NEW CRIMINAL LAWS OF BHARAT; REFORM OR REPACKING?

Ritvik Mishra, B.E.(I.T.), LL. B – Vikram University, Ujjain

Abstract: -
In this paper, we are going to analyse between the old and newly amended
criminal laws of India. Before the independence of India (Bharat) the Britishers enacted
the codes, to punish Indians for committing any offence. Still, the Country of India is a
republic country even though Indian penal code of 1860 is in force. India is a fastest
growing economy and the 7th largest republic country in the world. In 2020 government
of India formed a committee to analysis how to ament Indian penal code of 1860, Criminal
procedure Code of 1973 and Indian Evidence act of 1872. The committee was headed by
Prof. Ranbir Singh, who is a Vice – Chancellor of National law university Delhi, the
recommendations were accepted by government and the new bill was drafted by the
drafting committee in the year of 2023, then Home minister of India Introduced new law
bill, and ultimately has reformed the colonial-era laws by introducing new criminal laws
called, Bhartiya Nyaya Sanhita 2023 instead of Indian penal code of 1860, the Bhartiya
Nagarik Suraksha Sanhita 2023 instead of Criminal procedure Code of 1973 and the
Bhartiya Sakshya Adhiniyam 2023 instead of Indian Evidence act of 1872.

The country is all set to introduce the three new criminal laws that have sparked a
nationwide debate. The Indian Penal Code 1860 will be replaced by the Bhartiya Nyaya
Sanhita 2023 (B.N.S.). The Bhartiya Nagarik Suraksha Sanhita 2023 (B.N.S.S.) will update
the existing Criminal Procedure Code 1973. Similarly, Bhartiya Sakshya Bill 2023 will be in
place of the Indian Evidence Act, 1872. Mixed views are unearthed after centre’s decision
to implement the newly amended criminal laws, people question the need and relevance
of these laws, over the old one arguing that they are nothing but old laws with new labels.
Others, however, support the laws as a timely and effective response to the changing
circumstances and challenges of crime. Many, believe that the laws will deter criminals by
instilling fear in their minds and reducing crime rates. To grasp the debate, we need to
know the changes introduced by the government.
The cross-sectional examination of the new old law can be produced in tabular
form as follows:
PARTICULARS I.P.C. as Bhartiya Cr.P.C. as Bhartiya INDIAN EVIDENCE ACT
Nyaya Sanhita 2023 Nagarik Suraksha as Bhartiya Sakshya
Sanhita 2023 Adhiniyam 2023
REMOVED LAWS 22 Sections 9 Sections 5 Sections
CHANGED LAWS 175 Sections 160 Sections 23 Sections
NEW SECTIONS 8 Sections 9 Sections 1 Sections
TOTAL SECTION IN 356 Sections Instead 533 Sections Instead 170 Sections Instead of
NEW BILLS of 511 sections of 478 sections 167 sections
 The prevailing I.P.C. has 511 sections, which is further divided into 23 chapters,
encapsulating various offenses and punishments. Whereas the newly enacted B.N.S.
consists of total 356 clauses, divided into 19 chapters, covering not only offenses and
punishments but also general principles of criminal law, such as mens-rea, actus reus,
causation, defences, etc. The prevailing I.P.C. prescribes six types of punishments: death,
imprisonment for life, imprisonment (rigorous or simple), forfeiture of property, fine, and
whipping (abolished in 1955). The newly enacted B.N.S. prescribes five types of
punishments: death, imprisonment for life, imprisonment (rigorous or simple), fine, and
community service. The newly enacted B.N.S. also introduces the concept of minimum
and maximum sentences for each offense, whereas the prevailing I.P.C. only specifies the
maximum sentence. The B.N.S. also provides mandatory compensation to victims in
certain cases.
Newly implemented Offences: The prevailing I.P.C. 1860 defines various offenses
against the state, public tranquillity, human body, property, public health, safety, morals,
etc. The newly enacted B.N.S. also defines similar offenses but with some peculiar
changes and additions. For instance, the newly drafted B.N.S. repeals the age-old sedition
law and has been replaced it by a new offense of waging war against India or its allies. The
B.N.S. also comprises newly added offenses such as cybercrime, terrorism, hate speech,
sexual harassment at the workplace, acid attacks, etc. The newly drafted B.N.S. also
modifies various existing offenses such as rape, murder, theft, etc., to make them more
efficacious and gender-neutral and replaces them with a new offense of waging war
against India or its allies. The prevailing I.P.C. does not deal with the rules of evidence and
procedure for criminal cases. These are governed by separate laws such as the Indian
Evidence Act 1872 and the Code of Criminal Procedure 1973 similar approach has been
taken while drafting B.N.S., thereby it also does not deal with these aspects directly but
proposes to replace these laws with two new bills: the Bhartiya Sakshya Bill 2023 and the
Bhartiya Nagarik Suraksha Sanhita 2023. These bills aim to simplify and streamline the
rules of evidence and procedure for criminal cases.
The various changes may be enumerated as under: -
Waging War: The prevailing I.P.C. since drafted in the colonial era and by the British,
defines sedition as bringing or attempting to bring hatred, contempt, or exciting
disaffection towards the colonial government. It is punishable with imprisonment terms
between three years, life imprisonment, and a fine. The latest Bill repeals the offense of
sedition, as it has been widely criticized as a colonial relic that has silenced free speech
and dissent. It is now “Acts endangering sovereignty unity and integrity of India” & and
“Waging war against Government of any foreign State at peace with Government of
India.” These offenses may involve exchanging words or signs, electronic communication,
or using financial means. These will be punishable with imprisonment of up to seven years
or life imprisonment with or without a fine.
Petty Organised crime: The latest draft defines Petty organized crimes which inculcate
general feelings of insecurity among citizens, and are committed by organized criminal
groups/gangs. These include organized pickpocketing, snatching, theft, etc.
Organized crime: The latest draft defines organized crime such as kidnapping, extortion,
contract killing, land grabbing, financial scams, and cybercrime carried out by use of
violence, intimidation, or other unlawful means to obtain material, undue benefits, or
economic benefits whether carried out by a single person or jointly as members of or on
behalf of a crime syndicate.
Mob lynching: The need of the hour and as a result of high unrest in the mind of the
common mass, the latest draft specifies a separate penalty for murder committed by five
or more people on specified grounds. These include race, caste, sex, place of birth,
language, or personal belief. Each offender will be punishable with imprisonment between
seven years and life, or death along with imposition of cost.
Gang rape: The high rate of this obnoxious crime has also been taken care of in the latest
draft which prescribes the death penalty for gang rape of minors. Prevailing I.P.C. allows
the death penalty for gang rape of women below 12 years of age. The Bill allows the death
penalty for gang rape of women below 18 years of age.
Terrorism: The age-old termite that has hollowed and paralyzed the economy in various
parts of the country hence the Bill encompassed terrorism as an act that intends to
threaten the unity, integrity, and security of the country, intimidate the general public, or
disturb public order. Terrorist acts include using firearms, bombs, or hazardous substances
(biological or chemical) to cause death, danger to life, or spread a message of fear. It also
consists of destroying property or disrupting essential services, and activities included
under section 2(g) in the Unlawful Activities (Prevention) Act, 1967 such as unlawful
seizure of aircraft or taking of hostages. Punishment for attempting or committing
terrorism includes death or life imprisonment where the offense has resulted in the death
of any person or imprisonment term between five years and life in other cases. The
offender will also be liable to a fine of at least five lakh rupees. The new B.N.S. will also
remove the effect of Mittu Singh V. State of Punjab by which section 303 of I.P.C., 1860
was declared void. Now, the country’s judiciary is in free hand to impart punishment for
life imprisonment or death punishment for murder by a life-convict.
Amendments introduced by the Bhartiya Nagarik Suraksha Sanhita 2023: -
The Bhartiya Nagarik Suraksha Sanhita 2023 is aimed to set a new bar with certain new
features. These features can be summarized as under: -

 The B.N.S.S. has eradicated many outdated and offensive terms such as ‘lunatic person’
or ‘person of unsound mind’ by replacing them with more compassionate terms such as
‘having an intellectual disability.’ The term ‘lunatic asylum’ has been appropriately
changed to ‘mental health establishment.’
 The word ‘pleader’ has been rightly replaced with the word ‘advocate’. Another term
that has been discarded is ‘thug’ and references to crimes by ‘thugs’ have been omitted
due to these became obsolete.
 The B.N.S.S. also abolished an obsolete provision, Section 153 of Cr.P.C., where police
were given the power to enter and search any place without a warrant to inspect or verify
the accuracy of weights and measuring instruments. Some relevant sections have been
modified to align with the Mental Healthcare Act 2017.
 Another retrograde provision has been amended, whereby under Section 64 of Cr.P.C.,
the summons could only be served to an adult ‘male’ member of the family. Similarly, in
Section 432 of Cr.P.C., petitions for suspension/remission by only ‘males’ over the age of
18
were subject to higher scrutiny. Now, the word ‘male’ has been rightfully dropped.
The new code B.N.S.S. has made some vital changes and clarifications in regard
with the treatment of Proclaimed offenders. Previously, under Section 82(4) of Cr.P.C., only
those who committed one of the specifically defined offenses under prevailing I.P.C. could
be declared as Proclaimed offenders. This left out many other serious offenses under
prevailing I.P.C. or other laws. The new code has transcended this limitation and allowed
anyone who faces more than 10 years of imprisonment or other special offenses to be
declared as a Proclaimed offender. The new code B.N.S.S. has also added a new provision
to explain how to conduct a trial or inquiry in the absence of a Proclaimed offender. This
section has been criticized by many laureates and jurists quoting it as seeming harsh and
unwarranted, but it at least provides a clear procedure for such cases.
 The new B.N.S.S. code has also eradicated some ambiguities for instance, it has added a
clear explanation to Clause 516, which deals with the calculation of the period of
limitation.
 The newly drafted B.N.S.S. has also specified when an offender has been sentenced to
pay a fine, but no such payment is paid, coercive action shall be taken.
 The new B.N.S.S. code has introduced a new chapter on Bail. This chapter defines the
terms Bail and Bond. Although again the term ‘Surety’ is still undefined, hence a riddle.
 The Indian criminal justice system still recognizes capital punishment and the new code
prescribes a detailed procedure for Mercy Petitions in such cases which rightly illustrates
Bharat's belief in the reformative theory of criminal justice.
 The new code has upgraded the law to inculcate the use of forensic science in criminal
investigation. It provides for the collection of fingerprints and voice samples, in addition to
specimen signatures or handwriting samples. It mandates a forensic team to visit the
crime scene to collect samples and record the whole process on video.
 The new code has also improvised the interests of the victims. The court will have to
afford an opportunity to hear the victim before allowing the withdrawal from prosecution.
 On the other hand, the new B.N.S.S. code has also given the accused a chance to be
heard in complaint cases. The magistrate now will have to also afford an opportunity of
hearing the accused before taking cognizance of the complaint. Now, the
police/investigating agency must inform the victim about the progress of the investigation
within 90 days, electronically or otherwise.
 The new code directs the state governments to notify a Victim Compensation Scheme
and a witness Protection Scheme. The Code does not provide any guidelines for the
scheme and states hence states are free to decide the criteria as per their need,
budgetary requirements, etc.
 The new B.N.S.S. code has also improvised the interests of women. For example, a
woman’s statement should be recorded by a female judicial officer and the information
about the woman’s arrest should be given to her relatives or friends.
 The new code has also illustrated the scope of anticipatory bail. It has removed some
provisions that have obstructed the effective grant of anticipatory bail. Now, granting
anticipatory bail is comparatively easy. Now, a first-time offender during pending trial can
get bail after undergoing 1/3rd of the punishment, instead of 1/2 of the punishment.
 The new B.N.S.S. code has also provided that the police will have to record the
proceedings of any search and cannot abuse their power while conducting search
operations. Similarly, copies of any records made during such search need to be sent to
the concerned magistrate within 48 hours.
 The new B.N.S.S. code has also brought a humanitarian change by adding a proviso
regarding the power of police to summon people. Now people belonging to vulnerable
categories cannot be forced to attend any place other than where they live.
Vision of Digital Judicial System: -
The new code has thoroughly tried to encompass the Digital techniques by allowing all
trials, inquiries, and proceedings, recording of evidence, examinations of parties, issuance,
service, and execution of summons and warrants, and many other processes to be done
electronically.
 According to the new B.N.S.S. code summons can now be served digitally as well.
 Summons and warrants can be issued electronically under the ‘Issue of process’
provision.
 Notices by executive magistrates can be served online.
 Police reports and other investigation-related documents can be supplied digitally.
 Order of confirmation of Death Sentence can be done electronically.
 Charges to the accused under Sessions Trial can be read electronically.
Swift and Time-framed Procedure: -
Some of the specific changes that make the processes time-framed are:
 In the proceedings for ‘Conditional order for removal of nuisance’ the proceedings must
be completed within 90 days.
 In non-cognizable offenses, the police must send information to the concerned every
fortnight.
 In the medical examination of a rape victim, the examination must be done within
seven days, instead of ‘without delay.’
 In the committal proceedings by the Magistrate to Sessions court, the proceedings must
be completed within 90 days from the date of taking cognizance, which can be extended
to a maximum of 180 days but by giving reasons in writing.

 In the case of deals with ‘Prosecution of Judges and Public Servants’ which states that if
the government does not decide on the sanction within 120 days, it will be considered as
‘deemed sanction’.
 In the application for discharge in a Sessions trial, the accused must apply within 60
days of committal.
 In the framing of charges under Sessions Trial and Magistrate Trial in warrant cases, the
charges must be framed within 60 days of the first hearing on the charge, as per the
addition to the sections.
 In the judgment of acquittal or conviction by Session Court, the judgment must be given
within 30 days after completion of arguments, which can be extended to 60 days only by
giving special reasons.
 In the number of offenses for which a person can be charged and tried at once, the
number has been increased from ‘three’ to ‘five.’ (Clause-242(1)
 To prevent unnecessary adjournments that cause delays in the trial, not more than two
adjournments can be granted by the court after hearing the objections of the other party
and for the reasons to be recorded in writing
 In the pronouncement of the judgment in every trial, the judgment must be
pronounced within 45 days of termination of the trial. The judgment also must be
uploaded online within 7 days of pronouncement.

Changes encompassed in the Bhartiya Sakshya Adhiniyam-2023: -

The adhiniyam permits the courts to accept digital records like email as evidence. A
careful scrutiny of the adhiniyam shows that it mostly reaffirms the existing status of
electronic evidence. The changes introduced by the adhiniyam may be calcified as under
Reaffirmation of certain existing provisions with favorable transformations. The
admissibility of electronic records has not changed much. The adhiniyam has re-affirmed
the principles laid down in the Arjun Panditrao case. The definition of ‘primary evidence’
in Clause has been taken from the current Act, but four more Explanations have been
added. The Explanations explain what is to be considered ‘primary evidence’ when
dealing with electronic records.
Secondary evidence for electronic records – Potential complications the changes
made in this respect desires more caution. The clause has been changed to include
information created by or stored in communication devices as well. Information made
through intermediaries has also been included. A format of the certificate needed under
Clause 63 has also been given in the Schedule of the adhiniyam. A given format would
surely prevent problems at trial because of technical inadvertent errors. The expert is only
supposed to certify that the computer output has come from the respective computer
device. So, a person wanting to give electronic evidence would have to first contact an
expert, give them the computer device, and ask them to make the computer output and
take a certificate.
Conclusion:
After digging deep through the proposed Criminal Laws, we can elucidate the
various pros of these newly enacted laws. These reflect the Bhartiya ethos and values and
throttles on providing justice rather than punishing. The sedition law was mostly misused
to suppress and silence dissent and curtail, and oppress civil liberties. These enable faster
and easier communication, documentation, and verification of evidence, by facilitating the
use of modern technology and innovation in the justice system. They protect the human
dignity and rights of the accused and convicted persons, by abolishing the death penalty
and introducing new forms of punishment such as community service and solitary
confinement. They empower and support the victims of crime, by acknowledging their
suffering and providing them with adequate mandatory compensation, restitution, and
rehabilitation services. These enhance the credibility and transparency of the justice
system, by safeguarding the interests and safety of witnesses who are vital for establishing
the truth and delivering justice. These dedicate a separate chapter to crimes against
women and children and expand the scope of offenses about sexual violence by
employing deceitful means. The Law of Evidence seems almost the same with a new level.
All in all, we can conclude that these laws can be considered as ushering light of a new era
of digital, compassionate, and contemporary provisions.