Criminal Law Overhaul: Decolonising The Justice System

The Parliament has passed three new Bills which will replace the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act. The laws still require a separate notification for them to be implemented on ground.

The new Bills are namely Bharatiya Nyaya Sanhita (replaces Indian Penal Code), Bharatiya Nagarik Suraksha Sanhita (replaces Criminal Procedure Code) and Bharatiya Sakshya Bill (Indian Evidence Act). The three pieces of legislations have evoked sharp reactions from the legal academics and lawyers who have termed them as a mere “dress-up”. However, the fact that an overhaul of the criminal justice system was necessary is something that cannot be wished away.

The stated purpose of the criminal law reforms is to modernise and decolonise the Indian justice system. The Indian Penal Code was enacted in the year 1870 by Lord Macaulay. At that time, India was under British rule. Therefore, to enable oppression on Indians, the British incorporated draconian provisions like the Sedition which cast a shadow of injustice on Indian citizens. Due to this, a need was felt to overhaul the Criminal justice system to make it people centric and citizen friendly.

Marital Rape

The Bhartiya Nyaya Sanhita Bill which replaces the Indian Penal Code, has incorporated in Section 63 that sexual intercourse with wife who is below the age of 18 years shall be rape. Contrarily, the IPC had set the age as 15 years for sexual intercourse with wife to constitute as rape. The law has complied with the Supreme Court judgment in Independent Thought in 2018. 

Community Service

The Sanhita has introduced community service as a form of punishment for offences such as attempt to suicide, defamation, misconduct in public by drunken person, failure to appear at specified place as required by proclamation. The new code prescribes community service in addition to punishment.

Section 377 Deleted

The new Code has totally done away with Section 377 as an offence. After the landmark judgment of the Supreme Court in Navtej Singh Johar (2018), whereby the Court had decriminalised consensual carnal intercourse, the provision still existed in cases of forced intercourse between men and also in cases of bestiality.

Sedition Takes New Form

Although the new Bill has omitted Sedition as an offence, its Section 150 punishes acts endangering the unity and integrity of India. The Sedition used the word "establishment" and it has been replaced with the country.

Time Limit On Investigations

The Bharatiya Nagarik Suraksha Sanhita postulates that investigation pertaining to all offences must be completed within 90 days of filing of an FIR and if investigation has to continue beyond 90 days, the police will have to obtain leave of the Court. This provision would ensure that investigations by police do not take forever to get completed, which is very often the case,

Zero FIR

A very important step in the direction of women safety and security is the provision for e-FIR. This will enable women who are victims of crime against modesty because of which they feel uncomfortable in approaching the police station. Now, such women will be able to register an FIR through an online medium. Providing convenience to the womenfolk in registering their grievance would help in setting the balls of criminal justice in motion.

Death By Negligence

The BNS prescribes punishment of two to five years for cases of death by negligence. However, it has clarified that doctors can be handed down punishment of maximum two years. Medical negligence cases were governed by Supreme Court’s judgment in Jacob Mathew vs. State of Punjab, which provided strict safeguards.

Police given more powers

The Bharatiya Nyaya Suraksha Sanhita (BNSS) prescribes that the police can obtain fingerprint, voice samples of even those who are not under arrest. The BNSS, therefore, expands the powers of the police.

The laws will be understood in a more coherent manner once they are implemented and the bar and the bench apply it in their daily routine. Its inaccuracies and teething issues will surface and it might require a lot of amendments. It will be interesting to see if the new laws are able to increase citizen satisfaction.