• UGI USER
  • Jul 17, 2024
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NEW CRIMINAL CODES: SUPERFICIAL CHANGES AND MISSED OPPORTUNITIES

Syllabus:

GS 2 :

  • Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

Focus:

The new Bharatiya Nyaya Sanhitas have been introduced as a major reform in India’s criminal justice system, replacing colonial-era laws. However, they face criticism for being superficial, lacking substantial changes, and potentially worsening issues like low conviction rates and lengthy trials.

Source: HT

Introduction and Overview

  • Debate Needed: The government must show humility and contrition to reopen and discuss the new criminal codes through an amendment process to ensure comprehensive reform.
  • Superficial Changes: The three new codes are criticized for being cosmetic, superficial, and vain, lacking substantial, fundamental, or structural reforms needed to improve the criminal justice system.
  • Marginal Modifications: The Bharatiya Nyaya Sanhita (BNS) modifies only 175 out of 511 IPC provisions, resulting in a mere 2.24% real change with eight new sections.
  • Colonial Legacy: The codes fail to decolonize or remove the colonial curse of sedition, merely renaming it and enhancing penalties, which perpetuates state oppression.
  • Opposition Inputs Missing: The codes were pushed through Parliament without significant input from the opposition, leading to missed opportunities for meaningful and inclusive reforms.
  • Lack of Transparency: The process lacked transparency and accountability, leading to an ineffective reform initiative that does not address the core issues of the criminal justice system.
About New Criminal Law Bills

Bharatiya Nyaya (Second) Sanhita, 2023:

Major Provisions

1.  Offences and Incorporation:

  • BNS2 replaces the IPC, maintaining existing provisions while introducing new offenses like organized crime, terrorism, and group-related grievous hurt or murder.
  • Community service is introduced as a form of punishment.

2.  Terrorism and Organized Crime:

  • Terrorism and organized crime are defined, with penalties ranging from death or life imprisonment to fines.

3.  Mob Lynching:

  • BNS2 identifies mob lynching as a punishable offense, carrying life imprisonment or the death penalty.

4.  Sexual Offences Against Women:

  • Raises the age threshold for gangrape victims and criminalizes deceptive sexual acts or false promises.

5.   Sedition Revisions:

  • Eliminates the sedition offense, focusing on penalizing activities related to secession, armed rebellion, or actions endangering national sovereignty.

6.  Death by Negligence:

  • Elevates punishment for causing death by negligence from two to five years under Section 304A of the IPC.

7.   Supreme Court Compliance:

  • Aligns with Supreme Court decisions, excluding adultery as an offense and introducing life imprisonment alongside the death penalty for certain offences.

Criticism:

  • Criminal responsibility age remains low.
  • Inconsistencies in child offense definitions.
  • Concerns over sedition provisions.

Bharatiya Nagarik Suraksha (Second) Sanhita, 2023:

Major Provisions :

1.   Detention Conditions: Alters rules for undertrials, restricting release on personal bond for severe offenses.

2.   Medical Examination: Allows any police officer to request medical examinations, broadening accessibility.

3.   Forensic Investigation: Mandates forensic investigation for crimes punishable by at least seven years’ imprisonment.

4.   Sample Collection: Extends power to collect finger impressions and voice samples.

5.   Timelines: Introduces strict timelines for various judicial processes.

6.   Court Hierarchy: Eliminates the role of Metropolitan Magistrates.

Criticism:

  • Lack of safeguards in property attachment.
  • Restrictions on bail for multiple charges.
  • Contradictory directives on handcuff use.

Bharatiya Sakshya (Second) Bill, 2023:

Major Provisions 

1.  Documentary Evidence: Expands the definition to include electronic records.

2.  Oral Evidence: Permits electronic provision of oral evidence.

3.  Admissibility of Electronic Records: Grants equivalent legal status as paper records.

4.  Joint Trials: Introduces joint trials for absent accused.

Criticism:

  • Admissibility issues of information from accused in custody.
  • Unincorporated Law Commission recommendations.
  • Lack of safeguards against tampering of electronic records.

Structural Reforms and Missed Opportunities

  • Non-Substantial Changes: Changes in the BNS, such as condensing chapters, are largely superficial and do not address deeper systemic issues, resulting in missed opportunities for meaningful reform.
  • Sedition Issue: Renaming sedition as Deshdroh with harsher penalties betrays the Supreme Court’s orders and perpetuates state oppression, undermining the principles of justice and freedom.
  • Remand Periods: The altered remand periods in the Bharatiya Nagarik Suraksha Sanhita (BNSS) can lead to increased harassment and uncertainty for undertrials, affecting their legal rights.
  • Need for Recorders: Introducing Recorders, as in the UK, could help manage less complex cases and reduce arrears in the criminal justice system, improving overall efficiency and fairness.
  • Consultation Absence: Broad-based consultations were missing, leading to reforms that do not adequately address the needs of the criminal justice system or include diverse perspectives.
  • Law Commission’s Role: The absence of reference to the Law Commission indicates a lack of thorough examination and input from experts, which is crucial for effective legal reform.

Colonial and Symbolic Issues

  • Sedition’s Reincarnation: The unchanged core of sedition laws and the increased penalty reflect a superficial approach to decolonization and a missed opportunity to address colonial legacies.
  • Macauley’s Influence: The retention of sedition laws, despite promises of reconsideration, shows a lingering colonial influence that undermines efforts to modernize the legal system.
  • State Oppression: The harsher penalties for sedition signal a continued potential for state oppression, especially against the media and dissenters, threatening democratic principles.
  • Supreme Court Betrayal: Enhancements to sedition laws contradict statements made to the Supreme Court and undermine judicial authority, reflecting poorly on the government’s commitment to justice.
  • Fourth Estate Threat: The tougher sedition laws pose a threat to the freedom of the press and those who challenge the government, compromising the role of the media in a democracy.
  • Symbolic Reform: The superficial changes fail to address the deeper, symbolic colonial legacies within the criminal justice system, missing an opportunity for meaningful transformation.

Impacts on Undertrials and Judicial Processes

  • Damocles’ Sword: The new laws allow for intermittent remand periods, increasing the potential harassment and uncertainty for undertrials, affecting their legal rights and due process.
  • Retrograde Explanation: The government’s defense of piecemeal remand periods is seen as regressive and unnecessary, complicating the judicial process and increasing potential harassment.
  • Interrogation Efficiency: Effective interrogation should be direct and immediate, given the arrest is based on solid pre-existing material, reducing unnecessary detention and harassment.
  • Judicial Divergence: The ongoing judicial divergence on remand periods indicates a need for legislative clarity and consistency, which was not addressed in the new codes.
  • Supreme Court Wait: Parliament should have waited for the Supreme Court to resolve conflicting judgments on remand periods, ensuring a more coherent and just approach to detention.
  • Harassment Potential: The revised remand rules could lead to increased harassment of detainees, undermining their legal rights and due process, making the justice system more oppressive.

Way Forward/ Recommendations for Effective Reforms

  1. Innovative Approaches: Structural reforms, such as the institution of Recorders, could significantly reduce arrears and improve case management, making the justice system more efficient.
  2. Senior Advocates’ Role: Utilizing less active senior advocates for temporary judicial posts could enhance the efficiency of the criminal justice system, addressing case backlogs effectively.
  3. Parliamentary Debate: Reopen and thoroughly debate the new criminal codes in Parliament to incorporate diverse perspectives and ensure comprehensive reform.
  4. Substantial Changes: Implement deeper, structural reforms rather than superficial modifications to address the core issues of the criminal justice system.
  5. Sedition Law Reconsideration: Revisit and revise the sedition laws to align with democratic principles, reducing the potential for state oppression and protecting free speech.
  6. Improved Remand Rules: Clarify and streamline remand rules to prevent harassment of undertrials and ensure efficient and fair judicial processes.
  7. Institution of Recorders: Introduce Recorders to handle less complex cases, reducing arrears and improving the efficiency of the criminal justice system
  8. Experiential Consultations: Broad-based and experiential consultations are essential for effective reform, involving a representative sample of stakeholders to ensure diverse perspectives.
  9. Transparency and Accountability: Ensuring transparency and accountability in the reform process is crucial for gaining public trust and achieving meaningful change in the criminal justice system.
  10. Law Commission Involvement: Future reforms should involve the Law Commission to ensure thorough examination and expert input, leading to more effective and comprehensive legal reforms.
  11. Focus on Core Issues: Reforms should focus on addressing core structural issues within the criminal justice system rather than superficial changes, ensuring long-term improvements and justice.

Conclusion

The new criminal codes, despite their promise, fall short of addressing deep-rooted issues in India’s justice system. Genuine reform requires structural changes, broad consultations, and a focus on transparency and accountability to truly enhance judicial efficiency and fairness.

Source:Indian Express

Mains Practice Question:

Discuss the potential impacts of the new Bharatiya Nyaya Sanhitas on India’s criminal justice system. Evaluate whether these reforms adequately address issues such as case backlogs, low conviction rates, and the need for structural changes.

Associated Article:

https://universalinstitutions.com/criminal-law-bills/