Criminal justice III: the new criminal laws of 2023

Detail

1. Genesis: why India replaced the colonial codes

• The three colonial codes:
• Indian Penal Code (IPC), 1860. It listed crimes and their punishments. It had 511 sections.
• Indian Evidence Act, 1872. It set the rules on what proof a court can accept.

• Code of Criminal Procedure (CrPC). It set out the steps from arrest to trial. It was first made in 1898 and made again in 1973.

• Reform reports that shaped the change:

• Malimath Committee (2003). This was a committee on reforms of the criminal justice system. It made three main proposals:
  • Victim-centred justice. The victim should get rights to take part in the case, to be heard and to get compensation.
  • A lower standard of proof. Courts should convict when they are "convinced that it is true", which is below the usual test of "beyond reasonable doubt".
  • Stronger investigation and prosecution. This meant better forensics and a separate prosecution wing.
• Madhava Menon Committee (2007). It drafted a national criminal justice policy.
• Justice Verma Committee (2013). It was set up after the December 2012 Delhi gang-rape. It asked for a gender-neutral definition of rape and for marital rape to be made a crime. The BNS adopted neither proposal [3].

• Committee for Reforms in Criminal Laws (2020). It was set up by the Ministry of Home Affairs.

• How the laws were passed: 1. 11 August 2023. The three Bills were introduced in the Lok Sabha [2]. 2. They were then sent to the Parliamentary Standing Committee on Home Affairs. This is a small group of MPs that studies a Bill in detail. 3. The first Bills were withdrawn. Revised "(Second)" Sanhitas were introduced on 12 December 2023 [3]. 4. Passed by the Lok Sabha on 20 December and the Rajya Sabha on 21 December 2023 [3]. 5. Presidential assent on 25 December 2023 [4][5]. 6. In force from 1 July 2024 [4][5].

• Transition rule: offences committed before 1 July 2024 are still tried under the IPC, CrPC and Evidence Act.

Old law	New law (2023)	Sections
IPC 1860	Bharatiya Nyaya Sanhita (BNS)	358 (IPC: 511)
CrPC 1973	Bharatiya Nagarik Suraksha Sanhita (BNSS)	531
Evidence Act 1872	Bharatiya Sakshya Adhiniyam (BSA)	170

2. Bharatiya Nyaya Sanhita 2023: what counts as a crime

• Bharatiya Nyaya Sanhita (BNS): the new main list of crimes and punishments. It replaces the IPC.
• New order of chapters: offences against women and children now come first. In the IPC, offences against the State came first.
• New offences:
• Organised crime (s.111). This covers serious crimes done for a crime gang (syndicate), such as kidnapping, extortion and contract killing [3].
• Petty organised crime (s.112). This covers smaller gang crimes, such as organised theft and pick-pocketing [3].
• Terrorism (s.113). This covers acts that threaten India's unity, integrity, security or economic security [3]. It overlaps with the Unlawful Activities (Prevention) Act (UAPA), 1967.
• Mob lynching (s.103(2)). This means murder by a group of five or more people acting together, on grounds such as race, caste, community, sex, place of birth, language or personal belief. The punishment is death or life imprisonment.
  • In Tehseen Poonawalla v. Union of India (2018), the Supreme Court had asked Parliament to make lynching a separate crime.
  • Causing grievous hurt (serious injury) on the same grounds is also an offence [3].
• Snatching (s.304). Grabbing property, such as a chain or a phone, is now a separate crime.

• Sexual intercourse by deceitful means (s.69). This includes a false promise of marriage or a job.

• Sedition replaced:

• IPC s.124A (sedition) punished words that bring "hatred or contempt" against the government.
• In S.G. Vombatkere v. Union of India (2022), the Supreme Court put s.124A in abeyance. This means it was paused and new cases could not be filed under it.
• The Law Commission's 279th Report, "Usage of the Law of Sedition" (2023), chaired by Justice Ritu Raj Awasthi, had suggested keeping sedition with safeguards [6].

• BNS s.152 instead punishes acts that endanger the sovereignty, unity and integrity of India, such as exciting secession, armed rebellion or subversive activities. Critics say it may keep sedition's problems under a new name [3].

• Offences dropped:

• Adultery. It was struck down in Joseph Shine v. Union of India (2018).

• IPC s.377. It was read down in Navtej Singh Johar v. Union of India (2018). Dropping it fully also removed the protection against the rape of men and against bestiality. This leaves a gap in the law [3].

• Community service (s.4(f)):

• Meaning: unpaid work for the public, given as a punishment for petty offences. It is a new kind of punishment in India.
• It applies to six petty offences, for example:
  • a first-time theft of property worth less than ₹5,000 when the stolen property is returned or paid for (s.303(2));
  • drunken misconduct in public (s.355);
  • defamation (s.356).

• The BNS does not define "community service". The Standing Committee wanted a definition, but this was not adopted [3].

• Hit-and-run (s.106(2)):

• A driver who causes death and runs away without reporting it can get up to 10 years in prison.

• Truckers protested in January 2024, so this clause was kept on hold. It did not come into force on 1 July 2024 with the rest of the BNS [4][5].

• Marital rape exception retained (Exception 2 to s.63). A man forcing sex on his adult wife is still not "rape" under the BNS. Challenges to this exception are pending in the Supreme Court.

• Age thresholds: child victims are defined by different ages in different offences. This conflicts with the POCSO Act, 2012, which treats everyone below 18 as a child [3].

3. Bharatiya Nagarik Suraksha Sanhita 2023: the procedure

• Bharatiya Nagarik Suraksha Sanhita (BNSS): the new procedure code for arrest, investigation, bail and trial. It replaces the CrPC, 1973 [2].
• Reporting a crime:
• Zero FIR. An FIR (First Information Report, the first written police record of a crime) can be filed at any police station, whatever the area the crime happened in. The case is then sent to the right station [4].

• e-FIR. A crime can be reported by electronic communication, without visiting a police station [4].

• Timelines:

• Judgment within 30 days of the end of arguments, extendable to 45 days. (The first Bill of August 2023 allowed up to 60 days [2].)
• A doctor who examines a rape victim must send the report to the police within 7 days [2].
• Victims must be told about the progress of the investigation within 90 days [2][4].

• A sessions court must frame charges within 60 days of the first hearing on charges [2].

• Forensics and technology:

• Forensic examination is compulsory for offences punishable with 7 years or more (s.176(3)). Forensic experts must visit the crime scene, collect evidence and record the process [2].
• Audio-video recording of search and seizure (s.105).
• All trials, inquiries and proceedings may be held in electronic mode [2]. Summons can also be sent electronically.

• Finger impressions and voice samples can be taken even from a person who has not been arrested [2].

• Trial in absentia (s.356):

• Meaning: a trial held while the accused is absent.
• It applies to a proclaimed offender, that is, a person who runs away after the court publicly orders them to appear.

• The trial can go ahead 90 days after charges are framed. This prevents an accused who runs away from blocking the case.

• Attachment of proceeds of crime (s.107). Police can ask the court to attach property gained from a crime, so it cannot be sold or moved.

• Protection for vulnerable people. Women, persons below 15 years, persons above 60 years, and persons with a disability or a serious illness do not have to go to a police station for questioning [4].
• Directorate of Prosecution (s.20):
• Public prosecutor: the government's lawyer in criminal cases. The prosecutor argues the case for the State against the accused.
• Each state must set up a Directorate of Prosecution, with offices in the districts.

• The aim is to make prosecutors more independent of the police, as the Malimath Committee had asked.

• Witness protection (s.398):

• Every state must notify a witness protection scheme.
• This builds on the Witness Protection Scheme 2018, which the Supreme Court approved in Mahender Chawla v. Union of India (2018). It is binding law until Parliament makes its own law. The scheme has four parts:
  • threat categories, which rank how serious the danger to a witness is;
  • concealment of identity, so the witness's name is hidden;
  • relocation, so the witness can be moved to a safe place;
  • a Witness Protection Fund to pay for this protection.
• Class 11 NCERT warns that witnesses often change their statements "to suit the wealthy and the mighty", which leads to acquittals. This scheme answers that worry.

4. Bharatiya Sakshya Adhiniyam 2023: evidence

• Bharatiya Sakshya Adhiniyam (BSA): the new law of evidence, with 170 sections. It replaces the Evidence Act, 1872.
• Electronic and digital records count as "documents". These include emails, server logs, phone messages and location data.
• Such records can be primary evidence. Primary evidence means the original itself, not a copy.
• A certificate is still needed to prove electronic records (s.63).

5. Implementation

• Inter-operable Criminal Justice System (ICJS):
• Meaning: a single digital platform that lets all parts of the criminal justice system share data.

• It links five pillars:

  • police, through CCTNS (Crime and Criminal Tracking Network and Systems);
  • courts, through e-Courts;
  • prisons, through e-Prisons;
  • forensic labs, through e-Forensics;
  • prosecution, through e-Prosecution.

• Apps built to run the new laws:

• e-Sakshya, to record and upload evidence from the crime scene;
• Nyay Shruti, for hearings by video;
• Nyay Setu, for sharing case information;
• the e-Summon portal;

• e-Vaarta, a facility started through the ICJS [4].

• Training. About 11.35 lakh officers had been trained by late 2024 [4][5].

• Launch. On 1 July 2024, every police station held an awareness programme with a bilingual booklet on the new laws [4].
• Bottleneck. There are not enough forensic labs, trained experts or prosecutors to meet the compulsory-forensics rule and the new timelines.

6. Critique and defence

• Critics say:
• Most of the old text is kept. Much of the IPC and CrPC is copied with new section numbers. This makes old case law harder to use, and it raises the question of whether full new codes were needed [3].
• The police-custody window is wider:
  • Up to 15 days of police custody can now be taken in parts during the first 40 or 60 days of detention, not only in the first 15 days [2].
  • So an accused may be denied bail while the police still have custody days left to use [2].
• There is no bail reform. Under-trial prisoners remain a large share of the prison population. The bail relief for first-time under-trials does not apply to anyone facing multiple charges [2].
• Handcuffing is allowed at arrest in some cases (s.43(3)), such as for repeat or serious offenders.
• The new codes overlap with special laws. Terrorism and organised crime are also covered by the UAPA and state laws such as MCOCA. Penalties can differ for the same act [3].
• The Hindi titles raise an Article 348 debate. Article 348 says the authoritative text of Acts of Parliament is in English unless Parliament provides otherwise. Critics, especially in non-Hindi states, objected to Hindi names for central laws.

• The marital-rape exception and the gaps left by dropping s.377 remain [3].

• Supporters say:

• The laws are victim-centred. Examples are zero FIR, updates on the investigation, witness protection and offences against women and children placed first.
• They use technology: e-FIR, electronic trials, digital evidence and the ICJS.
• They bring speed and certainty through fixed timelines, trial in absentia and compulsory forensics. Compulsory forensics can raise conviction rates.
• They decolonise the law by removing sedition and the old colonial wording.

Prelims Hooks

• BNS s.103(2): mob lynching by 5 or more people on grounds such as race, caste, community, sex, place of birth, language or belief → death or life imprisonment. It followed Tehseen Poonawalla (2018).
• Section numbers: organised crime is s.111 and terrorism is s.113 of the BNS. Sedition (IPC s.124A) is replaced by BNS s.152.
• Law Commission 279th Report (2023) favoured keeping sedition. S.G. Vombatkere (2022) put it in abeyance.
• Section counts: BNS 358 (IPC 511); BNSS 531; BSA 170. Assent was given on 25 December 2023, and the laws came into force on 1 July 2024.
• BNSS s.356 allows trial in absentia of a proclaimed offender after 90 days from the framing of charge.
• BNSS s.176(3) makes forensics compulsory for offences punishable with 7 years or more. s.105 requires video recording of search and seizure.
• BNSS s.398 says states must notify witness protection schemes. The Witness Protection Scheme 2018 was approved in Mahender Chawla (2018).
• Community service is a new punishment under BNS s.4(f), for six petty offences.
• Trap: the hit-and-run clause s.106(2) did not come into force on 1 July 2024. Adultery and s.377 are absent from the BNS. The marital-rape exception is retained.
• ICJS pillars: CCTNS (police), e-Courts, e-Prisons, e-Forensics and e-Prosecution.

Mains Points

• Decolonisation or relabelling?
• The new laws add victim-centred features, technology and timelines.
• But most of the colonial text is kept. Section 152 may revive sedition under a new name, and the codes overlap with the UAPA and state organised-crime laws.

• Reform needs police reform (Prakash Singh, 2006) and prosecution reform, not only new codes.

• Liberty versus investigation:

• The wider police-custody window, handcuffing and taking biometrics without arrest strengthen the State.
• There is no bail reform, even though under-trials crowd the prisons.

• These provisions must be tested against Article 21 (right to life and personal liberty) and Article 22 (protection against arbitrary arrest).

• Capacity decides success:

• Compulsory forensics, 30–45 day judgments and e-trials need labs, prosecutors, judges and digital infrastructure (ICJS, e-Sakshya).
• Without these, the timelines may stay on paper.

• This links to the subordinate-court vacancies under Arts. 233-237 and to legal aid (Legal Services Authorities Act, 1987).

• Witnesses and acquittals:

• States must notify witness protection schemes (s.398), and an independent Directorate of Prosecution is set up (s.20).
• Together these respond to the Class 11 NCERT concern about hostile witnesses and low conviction rates.
• The Malimath Committee's victim-centred model is partly adopted, but its lower standard of proof is not.