It seems like India’s new era of criminal justice might be here. The Indian Penal Code of 1860 (IPC) , the Code of Criminal Procedure of 1973 (CrPC) and the Indian Evidence Act 1872 (IEA) are being replaced with new laws. In December 2023, three bills in India were said to have received Presidential assent. In 2024, it’s said that the Bharatiya Nyaya Sanhita Act 2023 (BNS) would replace the IPC, the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) would replace the CrPC and the Bharatiya Sakshya Adhiniyam 2023 (BSA) would replace the IEA. What does an ambitious legal makeover look like? How will justice be done in India now, though the heavens fall?
And why now? Why have these laws come along to replace laws that shaped justice in India for decades and decades?
According to Senior Advocate Amit Desai, “I think the three legislations we are, now, talking about are so fundamental to any society. And unlike regulatory laws that may be industry-specific, these three actually impact the entire society and citizenry…. And therefore… these laws have some very serious implications”.
“The challenges of the last 40-50 years is how to ensure that there’s speedy justice & how the rights of victims, the rights of the State and the rights of the accused are balanced… And time has shown that we’ve never been able to really deal with the principles of speedy justice… cases run on for 10, 15 or even 20 years. And that was never the intent of the criminal justice system. So, that is one element which, I think, is a key motivator to bring about the change. The second key motivator is very clearly a need for the introduction of technology in the space, because ultimately, now, the world is heading in the direction of the 21st century. Everything is about technology. So, how do you bring in a lot more technology, both in the context of investigations and in the context of running the litigation in a criminal court? That is a significant motivator”, states Desai.
According to Cyril Shroff, Managing Partner – Cyril Amarchand Mangaldas, “A lot of these legislations, except for the CrPC, are Pre-Independence from the British Raj and while they were effectively drafted at that point of time, there is a general feeling that after 75 years of independence, we need to shed our colonial legacy, Indianize, evolve and apply laws that are meant for today’s India”.
However, Desai comments, “When you look at the Nyaya Sanhita, all the offences are those which are against nature, like body crime or property crime or murder or injury or gender crimes. All of these are crimes across the world that deal with morality… There was nothing colonial to start with and it’s not going to be decolonized because of the change in the title of the legislation…Except for the Nagarik Suraksha, which is a procedural law to ensure that there is some balancing of rights amongst parties, the substantive law was never colonial to start with. As far as the Evidence Act is concerned, when you look at the principle of evidence law, the jurisprudence of evidence underlined is still the same across the world. You may tweak some provisions here and there in an attempt to try and speed up the process of a trial. But, the fundamental principles of relevancy and admissibility are, broadly, the same across the world”.
Desai adds, “I think some of these laws did not need any major or significant alterations. They could have been amended, but they didn’t need to be completely rewritten… There has been, for quite some time, discussion and debate within the Government and the Law Commission to try and see whether we can rework some of these laws… for the comprehensive review of the criminal justice system of the country… In these 3 legislations, there’s a significant overlap, because the Penal Code or the Nyaya Sanhita is the set of provisions which govern society… And then, the question was, ‘How do you ensure these crimes are dealt with in a court?’… So, there are three cohesive legislations and when there was a conversation about a comprehensive review, it was actually to try and ensure that there is a continuous continuum within the three legislations”.
And what could be the broader impact of these new provisions?
Desai declares, “I suppose it’s Indian to the extent that it’s a recognition that there were problems within the Indian policing and therefore, this is now an attempt to have some judicial control over the police in relation to an investigation. So, this recognizes and tries to protect citizens’ rights by having a supervisory body… That is positive and I think it will help improve Indian policing… I think it should hopefully curtail abuses in the system by judicial officers supervising investigations”.
Desai outlines, “In the context of access to justice, what they’ve now done is bring in trial through audio-video, so that’s a major change, Wherever you are now, if you’re in a faraway part of the country, you don’t have to keep flying down or travelling. Video witnesses may appear on VC and evidence can be recorded on VC, so that should hopefully speed up the justice delivery system… So, I think that’s a great positive. The challenge is that I don’t think we are geared up anywhere to have the technology yet. That’s going to take years for the entire country to have that kind of technology”.
“At the court level… I think you have the scope of a fairer justice delivery process… The biggest challenge in the delivery of justice is about how you implement these provisions from the point of view of an investigation or by the judiciary itself. And there, the question is, ‘How do you train the investigators?’ If you are in a position to train the investigators to be impartial and objective, then I think there’s an excellent opportunity to bring a fairer justice delivery system”, articulates Desai.
And could there be any negative repercussions of these new provisions?
Among other points, Desai conveys, “…When it comes to the concept of judicial custody and once the police investigations are concluded and the accused is sent to jail, earlier, they used to contemplate… medical custody and judicial custody… If you had got parole to go for a ceremony or somebody’s marriage, there was a police officer who would come along with you; it’s called parole custody, which was contemplated. All this was in the interest of the human rights of prisoners. What seems to have happened is that by putting in a tighter and a stricter definition of judicial custody, they’ve excluded all of this”.
Watch the entire interaction here:
