How the 3 new criminal codes reimagine crime and punishment

The three new criminal laws – Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) are set to take effect from Monday, replacing the colonial-era Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and Indian Evidence Act.

As the Constitution marks its 75th anniversary, these new laws signify a major reform in the perception and administration of criminal laws in India. The government has announced that while the British colonial rulers implemented these laws with an intent to inflict punishment on Indian subjects, the new laws aim to render justice to citizens by overhauling the punishment and procedures applicable for the investigation and prosecution of crimes.

Technological advancements have been integrated into these new laws, incorporating several modern aids for police investigations, court trials, and closing loopholes that previously delayed justice. This includes the introduction of offences like terrorism, repeal of sedition (replaced with acts against the country), mob lynching, organised crime, and enhanced punishment for crimes against women and children. For the first time, community service has been introduced as a punishment for petty offences under BNS.

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On the investigation front, the new laws enable the registration of e-FIRs, make electronic evidence a primary proof, and set timelines for the completion of trials and the pronouncement of judgments by courts.

However, the three legislations have faced criticism on several fronts. Initially introduced in August last year and referred to the parliamentary standing committee on home affairs for review, the modified versions were reintroduced and passed in Parliament in December when 97 Opposition members were under suspension in the Lok Sabha. Many Opposition MPs have expressed concerns over the bills providing unbridled powers to the police, potentially allowing the state to weaponise these powers against individuals. The new law also retains the exemption for marital rape, an issue currently pending consideration before the Supreme Court.

New penal code

The new penal code redefines crime and punishment, including terrorism for the first time with an expanded definition covering “economic security” and “monetary stability” of the country. Organized crime and mob lynching are also newly defined offences.

A terrorist act under the revised version punishes acts intending or likely to threaten India’s unity, integrity, sovereignty, security, or economic security, or acts intended or likely to strike terror among the people. For committing a terrorist act resulting in death, the code prescribes death or life imprisonment, while other terrorist acts can result in a jail term of five years to life.

Counterfeiting currency or coins now constitutes a separate offence under BNS, particularly if such acts impact India’s monetary stability, classifying them as terrorism. Section 113 of the BNS mandates that an officer not below the rank of Superintendent of Police decides whether to register such cases under this clause or under the Unlawful Activities (Prevention) Act (UAPA).

Mob lynching, previously not a specific offence, is now punishable by death or life imprisonment if committed by a group of five or more persons on grounds such as race, caste, community, sex, place of birth, language, personal belief, or other reasons.

Organized crime, now defined and punishable under Section 111, includes a wide range of activities like kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cybercrime, drug trafficking, and human trafficking. The law also punishes petty organized crime, including chain snatching, theft, cheating, and sale of examination question papers.

The new penal code repeals sedition (Section 124A of the IPC) and replaces it with a provision involving treason, relating to acts endangering India’s sovereignty, unity, and integrity.

In crimes against women, the new law introduces provisions defining “cruelty” against women in marital relationships and penalizes the publication of court proceedings that could reveal the identity of a rape victim. Section 73 makes it a penal offence to print or publish such proceedings without court approval, with a maximum imprisonment of two years. Section 86 defines “cruelty” to include wilful conduct likely to drive a woman to commit suicide or cause grave injury, punishable by up to three years in jail.

Community service as punishment for petty offences, including criminal defamation, is a notable addition. Defined under BNSS (the new CrPC), community service benefits the community without remuneration and can be ordered by magistrates of the first and second class.

Speedy justice

To address delayed justice, the new laws introduce timelines for various procedures. BNSS requires sessions courts to frame charges within 60 days from the first hearing and deliver judgments within 30 days (extendable to 60 days) after completing arguments. Plea bargaining applications must be filed within 30 days of framing charges.

The revised BNSS mandates that medical practitioners examining rape victims submit reports within seven days to investigating officers. Victims must be informed of investigation progress within 90 days.

To avoid trial delays, BNSS allows evidence collected by retired or transferred officers to be presented by their successors. Trials can proceed in the absence of an accused declared a proclaimed offender, and judgments can be pronounced against such accused.

Technology integration includes forensic investigations for offences punishable by seven years or more, with forensic experts required to visit crime scenes and record processes. All proceedings, including trials and inquiries, are to be conducted electronically. The BSA classifies electronic records as primary evidence, enabling investigators to use information stored in electronic devices during trials.

To prevent accused individuals from manipulating police custody by getting hospitalized, BNSS allows the 15-day police custody period to be used intermittently during the initial 40 or 60 days of judicial custody.

BNSS formally introduces the zero First Information Report (FIR) concept, allowing FIRs to be filed anywhere in the country and transferred to the concerned jurisdictional police station within 15 days. The law also provides a witness protection system and extends attachment of crime proceeds to immovable property.

Scope of challenge

Last month, a vacation bench of the top court refused to entertain a petition filed by a lawyer challenging the three laws stating that it was premature as the laws were yet to come into operation. The lawyer Vishal Tiwari withdrew his plea, saving his arguments for a future date.

However, in a separate proceeding, the top court entertained a petition challenging the exception for marital rape under the BNS and other related proceedings. On May 18, a bench headed by chief justice of India (CJI) Dhananjaya Y Chandrachud sought the response of the Centre on a petition filed by All India Democratic Women’s Association challenging exception 2 to section 63 (rape) of BNS which states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

The notice by the court was issued as the constitutional challenge on the marital rape issue under IPC is already pending consideration in a batch of petitions. The petition also challenged the constitutional validity of section 67 which prescribes lesser punishment beginning from a minimum punishment of 2 years imprisonment to maximum sentence of 7 years. Along with it, validity of Section 221 of the BNSS that prohibits a court from taking cognizance of the offence under rape without “prima facie satisfaction of the facts which constitute the offence upon a complaint by the wife”.

When the revised bills were passed in Parliament, some Opposition MPs raised concerns about the new laws giving wide powers to the police and fostering a police state, particularly regarding the broad definitions of terrorism and organized crime under BNS. Union Home Minister Amit Shah countered these concerns, claiming that on many fronts, police powers have been curtailed.

During parliamentary discussions, Shiromani Akali Dal’s Harsimrat Kaur Badal highlighted a human rights issue in the new law, which restricts mercy petition applications on behalf of death row convicts to family members. AIMIM’s Asaduddin Owaisi cited data showing a disproportionate number of undertrials in Indian prisons are Muslims. He argued that despite the repeal of sedition, Section 152 of BNS, dealing with secession or armed rebellion, revives it to some extent.

Shah defended the laws, emphasizing the distinction between Rajdroh (against the government) and Deshdroh (against the country), asserting that while protesting against the government is a right, speaking against the country’s interests will not be tolerated. Shah also mentioned provisions requiring police to inform relatives of arrested individuals and provide investigation updates within 90 days.

The effectiveness of these new laws will ultimately be tested on the ground. While judges, prosecutors and police are being trained on the new laws, their real impact will be seen in their implementation and enforcement. The coming months will be crucial in determining how these reforms translate into the justice delivery system and whether they fulfil their promise of rendering justice to Indian citizens.