The cog to reform the criminal laws in India started turning in 2020 with the formation of a Committee for Reforms in Criminal Laws (CRCL). The process took its final turn when recently, on August 11, 2023, the Home Minister introduced in the Lok Sabha (lower house of Indian Parliament) 3 bills to completely overhaul the centuries-old Indian Penal Code, 1860 Code of Criminal Procedure 1973 (originally 1898) and Indian Evidence Act 1872 and replace them with Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Sakshya Bill, 2023 respectively. The step was hailed by many, including various academicians and scholars. At the same time, few remained critical regarding it, calling it unnecessary and futile to replace century-old intact laws, thereby disturbing the vast criminal jurisprudence. The Bills have been referred to a parliamentary standing committee for further examination.
This piece will explore the key changes in the newly proposed codes and actions.
THE BHARTAIYA NYAYA SANHITA, 2023
The Bharatiya Nyaya Sanhita has 356 Sections, with 175 sourced from the Indian Penal Code having undergone alterations and modifications, 22 being repealed, and 8 new Sections being introduced. The new code has also introduced “community service” as a new form of punishment for petty offences.
Language change
The new code extends the definition of male pronouns to cover men, women and “transgender” as defined under the Transgender Persons (Protection of Rights) Act, 2019. The phrase “mental illness”, as defined under the Mental Healthcare Act, 2017, is used instead of insanity and unsoundness of mind.
NEW PROVISIONS AND DEFINITIONS
Offences against women and children
A new chapter dealing with offences against women and children has been introduced with new provisions and offences. Under the IPC, these offences are part of the chapter dealing with offences against the human body.
Under the IPC, Sections 376DA and 376DB provide punishment for gang-raping a girl under 16 years of age and under 12 years of age, respectively. If the girl is under 16 years of age, the punishment is life imprisonment. In case the girl is under 12 years of age, the punishment could be life imprisonment or death penalty.
However, under the proposed code, Section 70(2) provides that if a group of persons rapes any girl below 18 years of age, they could face life imprisonment or even the death sentence.
Sexual intercourse by employing deceitful means.
This is one of the significant additions to the new code.
Under Section 69 of the proposed code, an individual who engages in sexual intercourse not amounting to rape with a woman through deceitful means or by providing false assurances of marriage will face a potential punishment of up to ten years of imprisonment, in addition to being liable for a fine.
Earlier, sexual intercourse on the promise of marriage used to be punished for the offence of rape under Section 375 IPC and the said provision did not list it as a separate offence.
Hiring children below the age of 18 years to commit an offence.
Under the proposed code, if anyone hires children under 18 to commit an offence, then such person will be held liable for the offence committed by the children.
Causing death by rash or negligent act and fleeing the scene of the incident
Section 104(2) of the proposed code seeks to punish with higher imprisonment for a person who causes death by a rash or negligent act and then escapes from the scene of the incident. The maximum punishment in such a scenario is up to 7 years and a fine.
Mob Lynching
The offence, though not separately defined, is punishable under the same provision as murder, i.e., Section 101. Section 101 of the proposed code provides punishment for murder on the grounds of race, caste or community, sex, place of birth, language, personal belief or ‘any other ground’. The offence is punishable by the death penalty or life imprisonment or imprisonment for a term of seven years or more.
Under the IPC, mob lynching is dealt with as murder with common intention and is punished as such accordingly. Under the IPC, the punishment for murder is either death or imprisonment for life.
However, Section 101(2) of the Bharatiya Nyaya Sanhita provides imprisonment for seven years or more as one of the punishments besides life imprisonment and the death penalty.
Organised crime and petty organised crimes
Organised crime will be defined under the penal code for the first time.
Section 109(1) of the proposed code defines organised crime as continuing illegal activities, including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, etc., carried out by groups of individuals acting in concert, singly or jointly, to gain financial or material benefits using violence, threats, intimidation, or other unlawful means.
According to Section 109(2), anyone who attempts to commit or commits an organized crime resulting in death will be subject to the punishment of death penalty or life imprisonment, along with a fine of no less than ₹10 lakh.
In cases where the act does not result in death, the individual or individuals involved shall be liable for imprisonment for a minimum of five years, which may extend to life imprisonment, in addition to a fine of not less than ₹5 lakh.
Sections 109(3) to 109(7) encompass provisions detailing the punishments applicable in aiding, abetting, membership, harbouring an offender, or possessing property linked to organized crime.
Section 110 defines petty organised crimes as theft of vehicles or from vehicles, domestic and business theft, trick theft, cargo crime, snatching, shoplifting, ATM thefts, and selling of public examination question papers. Anyone who attempts to commit or commits any petty organised crime will be subject to imprisonment for a minimum of one year, which may extend to seven years.
Terrorist Act
In another first, a ‘terrorist act’ has been defined under the proposed code.
As per Section 111(1), a person is considered to have committed a terrorist act if he intentionally engages in an action to threaten the unity, integrity and security of India:
- By using lethal means to create fear, cause death, harm individuals, or endanger lives.
- By causing damage or disruption to public or private property.
- By damaging or destroying critical infrastructure, disrupting vital systems.
- By intimidating the government or its organisations, potentially causing death or injury to public officials, compelling government actions, or destabilising the country’s structures.
Acts included within the scope of any treaties listed in the Second Schedule to the Unlawful Activities (Prevention) Act, 1967 have also been included.
As per Section 111(2), anyone who attempts to commit or commits a terrorist act resulting in death will be subject to the punishment of death or life imprisonment without the benefit of parole, along with a fine of no less than ₹10 lakh.
In cases where the act does not result in death, the individual or individuals involved shall be liable for imprisonment for a minimum of five years, which may extend to life imprisonment, in addition to a fine of not less than ₹5 lakh.
Sections 111(3) to 111(5) are provisions dealing with punishments applicable in cases of aiding, abetting, membership or harbouring an offender linked to a terrorist act.
Theft of property of which value is less than five thousand rupees
Section 301 of the proposed code provides for punishment of community service in case of theft of property where the value of the stolen property is less than five thousand rupees. No provision in the IPC specifically deals with such petty offence as was often bracketed under the broad head of the theft under Section 378.
Abetment outside India for offence in India
Section 48 of the proposed code seeks to provide punishment for abetting an offence inside India from outside India. Thus, the reach of the new proposed code is made trans-border.
Snatching
The new proposed code seeks to define snatching as an offence under Section 302 and punishes the act with imprisonment of a term of up to 3 years and a fine.
OLD WINE IN NEW BOTTLE
While introducing the bills in parliament, the Union Home Minister said that the proposed code would completely repeal the offence of sedition (punishable under Section 124A of the IPC). But the same provision has been repackaged, and a new version of sedition is introduced under Section 150 to punish acts “endangering the sovereignty, unity and integrity of India”.
Similarly, Section 303 of the IPC was declared unconstitutional by the Hon’ble Supreme Court in Mithu v. State of Punjab1 and has been repackaged and re-introduced in Section 102, thereby mandating the punishment of death or life imprisonment for the remainder of natural life if a person is under sentence of imprisonment for life commits murder. To recall, Section 303 of the IPC provided for a mandatory death sentence for a murder committed by a life-convict.
CHANGES IN PUNISHMENTS FOR CERTAIN OFFENCES
Defamation
Under the new code, the offence of defamation will be punishable under Section 354(2) with imprisonment for a term of up to 2 years or a fine or with “community service”.
Causing death by negligence
The punishment for causing death by negligence is enhanced. Under the IPC, Section 304A punishes the offence of causing death by rash or negligent act with imprisonment for a maximum of 2 years or with a fine or with both. Under Section 104(1) of the proposed code, it is punishable with a maximum term of 7 years and a fine.
Extortion
The punishment for extortion has also been enhanced. Under Section 384 of the IPC, extortion is punishable with imprisonment for up to three years. Under Section 306 of the proposed code, it is punishable with imprisonment for up to seven years.
Criminal breach of trust
Under Section 406 of the IPC, criminal breach of trust is punishable with imprisonment for up to three years. Under section 315 of the proposed code, it is punishable with imprisonment for up to five years.
Disobedience to order duly promulgated by public servant
Under Section 188 of the IPC, disobeying orders of a public servant is punishable with imprisonment for up to a month or up to six months, depending on whether or not the act causes danger to human life, health or safety or causes a riot. However, under Section 221 of the proposed code, the same is punishable with imprisonment ranging from up to six months to a year.
Misconduct in public by a drunken person
Under Section 510 of the IPC, a drunken person annoying in a public place is punishable with simple imprisonment for a term extending to 24 hours or with a fine of 10 rupees. But under Section 353 of the proposed code, the same is also punishable with community service or a fine of a maximum of 1,000 rupees.
REPEALED PROVISIONS
Unnatural sexual offences
Section 377 of the IPC, which criminalised “unnatural” carnal intercourse against the order of nature with any man, woman or animal, was partly struck down by the Hon’ble Supreme Court in the case of Navtej Singh Johar v. Union of India2 to the extent that such an act is performed with consent between two adults.
However, the proposed code does not feature unnatural offences.
Adultery
Section 497 of the IPC, which criminalised Adultery, was struck down by the Supreme Court for being arbitrary and violating Articles 14 and 15 of the Constitution.
Adultery is no longer an offence under the proposed code.
Attempt to die by suicide
The IPC prescribes punishment for attempting to die by suicide, which could result in imprisonment for up to a year, a fine, or both.
Although the proposed code seems to have removed the provision, the act of attempting to die by suicide has not been completely decriminalised. Under Section 224 of the proposed code, attempting to die by suicide still could result in imprisonment for up to a year, a fine, or both. This provided that the act intends to compel or restrain a public servant from discharging their official duty.
DRAFTING ERRORS
Section 23
Section 23 of the proposed code is meant to replace Section 85 of the IPC, which states that provided an individual has been involuntarily administered an intoxicant, any act he committed while under the influence shall not be deemed an offence.
However, Section 23 of the proposed code says that unless an individual has been involuntarily administered an intoxicant, any act committed by them while under the influence shall not be deemed as an offence.
Section 150
The explanation to Section 150, which punishes “acts endangering sovereignty, unity and integrity of India”, remains incomplete. The explanation reads as follows:
“Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtaining their alteration by lawful means without exciting or attempting to excite the activities referred to in this section.”
THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023
The Bharatiya Nagarik Suraksha Sanhita proposes to replace the Code of Criminal Procedure, 1973, which has 533 sections. The code repeals 9 provisions of the CrPC, proposes amendment to 107 provisions and introduces 9 new provisions. Some of the significant changes are listed below.
NEW PROVISIONS
Designated Police Officer
Under Section 37 of the proposed code, the state government is obligated to establish a Police control room in every district and at the state level, as well as designate a police officer who will maintain the information about names and addresses of persons arrested and the nature of the offence charged.
Identification and attachment of property of the proclaimed offender
Under Section 86 of the proposed code, the Court is empowered to initiate the process for identification, attachment and forfeiture of property belonging to a proclaimed person.
Recording of search and seizure through audio-video electronic means
The new code under Section 105 seeks to provide for the recording of search and seizure of any property, article or thing through audio-video electronic means. Audio video electronic means are also defined under the proposed code to include the use of any communication device for the purposes of video conferencing, etc.
Attachment, forfeiture, or restoration of property derived from the commission of any offence
Under the new code as per Section 107, in case the police or Magistrate has reason to believe that any property is derived (directly or indirectly) as a result of criminal activity, the Court can try such offence for the attachment of such property.
Request for investigation in country or place outside India
Under the proposed new code in Section 112, criminal Courts are empowered to issue letters to a Court in another country upon request of the Investigating officer, according to which evidence may be available there, to examine orally any person supposed to be acquainted with the facts and record his statement and forward all such evidence so taken to the Court issuing such letter.
Similarly, in deference to the principle of comity of nations, Section 113 of the proposed new code provides for a procedure to entertain a letter of request from another country for examination of any person in India and upon receipt of such letter, the central government is empowered to forward the same to the Judicial Magistrate who shall thereupon summon the person and record his statement.
Trial in absentia
Section 356 of the proposed new code seeks to provide for a procedure to conduct a trial and pass the judgment in absentia of a proclaimed offender. The Section starts with a non-obstante clause and prescribes that a proclaimed offender shall be deemed to waive his right to be present and tried in person, and the Court can proceed with trial in a manner as if he is present and pronounce the judgment.
Witness Protection Scheme
The new code makes it mandatory for every state government to prepare and notify a Witness Protection Scheme for the state to ensure the witness’s protection.
Trial in video conferencing
While harnessing the technology and approving the usage of the same during criminal trials, the proposed new code has also sought to allow the trials, proceedings, and inquiries under the code to be conducted in an electronic mode by use of electronic communication or use of audio-video electronic means.
E-filing of FIRs and progress of the investigation to be informed to the victim by police
As per Section 173 of the new code, the FIRs with respect to the commission of a cognizable offence can be given either orally or by electronic communication to an officer in charge of a police station.
Section 193(3)(ii) mandates the police officer to inform the informant or victim of the progress of the investigation within 90 days.
Specific timelines have been prescribed for time-bound investigation & pronouncement of judgements
The new code mandates the police officer to maintain a diary of proceedings setting forth the time the information reached him and the time he began and closed his investigation. Under Section 193, the new code also mandates every investigation to be completed without unnecessary delay and investigation for offences against women and children, i.e., rape, gang rape and under POCSO Act to be completed within 2 months from the date on which the police recorded the information.
The new code also mandates the Court under Section 258 to pronounce judgment within 30 days from the date of completion of arguments, which can be extended to 60 days for specific reasons.
Clarification with respect to the Police Custody period
The new code also provides for significant clarification regarding the police custody period. Section 187(2) of the proposed new criminal code, which mirrors the provision of Section 167(2) of CrPC, seeks to clarify that the 15-day term of the policy custody period can be either in whole or in part.
No sanction to prosecute public servants is required in offences, including sexual offence trafficking
Proviso to Section 218 has done away with the requirement to obtain sanction for prosecuting a public servant for offences of rape and trafficking.
BHARATIYA SAKSHYA BILL
The Bharatiya Sakshya Bill proposes to replace the Indian Evidence Act, 1872 and has 170 provisions. The Bill does not propose many material changes to the Indian Evidence Act and seeks to streamline electronic evidence. The key highlights of the Bill are as follows:
Evidence can be given electronically
The Bill seeks to elaborate the definition of the evidence. As per Section 2(1)(e), the evidence includes any statement or information given electronically, and this will permit the appearance of witnesses, accused, experts and victims through electronic means before the Court for the recording of their evidence.
Secondary evidence
The new Bill proposes to expand the scope of secondary evidence. The Bill under Section 58 allows oral admissions, written admissions, and evidence of a person who has examined the document to be produced as secondary evidence.
Streamlining the electronic evidence
The new Bill introduces a new schedule to make electronic evidence certificates more meaningful and provide for the original record’s hash value. The definition of the word document is also expanded to include the electronic and digital records as documents under Section 2(1)(c).
The new Bill also clarifies under Section 61 that electronic records or digital records will have the same legal effect, validity, and enforceability and can be proved just like any other documents either by way of “primary evidence” or “secondary evidence”.
Facts of which the Court can take judicial notice
Finally, the much-awaited change in Section 57 of the IEA (which provides for specific facts of which the Court can take judicial notice) has been proposed through Section 52 of the new Bill. Section 57, which was drafted during the British Raj, mainly enlists such facts which pertain to the parliament of the U.K. Rehauling the provision, the new code clearly and coherently enlists such facts about India of which the Court can take judicial notice.
Conclusion
All the above three new laws are now referred to the parliamentary standing committee for further discussion and analysis. There cannot be any dispute about the necessity of modernising the criminal justice system to serve the needs of the populace better and administer justice, as well as the need to remodel and rehaul our criminal laws in India in light of social advancement and new social trends. The three new laws also appear to strengthen efforts to make it easier to secure justice, particularly in cases involving crimes against women and children, mob violence, lynching, and other crimes that weren’t previously covered by specific statutes. However, the ground reality of the laws will be revealed with the passage of time once they are brought into effect.
Footnotes
1. (1983) 2 SCC 277
2. AIR 2018 SC 4321
Author – Nisha Sharma (Senior Associate) and Rohan Srivastava (Associate)