• UGI USER
  • Jun 29, 2024
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WHY THE HURRY?

Syllabus:

GS 2:

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

Why in the News?

  • The new criminal laws—the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam—are set to replace the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act on July 1.
  • Concerns about institutional readiness and potential erosion of civil liberties have sparked widespread debate.
Source: HT

Overview of Confusion:

  • Upcoming changes: New criminal laws come into force on July 1, bringing potential confusion in criminal justice administration.
  • Expanded powers: Concerns arise about regressive provisions that expand police powers and dilute civil liberties.
  • Positive changes: While some positive changes exist, our institutions lack the capacity to implement them effectively.
  • Need assessment: There has been no reliable and independent assessment of institutional preparedness across the police, courts, and prisons.
  • Implementation concern: Questions arise about why these provisions are being rolled out without ensuring institutional readiness.
About New Criminal Law Bills

Bharatiya Nyaya (Second) Sanhita, 2023:

Major Provisions

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.

Terrorism and Organized Crime:

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

Mob Lynching:

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

Sexual Offences Against Women:

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

Sedition Revisions:

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

Death by Negligence:

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

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 :

  • Detention Conditions: Alters rules for undertrials, restricting release on personal bond for severe offenses.
  • Medical Examination: Allows any police officer to request medical examinations, broadening accessibility.
  • Forensic Investigation: Mandates forensic investigation for crimes punishable by at least seven years’ imprisonment.
  • Sample Collection: Extends power to collect finger impressions and voice samples.
  • Timelines: Introduces strict timelines for various judicial processes.
  • 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

  • Documentary Evidence: Expands the definition to include electronic records.
  • Oral Evidence: Permits electronic provision of oral evidence.
  • Admissibility of Electronic Records: Grants equivalent legal status as paper records.
  • 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.

New Criminal Laws’ Challenges:

  • Legislative overhaul: The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) will replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA).
  • Decolonization claim: The new laws were presented as decolonizing our criminal law, but 75% of the existing provisions remain unchanged.
  • Colonial legacies: Our criminal justice institutions are still plagued by colonial legacies and need fundamental reform.
  • Excessive power: New provisions confer excessive police power, using vague definitions of offenses and extended police custody durations.
  • Inadequate protection: Positive changes like timelines and scientific investigations lack corresponding procedural protections and institutional capacity.

Concerns Over Police Powers

  • Extended custody: Section 187 of the BNSS increases police custody limits from 15 days to 60 or 90 days.
  • CrPC comparison: The CrPC allows magistrates to extend custody beyond 15 days, but the BNSS deletes limitations, allowing prolonged police custody.
  • Vague offenses: The addition of vague offenses grants significant police powers, raising concerns for civil liberties.
  • Potential abuse: Provisions on “false and misleading information” and “acts endangering sovereignty” are extraordinarily vague, leading to potential abuse.
  • Trials in-absentia: The BNSS permits trials in-absentia, suffocating the accused’s right to defend themselves.

Retention of Existing Laws

  • Repeal necessity: Retaining large parts of existing laws raises questions about the need to repeal them.
  • Amendment option: Could the changes have been made through amendments rather than complete repeal?
  • Limited application: The new laws provide for a limited application of the IPC, CrPC, and IEA for pending proceedings before July 1.
  • Clarity issues: The provisions fail to provide sufficient clarity on the applicability of old and new laws in various scenarios.
  • Judicial confusion: These issues have led to contradictory judgments by High Courts, highlighting the need for clearer guidelines.

Institutional Readiness

  • Serious concern: Institutional readiness for these laws is a serious concern, requiring a thorough nationwide audit.
  • Training necessity: Police personnel and judicial officials need to be knowledgeable about these laws from the very first step of registering FIRs.
  • Assessment gap: There has been no in-depth assessment of preparedness across different criminal justice institutions in various states.
  • Training sessions: Simply stating the number of training sessions and attendees is insufficient to ensure preparedness.
  • Implementation delay: The implementation of these laws must be postponed until a thorough and independent audit of institutional readiness is conducted nationwide

Way Forward

  • Conduct audits: Perform thorough and independent audits of institutional readiness across police, courts, and prisons.
  • Capacity building: Invest in training programs to ensure all personnel are well-versed with the new laws and their implications.
  • Clear guidelines: Establish clear guidelines on the applicability of old and new laws to prevent judicial confusion and contradictory rulings.
  • Strengthen safeguards: Introduce robust procedural protections to balance the expanded police powers and protect civil liberties.
  • Pilot programs: Implement pilot programs in select regions to test the effectiveness and readiness of institutions before nationwide rollout.
  • Public awareness: Launch public awareness campaigns to educate citizens about the changes and their rights under the new laws.
  • Continuous evaluation: Set up mechanisms for continuous evaluation and feedback to identify and address gaps in implementation.
  • Legislative review: Regularly review and amend the new laws to ensure they align with international standards and best practices for human rights.

Conclusion

Implementing the new criminal laws without adequate preparation risks undermining the justice system and civil liberties. Comprehensive audits, capacity building, and clear guidelines are essential to ensure these laws enhance, rather than hinder, justice and human rights.

Mains Practice Question

Discuss the potential impact of India’s new criminal laws on civil liberties and institutional readiness. What measures should be taken to ensure a smooth transition and uphold human rights.

Associate article:

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