Most probably, India will get new criminal laws by the end of this year in the form of the three bills that will replace IPC, CrPC, and the Evidence Act, as the committee tasked with reviewing them is likely to submit its report ahead of the start of the Winter Session of the Parliament in December. The government will try to get the bills passed in the parliament after discussion in the Winter Session.
On 11 August 2023, the Central government introduced three new Bills in the Lok Sabha to replace the Indian Penal Code, 1860 (IPC) as Bharatiya Nyaya Sanhita, 2023 (BNS), the Code of Criminal Procedure, 1973 (CrPC) as Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Indian Evidence Act (IE) as Bharatiya Sakshya Bill, 2023 (BSB).
Bhartiya Nagarik Suraksha Sanhita Bill, which will replace CrPC, now has 533 sections – 160 sections of old law have been changed, 9 new sections have been added and 9 sections have been repealed.
Bharatiya Nyaya Sanhita Bill 2023, which will replace IPC, now has 356 sections instead of the earlier 511 sections – 175 sections have been changed, 8 new sections have been added and 22 sections have been repealed.
Bharatiya Sakshya Bill, which will replace the Evidence Act, will now have 170 sections instead of the earlier 167 sections – 23 sections have been changed, 1 new section has been added and 5 have been repealed.
The three proposed legislation to replace the IPC, CrPC, and the Evidence Act were sent to the Parliamentary Standing Committee on Home Affairs (SCOHA) for review, and Rajya Sabha Chairman Jagdeep Dhankharinstructed SCOHAto provide a report within three months.
In his reaction to the proposed changes in three laws, senior Supreme Court lawyer Sanjay Hegde said, “Over 80 percent of the codes are reiterations of existing provisions, with section numbers being changed. But some provisions especially for increased periods of police custody indicate greater scope for police excess. Curiously, the trial courts are no longer described as courts of justice. The balance between police power and judicial oversight has now been tilted towards the police and the citizen may be remediless. Some professors are viewing this as a ‘shilanyas for a police state’ that may soon come in.”
Another Supreme Court lawyerMR Shamshad said, “Any new law or existing law amendment’s express objective and aim is to make improvements that will further ensure the system of administering justice is fair and effective. By merely changing the names of laws and giving the police system more authority, it is not possible to feign the removal of the colonial legacy. The police already have enough authority under the current system to carry out the desired process. It has enormous natural power, a wealth of discretionary authority, and lacks any discernible or practical accountability.”
Advocate Shamshad further said, “Our new codes must guarantee justice when cases are brought before the courts. The amendments proposed to retain almost all provisions which support police powers without doing actual police reforms. Despite repeated reminders from the Supreme Court, no practical efforts have been done to reform the police or improve their accountability, regardless of the regime in control of the system,” he said.
Anas Tanwir Siddiqui, Advocate Supreme Court, while sharing his concern said, “This replacement of IPC, CrPC and Evidence Act is basically a solution to a problem that does not exist. The new laws are poorly drafted and being sent to the Standing Committee. It is not going to benefit any individual and the replacement of CrPC giving far more power than they already have will encroach upon the personal liberty of individuals.”
Madhurima Dhanuka, Programme Head, Prison Reforms Programme, Commonwealth Human Rights Initiative said, “I welcome the government’s efforts to introduce revised versions of the criminal law. I do however hope that the Standing Committee will, while reviewing the laws, take affirmative steps to ensure that various procedural safeguards, that are vital to protect the rights of citizens, in particular, those accused of offences, are introduced.”
She further said, “This was an opportune moment to introduce robust checks on the power of police to arrest and detain arbitrarily. Our yearly arrest figures have been soaring and a plethora of government reports have highlighted the ills of unnecessary arrests on the criminal justice system as a whole. Yet, one finds that apart from introducing the requirement for seeking prior permission from a senior officer for arrest for an offence punishable for less than three years and where the person is infirm or above sixty years of age, no further checks have been introduced.”
Dhanukaadded, “Further, a duty could have imposed on the arresting police officer to inform the arrestee of his right to legal representation and legal aid. In absence of this mandate, one finds in practice that those arrested are unaware and thus unable to ensure the presence of a lawyer at the time of interrogation. A practice that often results in custodial violence and abuse of process.”
She opined, “Also the use of handcuffs has been introduced, which is in contravention of a number of directives of the Supreme Court in relation to the use of handcuffs. Agreed that it is applicable in select cases, but given practical realities, one has little hope. Like these, there are several lacunas that the government could have taken into consideration such as establishing timelines for investigation, on various stages of a trial to be able to ensure to some extent the right to speedy trial. Another area of concern is the inclusion of use of videoconferencing for all proceedings in a criminal trial. A CHRI research conducted in 2020 highlighted how use of VC for all hearings can be detrimental to the fair trial rights of accused persons.
“This would thus, have been an opportune moment for the government to ensure that safeguards that protect the fair trial rights of both victims and accused are included within the legal frameworks.”