New Criminal Laws - Colonial To Contemporary
Author: LawSphereX
Category: Criminal Law
Published:
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NEW CRIMINAL LAWS: COLONIAL TO CONTEMPORARY
Amrita Kaur Johar, Assistant Professor of Law at Manikchand Pahade Law College, Chhatrapati Sambhajinagar (MS)
ABSTRACT
The heritage of criminal laws in our country have remained age old for around 150-200 years and are deep rooted in colonial era. The basic foundation of our criminal administration of justice is adversarial which has been derived from the common law system. With the recent move of the Government by replacing these age-old laws of Indian Penal Code, Criminal Procedure Code and Indian Evidence Act with Bhartiya Nyaya Sanhita, Bhartiya Nagarik Suraksha Sanhita and Bhartiya Sakshya Adhiniyam the government has remarked that all the colonial signs and touches in these laws have been removed. The laws are going to match with the needs of modern times and shall expedite the cases and trials in courts. These changes incorporated are with high spirits but at the same time it has also been subjected to criticism by ex-bureaucrats and many experts including retired Judge of the Supreme Court.
These laws are remarked as “Old Wine in New Bottle” as majority of the changes are structural with less substance in them. The decolonization to be met out by these laws has been questioned and also the arbitrary powers given to police authorities has been a matter of concern. Rights of accused and fair trial are at stake. Therefore, questions have also been raised on these laws standing constitutional morality. The proper balance between Victim centric approach and accused rights are not found to be balanced. Although it cannot be denied that there are some positive sides of these changes especially in the area of electronic communication and evidence. The ground reality of success of these laws shall be revealed only with the passage of time.
Keywords: New criminal laws, decolonization, adversarial system, criminal justice, victim centric approach, electronic & digital evidence, rights of accused, fair trial, constitutional morality.
INTRODUCTION
The concept of crime is not new but persists since the evolution of mankind. Criminal Justice is the way in which society tackles the concept of crime. Some societies have very harsh punishments conflicting with the rights and liberties of an individual. Coming to the Indian society itself we can find a lot of transition in the form of Punishments and Criminal Justice. Earlier in the Ancient and Medieval period- trial by ordeal and severe punishments were inflicted. There was no consideration for Human Rights at all. Gradually, with the passage of time and arrival of British in India, system of courts developed as well as the laws were reformed. The laws drafted by Britishers discarded the harsh system of punishments. This led to a major reform in the Criminal Justice.
Coming to the Criminal Justice Administration System, it means all the resources- Police, Courts, Prison administration which are involved in the investigation of crime, determination of guilt and correction through prison system. With the advent of British in India there was a major shift in the Penal Laws as well as the entire Criminal Justice Administration System as they introduced Police, Courts and Prison in India. This is the colonialization rooted in Indian Criminal Justice Administration System and is still reflected in our entire system.
ADVERSARIAL AND INQUISITORIAL SYSTEM
There are two types of legal traditions which decide the process of adjudication and play very important role in Criminal Justice. Adversarial and Inquisitorial systems are the two types. In Common law countries Adversarial system is persistent in which the Prosecution and defence carry out the fact finding and leading of evidence. The parties compete against each other and as a result the Judge acts as a referee to carve out the truth1. In Inquisitorial system the judge himself conducts inquiry and has a very active role in the investigation. In India we follow the Adversarial system which has remained untouched for years together. The recent passage of New Criminal Laws also omits to have any change in the Adversarial system.
The new laws are having changes in structure of the laws and some substantial changes involving electronic evidence, E-filing of FIR, Victim centric approach adopted etc. The basic system still remains on colonial lines that is the common law inherited Adversarial system.
1 Organized Crime Module 9 Key Issues: Adversarial versus Inquisitorial Legal Systems (unodc.org)
CHANGES INCORPORATED
Let us have a brief idea of the major changes introduced in the three new criminal laws. In the new Indian Penal Code that is Bhartiya Nyaya Sanhita the chapter of Offences against women and children has been separated from the Offences against Human Body chapter and has been made as a separate chapter. It retains IPC provision on rape, voyeurism, stalking, and insulting modesty, however, raises the age threshold for gangrape victims from 16 to 18. It Criminalizes sexual intercourse by deceitful means or false promises. In the chapter of Offences against Human Body new offences like organized crime, terrorism, and or grievous hurt by a group on certain grounds have been introduced. Terrorism has been defined as acts threatening national unity, public intimidation, or disturbance of public order and prescribes severe penalties for attempting or committing terrorism.
Organized crime includes offences like kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime and imposes stringent punishments for attempting or committing organized crime. Mob Lynching has been introduced a new offence for murder or grievous hurt by five or more people on specified grounds (race, caste, sex, language, or personal belief) and prescribes minimum seven years imprisonment to life imprisonment or death penalty. In accordance with the Supreme Court ruling, Adultery also has been removed from BNS. 2 In the new Criminal Procedure Code that is Bhartiya Nagarik Suraksha Sanhita the provision of Designated police officers that is Police control room in every district has been added. The provision of trial in absentia of proclaimed offenders is also a strong move taken as ex parte proceedings have always been more common in civil proceedings.
Witness protection scheme has been added as an innovative measure and the use of audio- video electronic means for search and seizure has also been added which is the need of the hour. Trials may be conducted through video conferencing and E filing of FIRs has also been introduced. The concept of zero FIR has gained rampant popularity as it will address the issues of the misses or delays in lodging FIRs. Now, the police are also supposed to inform the progress of the investigation to the victim. Moreover, specific timelines have been prescribed for time-bound investigation & pronouncement of judgements within 45 days which may expedite the proceedings. The police
2 Indian Penal code and Bhartiya Nyaya Sanhita
custody period of 15 days may be now granted in staggered manner up to a period of 60 days or 90 days depending on the severity of the offence. 3 In the new Evidence Act of Bhartiya Sakshya Adhiniyam no material changes have been observed except only with respect to streamlining electronic evidence. The definition of Document has been updated to include electronic and digital records. Similar change has been observed in the definition of Evidence as well. Trial in absence of proclaimed offender or absconded person shall be deemed to be a joint trial for consideration of proved confession affecting person making it. Facts of which court may take judicial notice now includes international treaty, agreement or convention with country or countries by India, or decisions made by India at international associations or other bodies as well.
Admissibility of electronic records has been streamlined. 4
ANALYSIS OF CHANGES INCORPORATED
The three new criminal laws when introduced in the Lok Sabha for the first time in August 2023, Union Home Minister Mr. Amit Shah mentioned that the essence of the new laws lies in upholding the constitutional rights of Indian citizens, focusing on delivering justice rather than punishment. He emphasized that the existing laws, enacted by the British Parliament, were remnants of colonialism. He highlighted that such signs had been eliminated in as many as 475 instances. The new laws, crafted with an Indian perspective, will revolutionize the criminal justice system. The Government is confident that the new laws will bring about a significant transformation, which will become apparent in the days to come. The Government has a strong stand of the big change that will come with the new laws implemented. Times to come shall be evident of the same.
Placing individuals in police custody increases the threat of custodial violence and torture, infringing upon the arrested person's fundamental rights protected under Article 21, as established in the DK Basu case. 5 At this juncture a critical issue in the criminal justice system is under concern as prolonged detention can indeed increase the risk of evidence tampering, coercion, or manipulation, which can further compromise the accused's right to a fair trial. This is especially worrisome for individuals from socially disadvantaged backgrounds who may
3 Criminal procedure code and Bhartiya Nagarik Suraksha Sanhita
4 Indian Evidence act and Bhartiya Sakshya Adhiniyam.
5 DK Basu v. State of West Bengal, (1997) 1 SCC 416.
lack access to quality legal representation, making them more vulnerable to miscarriages of justice. It's essential to ensure that detainees have timely access to legal counsel, transparent evidence handling procedures, and regular judicial oversight to prevent abuse of power and protect the integrity of the legal process. Additionally, addressing systemic inequalities and providing adequate legal aid can help and ensure access to justice for all. 6 Thus, practically speaking these changes may adversely affect the plight of accused persons and even the convicts as they may not be able to have access to legal aid in a timely manner. This may affect their fundamental rights and also the dispersion of justice.
LEGISLATURE HAD GOLDEN OPPORTUNITY-
It has been observed that the Legislature has made use of the opportunity to change the structure of the laws, remove words which are colonial or no longer in use. But, some of the provisions have been reframed, like Sedition, a new version of it is introduced under Section 150 to punish acts "endangering the sovereignty, unity and integrity of India". Many offences which are reframed like in case of Sedition or the offences which have been newly introduced like Terrorism have several lacunae and ambiguities. On the point of interpretation this may pose challenges for the judiciary. Terrorism is already covered under special legislation, the same provision as it is has been added in the BNS. Thus, this golden opportunity that was available with the legislature has not been utilized in the appropriate manner.
The system inherently adversarial carries a lot of delays in it and these delays need to be addressed with changes in the steps followed for inquiry, investigation and trial. In these laws changes have been made as to electronic evidence or communication which is a positive move but at the same time procedures for collection of evidence, inquiry, trial etc. remain intact. Thus, it can be concluded that the legislature could have utilized this golden opportunity of bringing out the change more effectively.
NEW LAWS AND CONSTITUTIONAL MORALITY
On the point of accused rights, liberty, fundamental rights of prisoners and legal aid there have been various judgments of the Supreme Court from time to time. But, the new laws have been observed to be more Victim centric and criticism has been raised as to these being violative of 6 https://www.nujssacj.com/post/out-of-the-frying-pan-and-into-the-fire-extension-of-police-custodyunder-bnss
rights of the accused. There should be a balance approach between the rights of accused and victim as the procedures are pre-trial and during trial when the accused is still not proven guilty. The Hon’ble Supreme Court's decision in Mithu v. State of Punjab 7indeed struck down Section
303 of the Indian Penal Code (IPC) as unconstitutional. This section had mandated a death
sentence for murders committed by life convicts. Under BNS it appears that the spirit of Section
303 has been revived in Section 102, which now prescribes either death or life imprisonment
for the remainder of the convict's natural life if they commit murder while serving a life sentence. This development highlights the ongoing debate and refinement of criminal justice policies in India, balancing punishment with constitutional rights and principles of justice. The Supreme Court of India has established guidelines for the use of handcuffs, emphasizing the importance of humane treatment and adherence to Article 21, which guarantees the right to life and personal liberty8. It has been held that handcuffs should not be used as a routine measure, as it is considered inhumane and unreasonable. In exceptional cases where handcuffs are necessary, the authorities must document the reasons for their use. Prisoners undergoing trial cannot be handcuffed without obtaining permission from the judicial authorities.
9 The Standing Committee's 2023 recommendation to exclude economic offenses from cases where handcuffs may be used aims to further refine the guidelines. This has been removed from BNS Second. 10 These developments reflect the ongoing efforts to balance public safety concerns with the need to protect individual rights and dignity within the criminal justice system. The scope of mandatory bail in case of multiple charges and limited plea bargaining may lead to increased detention periods, contributing to prison overcrowding The staggering of police custody periods, intended to prevent prolonged detention, may inadvertently exacerbate the issue. India's prisons face significant challenges, with overcrowding due to 130% occupancy rate, housing over 5. 5 lakh prisoners as of December
2021. Under-trial prisoners form 77% of the total prison population, with many awaiting trials
for extended periods. These statistics underscore the need for reform and efficient judicial processes to address prison congestion, ensure timely trials, and protect the rights of under-trial
7 AIR 1983 SCC 277
8 Prem Shankar Shukla Vs. Delhi Administration AIR 1980
9 Citizens for Democracy v. State of Assam 1995 3 SCC 743
10 https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-second-sanhita-2023
prisoners.11 Prison forms one of the most important pillars for correctional measures and reformation under the Criminal Administration of Justice. But, overcrowding of prisons is a very serious problem and causes threat that such prisons may create more hardened criminals than reformed individuals. The new laws have not addressed the provisions of Bail and Custody in an appropriate manner and this may gravely affect the prison system in India.
CONCLUSION
Since, the time of inception new criminal laws have been subjected to a long-standing debate is going on about the decolonization of British made laws. It has been a critical perspective on the recent changes to the laws that the core of the previous laws remains intact, with only superficial modifications. It retains 80% of the old provisions, indicating minimal substantive change. These laws grant increased powers to the police, potentially infringing on individual rights. Increased chances of arbitrariness at the hands of police encroach upon civil liberties, undermining citizens' freedoms. A thorough examination of the laws and their implications is crucial to ensure that they serve the intended purpose of promoting justice and protecting citizens' rights. 12 Thus, the laws are welcomed by some sections of the society but have been criticized as well.
The members of legal fraternity for instance Justice Chelameswar former Supreme Court Judge made a statement about the new criminal laws that these are “Old wine in new bottle, there is a change in nomenclature. But basically, the replacements are cosmetic. It is no more than window dressing. ’’13 This has raised concerns about the effective implementation of the laws. The changes have been incorporated but the practical implementation requires infrastructure as well as training of the Judges, Lawyers, Court staff, Police and officials. The ground reality of success of all the three laws will be revealed with the passage of time only.
11 Prison Statistics of India (2021), National Crime Records Bureau.
12 India’s New Criminal Laws Face Backlash: Experts Warn of Increased Police Powers - Frontline (thehindu.com) 13https://www.hindustantimes.com/india-news/new-criminal-laws-old-wine-in-new-bottles-says-retired-scjudge-justice-chelameswar-101720009249309.html
REFERENCES
New criminal laws, decolonisation and everyday legality in India (siasat.com) • India’s New Criminal Laws Face Backlash: Experts Warn of Increased Police Powers - Frontline (thehindu.com) • Organized Crime Module 9 Key Issues: Adversarial versus Inquisitorial Legal Systems (unodc.org) • Prison Statistics of India (2021), National Crime Records Bureau. • https://www.hindustantimes.com/india-news/new-criminal-laws-old-wine-in-newbottles-says-retired-sc-judge-justice-chelameswar-101720009249309.html • https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-second-sanhita-2023 • https://www.nujssacj.com/post/out-of-the-frying-pan-and-into-the-fire-extension-ofpolice-custody-under-bnss • www.prsindia.org • www.google.com • www.indiankanoon.org