Analyzing India's New Criminal Law Amendment Bill - Reassessing The Concept Of Justice

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T17:59:25.686Z

Updated: 2026-08-30T07:07:09.395Z

ANALYZING INDIA'S NEW CRIMINAL LAW AMENDMENT

BILL: REASSESSING THE CONCEPT OF JUSTICE Upasana Yadav, Army Institute of Law, Mohali Introduction The Indian legal system has a strong foundation in colonial history, which is why it's crucial to modernize it to better align with Indian demographics, geography, and criminology. On December 12, 2023, Amit Shah, the Union Home Minister, proposed three Bills in the Parliament aimed at replacing the Indian Penal Code (IPC), 1860 with the Bharatiya Nyaya Sanhita (BNS), 2023, the Indian Evidence Act, 1872 with the Bharatiya Sakshya Bill, 2023, and the Code of Criminal Procedure (Cr. P. C), 1973 with the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. These changes seek to update the criminal justice system by dealing with old laws and advocating for fairer justice that fits Indian demographics, geography, and criminology.

The changes involve updated crimes and punishments, faster procedures to lessen wait times, victim-focused methods with increased assistance, incorporation of technology, and legal changes like Alternate Dispute Resolution (ADR). While some back the revisions, worries linger about how they may affect justice, governance, and societal dynamics, leading to demands for a comprehensive inquiry before being put into effect. Need for New Criminal Laws • Addressing out-dated frameworks: The existing Criminal Laws including IPC, 1860, Indian Evidence Act, 1872 and Cr. P. C, 1973 were formulated in the 19th C for British governance, focusing more on oppression than serving justice democratically. In addition, these laws fail to address the intricacies and nuances of present legal and societal environment, making a complete update essential.

For instance, Sedition (Section 124A of IPC, 1860) was introduced by the British to put legal restrictions on the freedom of speech and expression of Indians. • Countering modern criminal activities: With modernization and technological advancements, new crimes have emerged like cybercrime, financial fraud, organized crimes, and so on, but existing laws does not have any provisions and punishments to tackle these crimes effectively. So we need specialized legal frameworks that can handle the intricacies of digital evidence, cyber forensics, and transactional criminal activities. • Advancing procedural efficiency: 3. Due to the intricate and inconvenient procedures of Cr. P. C, the trials consume significant time and justice is delayed.

Simplifying procedural requirements and introducing streamlined process are crucial to expedite the delivery of justice and reduce the burden on the judiciary. As of 2024, more than 5 crores of cases are pending in the Indian courts most of which are pending in the district courts of India. • Incorporating technological advancements: With the fast technological development in crimes like cybercrime, traditional methods of investigation and evidence collection have become ineffective. To remain relevant in the digital age, new legislation must include provisions to use advanced technology for law enforcement. Bharatiya Nyaya Sanhita (BNS), 2023 The Indian Penal Code (IPC), 1860 has been replaced with Bhartiya Nyaya Sanhita (BNS),

2023. The BNS has retained existing provisions of IPC, 1860 on murder, causing hurt, and

assault; and included major provisions1: § Definition of Terrorist Act: Under Sec. 113 of BNS, 2023, the 'terrorist act' is defined, which is adopted from Sec. 15 of the Unlawful Activities Prevention Act (UAPA). Terrorist act includes the intention/act to threaten the unity, integrity, security or economic security of India, or strike or likely to strike terror in the people or any section of people residing in India. Punishment for committing a terrorist act is life imprisonment, or death, and a fine. § Offences against Women: Exception 2 of Sec. 63 of the BNS says that sexual intercourse between a husband and his wife will not amount to rape if the wife is above

18 years of age. Under Sec. 69 of the BNS if any person has sexual intercourse with a

1 PW Only IAS, Parliament Passes Three New Criminal Law Reform Bills, December 28, 2023, available at https://pwonlyias. com/current-affairs-by-date/? =&M=12&D=28&Y=2023 woman by any deceitful means (a false promise to marry) then such person is liable for imprisonment (up to 10 years) and a fine. But such an act of the person will not amount to rape. § Removal of Sedition: In the case of S. G. Vombatkere v. Union of India2, the Supreme Court has held that all proceedings, trials and appeals related to Sedition (Sec. 124A of IPC) are suspended prima facie. There is no provision for Sedition in the BNS. Under Sec. 152 of BNS, any act or armed rebellion done to threaten the unity and sovereignty of India is punishable with imprisonment (7 years or extends up to whole life).

§ Increased punishment for Mob-lynching: Section 103(2) of the BNS says that if a mob is killed by a group of people based on race, caste, gender, personal belief, language or place of birth then they shall be liable for life imprisonment or death and fine. In the case of Tehseen S Poonawala3, the Supreme Court has issued guidelines on mob lynching. § Redefined Petty Organised Crime: Section 112 of the BNS has specifically defined 'petty organised crime' as "whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime. 4" The punishment is 1 year of imprisonment extending up to 7 years with a fine.

§ Unauthorised publication of court proceedings: Under Sec. 73 of the BNS whosoever publishes the court proceedings related to any matter of rape or sexual offences without the permission of the Court then such person will be punished with 2 years of imprisonment with a fine. § Mental Illness replaced with Unsoundness of Mind: it replaced 'mental illness' with 'unsoundness of mind' as the term mental illness was very wide and it might include mood swings or voluntary intoxication.

2 (2022) 7 SCC 433

3 AIR 2018 SC 3354

4 Aaratrika Bhaumik, Revised criminal law bills

Key changes explained, December 18, 2023, available at https://www. thehindu. com/news/national/revised-criminal-law-bills-the-key-changesexplained/article67637348. ece Critical Analysis The Bharatiya Nyaya Sanhita (BNS) has made notable progress in reshaping India's legal system, especially through the inclusion of community service as a penalty in Section 4(f). Yet, a controversial topic is keeping the minimum age limit for criminal responsibility low: seven years, or twelve years for children who don't understand the outcomes of their actions. This falls well below the UN's suggested minimum age of twelve, sparking worries about premature criminalization and its compliance with international juvenile justice norms.

Even though Section 377 of the IPC has been abolished, BNS Clause 38 still permits selfdefence in instances of attacks driven by unnatural impulses, possibly leading to serious consequences such as death. This clause differs from recent Supreme Court rulings (Navtej Singh Johar v. UOI5) that acknowledge LGBTQ+ rights, underscoring a gap between legal changes and societal norms on sexual orientation and personal rights. Section 88 of the BNS allows induced miscarriages solely to preserve a woman's life, despite advancements seen in legislation such as the Medical Termination of Pregnancy Act (MTP). This limitation impacts reproductive rights, highlighting a disparity between laws and changing societal attitudes. Furthermore, there is a lack of clarity in the introduction of community service as no clear definition or scope is given.

This uncertainty raises worries about uneven implementation in different areas and how it affects the fairness and efficiency of sentencing. Additionally, the BNS still includes IPC provisions regarding rape, even though it does not adopt suggestions from the Justice Verma Committee and Supreme Court orders to expand the definition of rape and remove exceptions for marital rape. This continues to perpetuate issues in tackling sexual violence and guaranteeing justice for those affected. Ultimately, despite progress in legal reform, the BNS needs further improvements in juvenile criminal liability, LGBTQ+ rights, reproductive autonomy, sentencing clarity, and sexual violence reforms.

5 AIR 2018 SC 4321

Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 The Code of Criminal Procedure (CrPC), 1973, has been replaced with Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023. While BNSS has retained most of its existing provisions, it has included6: § Detention of under trials: Section 479 of BNSS says that under trial individuals can be released on personal bond. But this does not apply to severe offences, life imprisonment cases, offences punishable by death, or many pending cases. § Forensic investigation: Under Section 176 of BNSS, the police officer must conduct a forensic investigation if the offence reported is punishable with a minimum of seven years of life imprisonment. The forensic expert must visit the crime scene and collect the evidence electronically.

§ Timeline for the procedure: It includes medical reports for rape survivors in 7 days, court decisions in 30 days (which can be extended to 45), updates on victim progress in 90 days, and framing of charges within 60 days after the initial hearing. § Hierarchy of Courts: The hierarchy of India's criminal courts, from Magistrate's Courts to the Supreme Court, is structured by the CrPC. Before, cities with more than a million residents could have Metropolitan Magistrates, but the BNSS removed this provision and the position of Metropolitan Magistrates. Critical Analysis BNSS contains only a few unintended mistakes, particularly the clause that permits filing for discharge after framing of charges. These can be readily rectified through some revisions to the wording. On the whole, the majority of the revisions are well-intended and necessary.

Nevertheless, a few of the changes are quite concerning. One example is expanding the authority to conduct investigations during search and seizure, obtaining samples from a wider group of individuals, limiting the ability to commute sentences, reintroducing preliminary 6 PRS India, The Bharatiya Nagarik Suraksha Sanhita, 2023, available athttps://prsindia. org/billtrack/thebharatiya-nagarik-suraksha-sanhita-2023 inquiries before filing a First Information Report (FIR), reinstating the use of handcuffs, and lastly, modifying the remand procedure. These are some of the problematic aspects that should be approached with caution. Ideally, it is important to incorporate better funding and infrastructure, along with enhanced safeguards, into the criminal justice administration to complement any procedural law more effectively.

Bharatiya Sakshya Bill (BSB), 2023 The Indian Evidence Act, 1872 has been replaced with the Bhartiya Sakshya Bill, 2023. While mostly keeping its rules on confessions, the importance of facts, and the obligation of proving, it has included the following provisions7: § Documentary Evidence: BSB expands the definition of documents to include electronic records, in addition to conventional forms such as writings, maps, and caricatures. Original evidence consists of authentic records, digital data, and video footage. Additional proof now includes verbal and written confessions, along with statements from expert analysts of documents. § Oral testimony: BSB enables the electronic presentation of oral evidence, making it easier for witnesses, defendants, and victims to give testimony remotely.

§ Acceptability of Electronic Records: According to Section 61 of the BSB, electronic and digital records, such as those from semiconductor memory, smartphones, and emails, are considered equal to paper records in terms of legal validity. § Revised Explanation on Joint Trials: BSB specifies that joint trials can also involve situations where one defendant is missing or has not acknowledged an arrest warrant, streamlining processes for group crimes. Critical Analysis: The Bharatiya Sakshya Bill (BSB) recognizes the vulnerability of electronic records to manipulation, as highlighted by the Supreme Court in 2014 and reaffirmed by the Standing Committee on Home Affairs in 2023. However, there are no specific measures in place by the BSB to guarantee the credibility and security of electronic and digital records while conducting an investigation.

The BSB still follows the rule in the Indian Evidence Act that permits information given by an accused in police custody to be used as evidence if it is directly related to a discovered fact. In 2003, the Law Commission criticized this rule, proposing that information obtained through threat, coercion, violence, or torture should not be allowed as evidence. Furthermore, the BSB upholds the difference in admissibility of evidence obtained while in police custody versus outside of it, despite challenges advocating for equal treatment of statements regardless of custody. Conclusion It is famously said that law and justice do not always align, and when they do not, dismantling the law could be the initial move towards reforming it.

To sum up, despite the improvements in India's criminal laws such as better acceptance of digital evidence and more efficient processes, there are still doubts about protecting electronic records, holding juveniles accountable for crimes, ensuring LGBTQ+ rights, and allowing evidence gathered in custody to be used. Continuous examination and possible modifications are necessary to guarantee fair and efficient justice administration.