPC)
An insight into the proposed Bills.
BHARATIYA NYAYA SANHITA BILL 2023
The Bill (“Nyaya Bill”) seeks to replace the Indian Penal Code 1860. Simply known as the IPC, it has been in existence since 1st January 1862 when it came into force.
The IPC provides a uniform criminal procedure code governing criminal offences across the country. The code streamlines provisions relating to offence and penalties.
The Nyaya Bill retains several parts of the IPC and replaced certain parts. A look at the highlights of the proposed amendments:
The controversial “Sedition” provision has been removed. Instead, the Bill has stated that the following acts shall be penalized:
– Exciting or attempting to excite secession, armed rebellion
– Encouraging separatist activities
– Endangering sovereignty or unity and integrity of India
Such activities would be liable for punishment between 7 years up to life imprisonment such activities will include verbal, written communication and or financial resources.
- Organized crime(s)
The Bill expressly defines organised crime to include any continuing unlawful activity including:
– Vehicle theft
– Land grabbing
– Contract killing
– Economic offences
– Cyber-crimes having severe consequences
– Trafficking in people, drugs, illicit goods or services and weapons
– Human trafficking racket for prostitution or ransom by the effort of groups of individuals acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit.
Punishment for such offences:
– If it results in death of any person – death or life imprisonment.
– Other cases – imprisonment between 5 years and life imprisonment along with fine
The Bill has included economic offences under the ambit of organized crime.
- Petty organized crime(s)
Petty Organised crimes are those which instil a general feeling of insecurity amongst citizens relating to:
– Theft of vehicle or theft from vehicle
– Domestic and business theft, trick theft, cargo crime
– Theft (attempt to theft, theft of personal property)
– Organised pick pocketing, snatching
– Theft through shoplifting or card skimming and Automated Teller Machine (ATM) thefts.
– Or procuring money in unlawful manner in public transport system or
– Illegal selling of tickets and selling of public examination question papers and such other common forms of organised crime committed by organised criminal groups or gangs, shall constitute petty organised crimes and shall include the said crimes when committed by mobile organised crime groups or gangs that create network of contacts, anchor points, and logistical support among themselves to carry out number of offences in region over a period before moving on.
Punishment for such offences: imprisonment of up to 7 years plus fine.
- Offences against women and children
– Gang rape of minor below 18 years will attract life imprisonment along with fine or death penalty; (The IPC contained below 12 years of age)
– Though marital rape has not been defined in the Bill, sexual intercourse using deceit or on false promise of marriage will attract up to 10 years of imprisonment.
– Importing (i) girls under 21 years of age (ii) boys under the age of 18 years of age for illicit intercourse with another person will be an offence.
- Increased quantum of punishment
– If a murder is committed by 5 or more people on grounds of race, caste, gender, language, birthplace, personal believes, they shall be punishable with imprisonment between 7 years and life imprisonment and or death along with fine.
– Punishment for terrorism or attempting terrorism
– Punishment for attempting or committing terrorism
If such act(s) resulted in death – punishment will include death or life imprisonment. In other cases – imprisonment between 5 years up to life imprisonment. Additionally, fine of at least Rs. 5 lakhs will be levied.
BHARATIYA SAKSHYA BILL 2023
The Bill (“Sakshya Bill”) seeks to replace the Indian Evidence Act 1872 (“Evidence Act”). Simply known as the Evidence Act, it has been in existence since 1st September 1872 when it was enacted and has remained in force since.
The Evidence Act governs the admissibility of evidence in all legal / judicial proceedings.
The Sakshya Bill retains several parts of the Evidence Act and replaced certain parts. A look at the highlights of the proposed amendments:
Types of evidence:
Two kinds of evidence are being included for the purpose of the Evidence Act –
(i) Documentary – including:
- information maintained electronically as electronic records that have been printed or stored optically or magnetic media produced by a computer (such as hard disk drives – HDD, audio video content, floppies, disks etc)
- information stored in semiconductor memory or any communication devices (smartphones, laptops). This will also include records on emails, server logs, smartphones, locational evidence, and voice mails.
- Information that may have been created on, stored in or processed by one or more computers or communication devices either as standalone systems or on a computer network or through an intermediary.
(ii) Oral – includes statements made before Courts by witnesses in relation to a fact under inquiry. Any information given electronically will be considered as oral evidence.
(iii) It is to be noted that documentary evidence includes primary and secondary evidence. While primary evidence are the original documents and or parts thereof, secondary evidence are documents / records that prove the existence of the original documents.
(iv) The Sakshya Bill expands the ambit of secondary evidence to include: (a) oral and written admissions, and (b) the testimony of a person who has examined the document and is skilled in the examination of documents.
(v) Secondary evidence is required in cases when the original documents are in possession of the person against whom it is sought or has been destroyed. The Sakshya Bill adds that secondary evidence documents may be sought when the genuineness of the original document is itself in question.
(vi) The Sakshya Bill states that electronic or digital records will have the same legal effect as paper documents / records.
Producing documents in courts and exemptions:
The Evidence Act states that if a witness is asked to produce a document and he/she has it in his / her possession, they must bring it to court irrespective of any objection its production in court or its admissibility. It is for the court will determine the validity of such document. The Sakshya Bill adds that no court will require any privileged communication between ministers and the President to be produced before the court. The Bill makes the exemption for production of such document(s).
Joint trial of more than one person for the same offence:
When more than one person is tried for the same offence, a joint trial will be conducted. The Evidence Act states that if a confession is made by one such accused which, if proven, affects the other accused, it will be considered as confession against both. The Sakshya Bill further adds an explanation to the effect that a trial involving multiple persons if an accused is absconding or not responded to an arrest warrant. It will be treated as a joint trial.
- The Evidence Act states that if any confession was made by an accused person by inducement, threat or promise, such confession will be considered irrelevant. The Sakshya Bill includes two now provisos to the existing Act –
(i) If the inducement, threat, coercion, promise has in the opinion of the court been fully removed, then the said confession will become relevant.
(ii) A confession does not become irrelevant merely because it was made.
- Under promise of secrecy, or
- in consequence of deception practice used for obtaining the confession or
- when he was drunk or
- in answers to questions which need not have been answered or
- if the accused was not warned that evidence might be given against him.
- The Evidence states that confession made by any accused person in custody to police officer shall not be considered confession unless made in the presence of a Magistrate. The Sakshya Bill states any information made by the accused person in custody to a police officer can be used for further purpose of investigation or corroboration of evidence against him.
Presumption of documents:
- The Evidence Act contains details of admissibility in England. Being an old archaic provision, the Sakshya Bill does not contain this clause. It has been entirely removed.
- maps or plans,
- every book printed / published containing any laws and reported court decisions,
- every Power of attorney executed and authenticated before a notary public, Court, Judge , Magistrate, Indian Consul / vice consul or representative of central government, The Court shall presume that made by Central or State government authority shall be considered accurate, but all others must be proved to be accurate.
- Every electronic agreement record purporting to be an agreement containing digital signature of parties was concluded by affixing their digital signatures as such.
Opinion of experts:
The Evidence Act states that when a Court must form an opinion on a point of foreign law or science or art or identify handwriting or finer impressions, opinions of persons skilled in such aspects will be considered relevant facts and such persons are called experts. The Sakshya Bill further adds that when an opinion must be formed on any matter relating to information transmitted or stored in any computer resource or electronic or digital form, the opinion of the Examiner of Electronic Evidence u/s 79A of the Information Technology Act 2000 would be considered relevant as such examiner shall be considered an expert.
BHARATIYA NAGARIK SURAKSHA SANHITA BILL 2023
The Bill (“Nagarik Suraksha Bill”) seeks to replace the Code of Criminal Procedure 1973. Simply known as “CrPC”, it has been in existence since 1st April 1974 after being enacted in 1973.
The CrPC contains multifarious provisions relating to conduct of fair trial in accordance with principles of natural justice.
The Nagarik Suraksha Bill contains provisions relating to streamlining timelines and procedures for conducting trial of criminal proceedings. Further the Bill includes provisions relating to e- investigation or electronic investigation in the course of collecting evidence, trial and enquiry.
A look at the key amendments:
The Bill introduced the following definitions:
- “audio-video electronic” means shall include use of any communication device for the purposes of video conferencing, recording of processes of identification, search and seizure or evidence, transmission of electronic communication and for such other purposes and by such other means as the State Government may, by rules provide;
- “investigation” includes all the proceedings under this Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
The Bill includes the following Explanation.—Where any of the provisions of a special Act are inconsistent with the provisions of the Bill / Act, the provisions of the special Act shall prevail.
- Directorate of Prosecution
The Bill introduces the provision for appointment of State wise Directorate of Prosecution consisting of:
Director of Prosecution – to monitor cases in which offences are punishable for 10 years or more, or with life imprisonment, or with death; to expedite the proceedings and to give opinion on filing of appeals.
Deputy Directors – examine and scrutinise police report and monitor the cases in which offences are punishable for 7 years or more, but less than 10 years, for ensuring their expeditious disposal.
Assistant Director – monitor cases in which offences are punishable for less than 7 years.
The above officers shall have powers and function as may be prescribed by the State government.
These provisions do not apply to Advocate General for the State while performing functions of a Public Prosecutor.
The Bill includes that
- A police officer can use handcuffs when arresting a person accused who is a habitual offender and keeping in mind the gravity and nature of the crime including but not limited to drug, terrorist activity, human trafficking, sexual offence against children.
- Any private person may arrest or cause to be arrested by any person, who is such person’s presence commits a non bailable cognizable offence. However, such person has to , within 6 hours, hand over such accused to the police or in police officers’ absence give him to the custody of the nearest police station.
- In the event of the arrest of a woman, it is the duty of the police to inform her relatives about the whereabouts of her place of detention.
- CrPC states that if an accused has spent more than half of his punishments period being an under trial (awaiting trial) then the court must release him on bail. This does not apply to offences punishable with death sentence. The Bill adds further exceptions to this provision –
- offences punishable by life imprisonment,
- Persons against whom proceedings are pending in more than one offence.
- First time offenders who are under trials and have completed 1/3rd of their maximum punishment shall be released on bail.
The Bill introduces the provision for conducting trial, investigation, inquiry and related procedures through electronic mode – computers, laptops, mobile phones.
- Forensic investigation
The Bill introduces the provision stating that for an offence which is punishable with 7 years or more, the officer in charge shall cause forensic experts to visit the crime scene and investigate including collecting evidence and record videos on electronic devices.
- The Bill includes cheating as one of the offences of deception committed through electronic means.
- Collection of specimen handwriting and other samples:
The CrPC contains provisions empowering the First-Class Magistrate to order for collection of samples of handwriting for specimen signature. The Bill includes provisions to collect other samples such as fingerprint impressions and voice samples. Such samples can be procured from persons who are not arrested as well.
- The Bill omits references and provisions relating to Metropolitan Magistrates.
- The Bill states that each State shall notify its witness protection program.
The Bill expressly prescribes timeline for various procedures. In particular, the following must be completed within –
- 7 days – Report to be given by medical practitioners who examine rape victims.
- 60 days – framing charges by sessions court after first hearing
- 30 days to 60 days – giving judgement after completion of hearing arguments.
- 90 days – inform victims of progress of investigation.
Though there were reform in criminal laws earlier, this is probably the first time that the core criminal laws have been repealed and replaced with new laws. Independent India’s new criminal laws will altogether do away with all references to the British and archaic references which are no longer relevant. Instead, the new laws will strive to keep pace with the technological advancements by including electronic offences, evidences and other procedures. Across the three laws, provisions have been streamlines, redundancies removed and an attempt has been made to make crime more accountable and punishable in India.
For Full text of Bills:
Bharatiya Sakshya Bill 2023
Bharatiya Nagarik Suraksha Sanhita Bill 2023
Bharatiya Nyaya Sanhita Bill 2023