Context:
In the current parliamentary session, more than 140 members were absent when the three Bills, replacing India’s criminal laws, were passed. Creating laws without a significant presence of Opposition members reflects poorly on the legislative process. Many concerns related to the bills could not be addressed in Parliament due to the absence of a significant number of members.
Relevance:
GS2- Government Policies & Interventions
Mains Question:
The new criminal laws have favorable aspects, but they do not introduce any groundbreaking alterations in India’s Criminal Justice System. Comment. (15 Marks, 250 Words).
Background:
- These bills, namely the Bharatiya Nyaya Sanhita (replacing the IPC), the Bharatiya Nagarik Suraksha Sanhita (replacing the CrPC), and the Bharatiya Sakshya Bill (replacing the Evidence Act), underwent scrutiny by a Parliamentary Standing Committee before being introduced.
- However, despite this scrutiny, they still required thorough legislative discussions in the full chambers due to their wide-ranging implications for the entire nation.
On the Revised Codes:
A notable feature of the new codes is that, apart from a reordering of sections, much of the language and content of the original laws has been retained.
- The Bharatiya Nyaya (Second) Sanhita Bill, 2023, has incorporated the definition of a ‘terrorist act’ from the Unlawful Activities (Prevention) Act, 1967 (UAPA), specifically adopting Section 15 of the UAPA.
- This UAPA definition identifies a terrorist act as any action intending to threaten the unity, integrity, security, economic security, or sovereignty of India, or to instill terror in the people.
- The revised Bill aligns with the UAPA but expands the definition to include activities related to counterfeit Indian currency or material.
- The new Bill introduces the offense of possessing property derived from a terrorist act, punishable if held knowingly. Similarly, harboring a terrorist is punishable if done both voluntarily and knowingly.
- The Bill also includes the offense of recruiting and training individuals for terrorist acts, mirroring sections 18A and 18B of the UAPA.
- Notably, an officer, not below the rank of Superintendent of Police, can decide whether to continue prosecuting a terrorist act under the UAPA or the new Bill.
- Punishment for a terrorist act is death or life imprisonment, while those conspiring, abetting, inciting, or facilitating such acts may face imprisonment ranging from five years to life.
- The revised Bill adds a definition of “cruelty” against a woman by her husband and relatives, punishable with up to three years in jail.
- It defines cruelty as willful conduct likely to drive a woman to suicide, cause grave injury, or coerce her to meet an unlawful demand for property or valuable security.
- A new provision stipulates that unauthorized publication of court proceedings related to rape or sexual assault cases without permission is punishable by a two-year jail term and a fine. However, reports on High Court or Supreme Court judgments do not fall under this provision.
- The term ‘mental illness’ in the original Bill has been replaced with ‘unsoundness of mind,’ addressing concerns about the broad scope of the former. The revised Bill also includes the term ‘intellectual disability’ in section 367.
- Mob lynching, initially categorized as a separate offense, is now penalized on par with murder, removing the minimum seven-year sentence from the original Bill.
- Recommendations to criminalize adultery and non-consensual sex between individuals of the same gender have been excluded from the revised Bill.
- The definition of ‘petty organized crime’ has been refined to specify offenses committed by a group or gang, such as theft, snatching, cheating, unauthorized selling of tickets, unauthorized betting or gambling, and selling of public examination question papers.
- On the procedural front, some commendable features include the provision for First Information Reports (FIRs) to be registered by a police officer regardless of where the offense occurred, and efforts to promote the use of forensics in investigations along with the documentation of searches and seizures through videography.
- In the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, the concept of ‘community service’ as a form of punishment for minor offenses has been defined.
- Handcuffing is permitted beyond the arrest stage, and court proceedings can be conducted through audio-visual means.
- The revised Bill does not address concerns about allowing police custody beyond the initial 15 days of arrest, potentially leading to misuse.
- Preventive detention powers now include a strict timeline, requiring the detained person to be produced before a Magistrate or released within 24 hours.
- In the Bharatiya Sakshya (Second) Bill, 2023, the admissibility of electronic evidence is subject to section 63, aligning with the requirement for a certificate under section 65B of the Indian Evidence Act.
Associated Shortcomings:
- Contrary to Union Home Minister assertion that the colonial imprint of the IPC, CrPC, and the Evidence Act has been replaced by a purely Indian legal framework, the new codes do not bring about groundbreaking changes in the policing system, crime investigation, and the conduct of prolonged trials in the country.
- There is uncertainty regarding the inclusion of ‘terrorism’ in the general penal law when it is already punishable under special legislation. Serious charges such as terrorism should not be invoked lightly.
- A significant shortcoming is the failure to clarify whether the new criminal procedure allows police custody beyond the 15-day limit, or if it is merely a provision allowing the 15-day period to extend across any days within the first 40 or 60 days following a person’s arrest.
Conclusion:
The new laws have favorable aspects, but they do not introduce any groundbreaking alterations. It is crucial to recognize that revisions in the law should be guided by a vision for a legal framework that addresses all the deficiencies in the criminal justice system.
