Fulfilling a pledge in parliament, the government swept aside the three foundations of Indian criminal law, the Criminal Procedure Code, 1973 (CrPC), the Indian Penal Code, 1860 (IPC), and the Indian Evidence Act, 1872 (IEA). These have been replaced by three new legislations passed into law in December 2023, which took effect on 1 July 2024. They are the new code of criminal procedure, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the new penal code, the Bharatiya Nyaya Sanhita, 2023 (BNS) and the new evidence act, the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Compared to the repealed CrPC, the BNSS is intended to infuse the criminal justice system with the speed and efficiency of the digital age in which we live. The BNSS redefines key terms such as bail, bail bond, bond, audio-video electronic means and electronic communication, most of which were absent in the previous code. This reflects the government's emphasis on clarity and efficiency through the use of technology. First information reports (FIR) can now be registered electronically on the basis of information regarding the commission of a cognizable offence, irrespective of the jurisdiction within which the offence was committed. A cognizable offence is one for which the police may arrest without a warrant. The BNSS categorises offenders as either first-time or repeat, facilitating leniency in plea bargaining. It lays down timelines for the completion of inquiries, investigations, drafting charges and the delivery of judgments. These will streamline the criminal justice system. Only time will tell how successful this experiment will be.
Under the new penal code, the BNS, there is greater emphasis on pursuing offences against women and children, and tackling organised crime and terrorist acts. Most other offences formerly included in the IPC are incorporated into the BNS with little or no change in definition or punishment. The BNS introduces, for the first time, community service as punishment for certain offences such as defamation and theft. The BNS also penalises the abetting of an offence committed in India by a person outside India. From the corporate perspective, little seems to have changed.
In contradistinction to the IEA, the BSA contains no provision restricting the applicability of the act to the territory of India. The objective behind this omission is, it appears, to enable the admissibility of electronic and digital evidence generated outside India. Moreover, under the new definition of evidence in section 2(1)(e) of the BSA, statements including those given electronically are to be treated as evidence in the same way as oral evidence. This puts electronic communication on the same basis as statements recorded in person. This will benefit companies and officials outside India by enabling them to prosecute cases and tender evidence in India without having to be physically present in the country.
Although the new criminal laws are now in effect, their applicability to offences registered before they came into force has raised a legal conundrum. The courts are facing issues in determining the applicable law when an FIR is registered prior to 1 July 2024 but the investigation, inquiry or trial continues thereafter. Various High Courts have taken different views in this regard. The Rajasthan High Court inKrishna Joshi v State of Rajasthan and Ors held on 9 July that the applicable law was that on the date of registration of the FIR, that was the CrPC. A divergent view was taken by the Punjab and Haryana High Court in Abhishek Jain v State of U.T. Chandigarh & Anr, which held that while an FIR had been registered long before 1 July 2024 under the IPC, any petition filed after that date could not be heard under the provisions of the CrPC as that statute was no longer in force.
It has to be seen how the courts will decide these issues to ensure certainty and consistency in the implementation of these laws. It is to be hoped that the appellate courts rule consistently on these teething issues. Amnesty India has already criticised the laws for reintroducing sedition and extending custody powers. The overall changes introduced by the new laws certainly do represent a step on the path towards modernity but fall short of completely updating the existing criminal justice system.
Originally published by Indian Business Law Journal (IBLJ), 31 July 2024
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