Liberating Justice From Colonial Legacy: Decoding The Nyaya, Suraksha & Sakshya Bills

Need for the Overhaul

The call for an overhaul of criminal laws is not a new development; instead, it has been emphasized repeatedly by various groups, stakeholders, commissions, and institutions. The Criminal Justice System grapples with an array of challenges, including a substantial backlog of cases, procedural discrepancies and inefficiencies concerning arrest, bail, investigation, and trial. Moreover, there exist outdated substantive provisions that merit being repealed whereas acts that need to be penalised in light of social and technological changes are not included. Arbitrariness in police and prosecutorial actions, and lack of modernization in the law of evidence further compound the issues.

Among the total backlog of 5.06 crore cases, criminal cases account for approximately 3.5 crores. The Union Law Minister, in a written response presented in Parliament while addressing the issue of case backlog, attributed this accumulation to a range of factors. These encompass challenges such as the availability of a sufficient number of judges, support staff within the courts, and suitable physical infrastructure. Additionally, the complexity of facts in the cases, the intricacies of evidence, the level of cooperation among various stakeholders including the legal bar, investigation agencies, witnesses, and litigants, as well as the proper application of rules and procedures, all contribute to the existing backlog.

On another count, as per the most recent Prison Statistics India Report released by the National Crime Records Bureau, an astounding 77.1 percent of India's incarcerated population in 2021 comprised undertrial prisoners, while only 22.2 percent were convicts. This stark contrast in the ratio of convicts to undertrials highlights a significant disparity and is a blot on the criminal justice system. When countless individuals find themselves confined in jails for prolonged durations, clinging to the hope of eventual justice, the efficiency of the criminal justice system comes under considerable scrutiny.

An additional noteworthy critique directed towards these prevailing laws is their colonial origin. Many of these laws, rooted in the colonial era, have become antiquated, failing to encompass essential provisions that should warrant penalties. Furthermore, numerous of these provisions do not align with the values enshrined in our Constitution and our society.

Consequently, a pressing need emerged for a comprehensive overhaul, restructuring, and modernization of the framework of criminal laws in India. This undertaking necessitated a substantial effort aimed at enacting comprehensive reforms by rewriting the criminal statutes to cater to the demands of a contemporary and dynamic democracy, while instilling inclusivity and efficiency and upholding the integrity of due process and constitutional principles. This endeavour also aims to ensure the safeguarding of individual rights, community interests, and national security.

The Process and Method of Overhaul

Numerous attempts have been made over time to introduce amendments in response to specific needs, resulting in incremental reforms, tailor-made and aimed at addressing particular challenges and shortcomings. However, these efforts were not comprehensive in nature. To bring about a transformative change, the Union Home Ministry took a significant step by establishing the Committee for Reforms in Criminal Law through a notification dated May 4, 2020. The primary purpose of this committee was to undertake a comprehensive review of the three codes of criminal law.

During the introduction of the three new legislations, Union Home Minister Amit Shah noted that the country's criminal justice system had been operating under laws established during the British colonial era from 1860 to 2023. He emphasized that the introduction of these three laws would herald a substantial transformation in the nation's criminal justice system.

The Minister highlighted that extensive consultations were conducted with multiple stakeholders, including from 18 States, 6 Union Territories, the Supreme Court of India, 16 High Courts, 5 Judicial academies, 22 law universities, 142 Members of Parliament, 270 Members of Legislative Assemblies, and the general public. Furthermore, the Bureau of Police Research and Development gathered inputs from all IPS officers as well as state and central law enforcement agencies.

Currently, the Bills have been introduced in the Parliament and have been referred to the Parliamentary Standing Committee for thorough examination and recommendations. The draft versions of these legislations are accessible to the public, further promoting transparency and engagement in the legislative process.

Provisions, Changes & Their Analysis

Bharatiya Nyaya Sanhita

The Bharatiya Nyaya Sanhita (BNS) comprises 356 sections, with 175 sections retained from the IPC with alterations, 22 sections being repealed, and 8 new sections being introduced. Upon a preliminary examination of the new Bill, it becomes evident that extensive modifications have been undertaken in the realm of substantive criminal law. Some of the crucial changes made through the BNS are enlisted below:

• Community Service as a form of punishment for petty offences introduced [Section 4(f)];
• New Chapter dealing with offences against women and children added;
• Abetment outside India for offence in India penalised [Section 48];
• Sexual intercourse by employing deceitful means penalised: up to 10 years [Section 69];
• Punishment for Gang rape of victims under 18: life imprisonment/death penalty [Section 70(2)];
• Penalty for mob lynching: Death penalty/life imprisonment/7 years minimum [Section 101(b)];
• Organised crime defined and penalised [Section 109];
• Terrorist act defined and penalised – intentionally engaging in an action to threaten the unity, integrity, and security of India [Section 111];
• Sedition removed – Section 150 punishes “acts endangering sovereignty, unity and integrity of India” – with greater punishment.
• Unnatural sexual offences under erstwhile Section 377 of IPC have been revoked.
• Adultery as an offence under erstwhile Section 497 of IPC revoked.
• Attempt to suicide decriminalised, unless done with an intent to stop public servant from discharging public duty [Section 224];
• Changes in punishments for certain offences
• Disobedience to order duly promulgated by public servant: from six months to a year [Section 221].
• Punishment for false evidence: up to seven years [Section 227].
• Theft: if the property value is less than Rs 5000 and returned – community service [Section 301].
• Extortion: up to seven years [Section 306].
• Criminal breach of trust: up to five years [Section 315].
• Defamation: Community Service added as a method; Sale – 2 years; Publication of copies – 2 years [Section 354].

As already enlisted hereinabove, the notable changes include the incorporation of Community Service as a penalty for minor infractions, the imposition of penalties for instances involving sexual intercourse obtained through deceit, including under the guise of religious pretences with a commitment to marriage, and the implementation of harsher penalties for sexual offences committed against minors, among other amendments.

Furthermore, the new Bill includes a distinct set of provisions targeting instances of murder committed by a group of individuals based on factors such as race, caste, community, sex, place of birth, or language. Notably, the concept of sedition has been omitted. In its place, stringent regulations concerning organized crime, acts of terrorism, and actions that jeopardize the sovereignty, unity, and integrity of India have been introduced.

Significant changes encompass the removal of provisions concerning unnatural sexual offences previously outlined in Section 377 of the IPC, as well as the elimination of the offence of adultery outlined in Section 497 of the IPC. Beyond alterations to the punishments associated with certain offences, the new legislation decriminalizes the act of attempted suicide, unless it is carried out with the intention of obstructing a public servant from fulfilling their official duties.

However, it is worth noting that there exist certain anomalies and gaps in the Bill that merit careful consideration and rectification. A few of these inconsistencies are expounded upon below:

• Section 23 of the Bill brought in to replace Section 85 of the IPC, which deals with involuntary intoxication as a defence, ironically prescribes the opposite; its states that “unless” an individual has been involuntarily administered an intoxicant, any act committed by them while under the influence shall not be deemed as an offence.
• Section 69 while penalizing Sexual intercourse by employing deceitful means by making a promise to marry excludes the same as amounting to rape, and as such the maximum punishment is ten years whereas for rape the punishment ranges from a minimum of ten years to life imprisonment.
• Gender neutrality as such in penal provisions remains largely an unaddressed concern yet. Unnatural offences were read down by the Hon’ble Supreme Court in the erstwhile IPC whereas the aspects pertaining to non-consensual intercourse with man and that of bestiality still remained in force. While omitting the Section 377 provision in the new Bill, the said aspects have also been done away with.
• The explanation to Section 150, which punishes “acts endangering sovereignty, unity and integrity of India”, remains an incomplete sentence and lacks coherence.
• At places, there are certain typos, grammatical errors, and usage of words not suited to the context or the wording of marginal note being contrary to that of the provision.

Bharatiya Nagarik Suraksha Sanhita

The Bharatiya Nagarik Suraksha Sanhita (BNSS) consists of 533 sections, out of which 160 have been retained from the Code of Criminal Procedure with revisions, 9 have been repealed, and 9 have been newly added. Some crucial changes made through BNSS include:

• Introducing audio-video electronic communication devices [Section 2 (a) and (f)];
• No arrest without permission of officer below DSP ranks when offence attracts less than 3 years’ punishment [Section 35(7)];
• Name and address of arrested to be prominently displayed on digital portals at Police Station and District Headquarters [Section 37];
• Handcuffing of offenders permitted in certain grievous offences [Section 43(3)];
• Using electronic modes of communication for: identification of accused [Section 54], serving summons [Section 63], recording statements of accused [Section 316], witnesses [Section 265(1)], recording search and seizure [Section 176(3)] and conducting trials [Section 532];
• Recording of search and seizure through audio-video electronic means [Section 105];
• No case to be registered against a member of the Armed Forces against an act in discharge of official duties, without preliminary enquiry [Section 151(2)];
• Zero FIR and e-FIR: Information can be given orally/electronic communication [Section 173(1)];
• Preliminary enquiry within 14 days must in offences punishable between 3-7 years, and investigation to be conducted only if a prima facie case exists [Section 173(3)];
• For offences punishable for more than 7 years, forensic evidence and videography of evidence collection mandatory [Section 176(3)];
• No house arrest permissible – Detention in police custody only allowed in a station and detention in judicial custody only in a prison. [Section 187];
• Police to inform the victim/complainant about progress of investigation within 90 days [Section 193(3)(ii)];
• Allows conduct of investigation during the trial, with permission of the court, to be completed within 90 days which may be extended by the court [Section 193(9)];
• Deemed sanction in case of prosecution of judges/public servants [Section 218];
• No cognizance by Magistrate without hearing [Section 223];
• Timeline for filing discharge application – within 90 days, extendable up to 180 days [Section 250];
• Judgment of acquittal/conviction to be given within 30 days, extendable up to 60 days with reasons [Section 258];
• Summary Trails allowed in all cases with imprisonment less than 3 years after hearing the accused and for reasons to be recorded in writing [Section 283(2)];
• No more than two adjournments can be granted [Section 346];
• Trial in absence of proclaimed offender with no immediate prospect of arresting him, subject to conditions [Section 356];
• Judgment to be uploaded on portal within 7 days [Section 392];
• Empowers state governments to notify witness protection schemes [Section 398];
• Timeline to Mercy Petitions to Governor and to the President [Section 473];
• Bail and bond have been defined [Section 479];
• Duty of Jail Superintendent to apply for Bail for undertrial on completion of one-half or one-third for first-time offenders [Section 481(3)]; and
• Court may grant anticipatory bail if it deems fit – specific factors to be considered have been removed [Section 484].

As is apparent from reading the Bill, there has been a concerted effort to enhance the utilization of technology at all stages including conducting criminal investigations. This includes employing technology for criminal investigations, providing electronic information to police officers with an emphasis on scientific methods of investigation, and incorporating communication devices for summons. Moreover, the Bill seeks to facilitate greater access to the justice system using videoconferencing during trials.

Furthermore, the Bill introduces specific safeguards to ensure fairness and protect individual rights. These safeguards include provisions against arbitrary arrest, limitation on handcuffing to serious offences, provisions for zero FIR and e-FIR, authorization for sample collection without arrest, digital display of arrested individuals' details, and the requirement for magistrates to hear the accused before taking cognizance of a case. The Bill also tasks Jail Superintendents with applying for bail on behalf of undertrials who have completed a portion of their imprisonment, thus enhancing individual security and liberty without compromising due process and constitutional principles.

Moreover, the legislation introduces measures to enhance efficiency, such as deemed sanction to prosecute public servants after a certain period, restricting the number of adjournments to a maximum of two, ensuring time-bound delivery and uploading of judgments, and imposing a timeframe for mercy petitions. Notably, summary trials are allowed for cases with sentences of less than 3 years, subject to specific conditions.

Reforms aimed at aiding victims are also embedded in the Bill. Ex-parte trials are permitted for cases involving proclaimed offenders unlikely to be apprehended. Additionally, the Bill mandates that police inform victims/complainants about the progress of investigations within 90 days, thereby empowering victims and promoting transparency in the legal process.

With all its merits, the Bill has its fair share of criticism. The Bill introduces several procedural definitions and establishes specific timelines for various processes, thereby adding clarity to procedures that were previously lacking in the Criminal Procedure Code (CrPC). However, criticisms have emerged, asserting that the Bill does not simplify the existing procedures as intended.

While the Bill underscores the use of electronic means for recording statements of accused and witnesses, it simultaneously requires their signatures on the recorded statements, which might negate the objective of electronic record-keeping. Similar concerns arise regarding complaints made via electronic communication, which are mandated to be signed within three days, potentially counteracting the efficiency of electronic communication.

Concerns have also been raised in certain quarters as to the provision requiring the conduct of a preliminary inquiry before proceeding with the actual investigation on the apprehension that the same may lead to delay in investigation and loss of evidence. However, given the rampant misuse of the penal provisions for personal rivalries and false/frivolous cases, such a provision must be welcomed.

Another provision that has been questioned is the one permitting investigating agencies to continue their investigations during the trial phase, potentially leading to further delays. Nevertheless, the Bill places limitations on the time period and requires court permission for such investigations.

A notable discrepancy is found in Section 262 of the new Bill, which allows for an Application for discharge after framing charges. In the current legal framework, once charges are framed, the accused must undergo trial and subsequently be either convicted or acquitted, he cannot be discharged. Discharge post-framing of charge is not contemplated in the existing framework.

There is an apprehension that allowing police officers to use handcuffs against persons accused of offences of a certain gravity might impinge upon fundamental rights. However, enlisting the conditions only when handcuffing can be done (as made in the Bill) would also help in reducing the frequent and indiscriminate usage of handcuffs to detain people irrespective of the gravity and nature of offence.

Although the provision of bail has been defined in the Bill, certain factors that courts should consider when granting bail in non-bailable offences have been removed, raising concerns about potential arbitrariness. However, with greater judicial discretion in the absence of statutory conditions, courts are likely to lean more towards safeguarding liberty than custody. In any case, bail orders, like other judicial pronouncements, would be required to be well-reasoned, placing the onus on judges to justify the granting or denial of bail.

Bharatiya Sakshya Bill, 2023

The Bharatiya Sakshya Bill has 170 sections. Out of these, 23 sections stand sourced from the Evidence Act with amendments, 5 sections have been removed, and 1 new section has been added.

The Statement of Objects and Reasons for this Bill underscores the need for repealing the Indian Evidence Act, citing its inabilityto ‘address the technological advancement undergone in the country during the last few decades.’ The present law was ill-equipped and inadept at handling the new technological advancements and ever-evolving avatars of electronic evidence.

The Bill's expanded definition of "Document" under Section 2(1)(c) encompasses electronic or digital records, e-mails, server logs, computers, smartphones, laptops, SMS, websites, locational evidence, mails, and messages on devices.

The Bill also establishes the admissibility of electronic or digital records as evidence, conferring upon them the same legal validity, effect, and enforceability as traditional paper records. This provision permits the participation of witnesses, accused individuals, experts, and victims through electronic means.

Furthermore, the scope of secondary evidence has been broadened under the Bill. This includes copies produced by mechanical processes from the original, copies made from or compared with the original, counterparts of documents pertaining to parties who did not execute them, and oral accounts of document contents provided by someone who has personally seen the document. Additionally, giving matching hash # value of original record will be admissible as proof of evidence in the form of secondary evidence.

However, a conflict exists between Sections 61, 62, and Section 63 of the Bill, which pertain to electronic evidence. While Section 61 endeavors to treat electronic evidence on par with documentary evidence, supported by Section 62 which applies the procedure for proving documentary evidence to electronic evidence as well, Section 63 starts with a non-obstante clause that supersedes the preceding sections, thus creating a distinction between documentary and electronic evidence.

Inconsistency also emerges in the definitions of “Document” in the Bharatiya Nyaya Sanhita vis-à-vis the Bharatiya Sakshya Bill, which require harmonization. While the Nyaya Sanhitahas a narrower definition that does not include electronic and digital documents, the one under the Sakshya Bill is much broader and encompasses electronic and digital documents.

Moreover, a crucial consideration while analyzing the provisions of this Bill is that, unlike the two criminal codes, the law of evidence applies to both criminal and civil law. Consequently, any alterations made to the language of the Act necessitate careful consideration of their implications on Civil Procedure as well.

Conclusion & The Way Ahead

In the pursuit of freedom and self-determination, societies and individuals often strive to cast off the chains of foreign oppression and exploitation. Such aspirations are inherent in any self-esteemed community, eager to free itself from the yoke of colonial apparatus that have shaped its governance and legal systems. After seven decades of independence, it was disheartening that India still carried the weight of an archaic and colonial criminal justice system, a legacy crafted by Lord Thomas Babington Macaulay.

The passage of time brought a reckoning, and the need for change could no longer be ignored. As the sun set on the colonial era, a new dawn emerged, marked by the transformation of the criminal justice landscape. In this evolution, it was vital to excise the language and concepts of colonial origin that had taken root in the legal framework. The recent legislative efforts have successfully expunged such remnants, removing words like Jury, Barrister, Commonwealth, Provincial Act, Her Majesty's Government/Dominions, and references to the Parliament of the UK, British Crown, among others.

Change, however, is never without its challenges and setbacks. The journey towards a revitalized criminal justice system was not free of minor hiccups and typographical errors that marred an otherwise commendable effort. The Bills, although comprehensive, displayed a few anomalies that must be rectified to ensure their efficacy. While some of these inconsistencies have been outlined, it's important to note that these lists are not exhaustive and further refinements may be required.

Currently, the Nyaya, Suraksha, and Sakshya Bills are to be reviewed by the Parliamentary Standing Committee, where they would be subjected to rigorous scrutiny and analysis. This phase is crucial, as it provides an opportunity for stakeholders to deliberate on potential improvements and address any challenges that might arise during the implementation of these provisions.

The passage of these Bills carries the promise of a transformed judicial landscape, one that seeks to abolish the colonial legacy and embrace a justice system that resonates with the aspirations of modern India. As the legislative process unfolds, it is hoped that precision, foresight, and careful consideration will guide the shaping of these laws. With their eventual enactment, these Bills are poised to usher in an era of criminal justice that is responsive, efficient, and attuned to the needs of the citizens.

In the spirit of progress and renewal, the journey towards dismantling the colonial legacy within India's criminal justice system is both a testament to the nation's commitment to change and an acknowledgment of its history. The Nyaya, Suraksha, and Sakshya Bills represent a monumental effort to redefine justice and put in place a framework that aligns with the values and needs of the citizens of Bharat. As these Bills inch closer to becoming law, after going through the rigors of the Standing Committee and the Parliament, they would herald a new era of Criminal Justice with efficient machinery made for and by the people of Bharat in the Amrit-kaal, where justice would be easily accessible, available, and acceptable to We, the People of Bharat.

Author is an Advocate, practising at the Supreme Court of India & Delhi High Court.