On the 21st of December 2023, the Parliament of India passed the Bhartiya Nyaya Sanhita 2023, Bhartiya Nagarik Suraksha Sanhita 2023, and Bhartiya Sakshya Adhiniyam 2023, replacingthe Indian Penal Code of 1860, the Criminal Procedure Code of 1898, and the Indian Evidence Act of 1872, respectively. This marks a significant shift in India's justice delivery system as the new criminal laws aim to improve the existing legal frameworks and create legislation that is more responsive, equitable, and better suited to meet society's evolving needs. According to a notification issued by the Ministry of Home Affairs (MHA), these laws will come into effect from July 1, 2024.

The Bhartiya Nyaya Sanhita 2023 is a comprehensive effort to redefine and refocus the penal code. With several sections being amended, repealed, or added, the new law introduces a nuanced approach to offenses, penalizing actions that endanger the sovereignty, unity, and integrity of India. It also addresses contemporary challenges such as terrorism and organized crime, distinguishing between major and petty offenses and prescribing stringent penalties for the former.

The Bhartiya Nagarik Suraksha Sanhita 2023 seeks to humanize our criminal justice system. By setting timelines for investigations, it aims to make justice more accessible and responsive to the needs of the people. It replaces outdated terminology with a more people-friendly language, reflecting a commitment to a humane approach. In cases involving heinous offenses, the legislation emphasizes the necessity of a mandatory visit by the forensic team. This strategic provision aims to bolster the investigative process, ensuring that the specialized team conducts an onsite examination to collect crucial evidence. By mandating such visits, the legislation seeks to enhance the thoroughness and accuracy of criminal investigations, ultimately contributing to a more robust legal framework centered around contemporary standards of justice.

The Bhartiya Sakshya Adhiniyam 2023 recognizes the growing role of technology in legal proceedings. In a contemporary legal landscape where technology plays a pivotal role, this law recognizes electronic evidence as any information generated or transmitted by any device or system capable of being stored or retrieved. This broad definition encompasses a wide range of digital data, from emails and text messages to multimedia files, acknowledging the diverse forms of evidence relevant to modern cases and emphasizing factors such as authenticity and integrity. This inclusion is crucial in maintaining the credibility of electronic information presented in court, ensuring that technological advancements do not compromise the reliability of legal proceedings. Special provisions for the admissibility of DNA evidence and the acceptance of expert opinions as evidence further bolster the act's commitment to a modern and effective legal framework.

A noteworthy feature of the proposed criminal laws is the establishment of an independent director of prosecution in each district. This significant development aims to fortify the prosecution system, ensuring fairness and impartiality at the local level. Similar progressive legal actions taken within a definitive time frame could crucially strengthen the overall criminal justice machinery and build public trust in the evolving justice system.

The criminal law modernization symbolizes more than just a legal transformation. It reinforces a commitment to ensuring justice that resonates with the society's changing needs. This legislative right positions India on the path towards a more equitable, accessible, and evolved legal framework. The process of legal reform has commenced, and these groundbreaking laws indicate a future where justice is not only delivered but is inclusive and reflective of our nation's dynamic ethos.

India's criminal justice system has been predominantly shaped by laws and regulations inherited from the British colonial era. In the post-independence years, these legal foundations underwent alterations and amendments to align with the evolving requirements of modern times. The experience of seven decades of Indian democracy calls for a comprehensive review of our criminal laws, including the Code of Criminal Procedure, and their adoption in accordance with the temporary needs and aspirations of the people of India. The pre-independence criminal laws were used by the British to protect their colonial interests, rule the people and the country, and maintain their authority and supremacy over India. There was a need for a comprehensive review of the criminal laws, especially the Indian Penal Code, Criminal Procedure Code, and the Indian Evidence Act, and to adapt them according to the present-day needs and aspirations. In 2019, the Prime Minister of India advocated for the need to revamp all the legislations enacted across all departments during the British era.

In accordance with the basic principles enshrined in the Constitution of India, it was proposed to bring about fundamental comprehensive changes in the framework of Indian criminal laws. With this objective, the existing Indian Penal Code of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872 have now been repealed and replaced by the Bhartiya Nyaya Sanhita of 2023, the Bhartiya Nagarik Suraksha Sanhita of 2023, and the Bhartiya Sakshya Adhiniyam of 2023, respectively. The main problems in the present legal system are complex in nature. There is a huge pendency of cases in the courts, a low conviction rate, and the amount of fines prescribed in the laws is very low, ranging from Rs. 10 to Rs. 500. Additionally, there is overcrowding of undertrial prisoners in prisons. There is very little use of modern technology in the legal system, and there are delays in investigation and delayed justice due to inadequate use of forensic evidence.

All the provisions have been made in the laws to equip our judicial system by envisioning the possible technological innovations that may take place in the coming 100 years. A good balance has been maintained between the rights of the people and the citizens. Provisions have been made in these laws to increase the rate of punishment and to prevent cybercrimes. To reduce the burden on jails, community service has also been included as a punishment for the first time and has been given legal status.

In the Bhartiya Nyaya Sanhita, priority has been given to crimes related to humans, such as rape, gang rape, crimes against children, murder, kidnapping, and trafficking. The government has also taken a historic decision and completely removed the section on sedition. Sedition has been replaced with treason. The Home Minister has stated that no one can speak against India and no one can harm its interests. He has also emphasized that anyone who plays with the flag, borders, and resources of India will definitely have to go to jail because the government's priority is the security of the country.

A total of 3,200 suggestions were received regarding these laws, and the Home Minister himself held 158 meetings to consider these three laws. On August 11, 2023, these bills were sent to the Standing Committee of Parliament on Home Affairs. These laws seek to modernize the current legal framework and overhaul the criminal justice system.

Key changes in the Act include the following:

The Indian Penal Code (IPC) defines sedition as bringing or attempting to bring hatred or contempt or exciting disaffection towards the government. It is punishable with a prison term between 3 years and life imprisonment and/or a fine. The Bhartiya Nyaya Sanhita 2023 removes this offense and instead penalizes exciting or attempting to excite secession, armed rebellion, or subversive activities, encouraging feelings of separatist activities, or endangering the sovereignty or unity and integrity of India. These offenses may involve the exchange of words or signs, electronic communication, or the use of financial means for terrorism.

The law defines terrorism as an act that intends to threaten the unity, integrity, and security of the country, to intimidate the general public, or disturb public order. The law also penalizes conspiring, organizing, or resisting in preparation of any terrorist act with a prison term between 5 years and life imprisonment and a fine of at least 5 lakh rupees.

Petty organized crime now makes attempting or committing petty organized crime punishable with a prison term between 1 and 7 years and a fine. The law introduces the death penalty for gang rape of minors. Previously, the IPC allowed the death penalty for gang rape of women below 12 years of age. The law now allows the death penalty for gang rape of women below 18 years of age.

The Bhartiya Nagarik Suraksha Sanhita of 2023 was introduced in the Lok Sabha on the 11th of August 2023. It repeals the Court of Criminal Procedure of 1973, which provides for the procedure of arrest, prosecution, and bail for offenses under various acts, including the Indian Penal Code of 1860. The key provisions now include trials in electronic mode. The law states that all trials, inquiries, and proceedings may be held in electronic mode. It also provides for the production of electronic communication devices likely to contain digital evidence for investigation, inquiry, or trial. Electronic communication includes communication through devices such as mobiles, computers, or telephones.

Forensic investigation is mandated by the law for offenses punishable with at least 7 years of imprisonment. The law also prescribes timelines for various procedures. For instance, it requires medical practitioners who examine rape victims to submit their reports to the investigating officer within 7 days.

The law provides for the conduct of a trial and the pronouncement of judgment in the absence of a proclaimed offender. This is applicable when such a person has evaded trial and there is no immediate prospect of arresting them.

The Bhartiya Sakshya Adhiniyam of 2023 was introduced in the Lok Sabha on the 11th of August 2023. It repeals the Indian Evidence Act of 1872. The act provides rules for the admissibility of evidence in legal proceedings.

Regarding the admissibility of electronic or digital records as evidence, the law states that electronic or digital records will have the same legal effect as paper records. It expands electronic records to include information stored in semiconductor memory or any communication device.

Under the act, oral evidence includes statements made before courts by witnesses in relation to a fact under inquiry. The law adds that any information given electronically should be considered as oral evidence.

The law also expands secondary evidence to include oral and written admissions, as well as the testimony of a person who has examined the document and is skilled in the examination of documents.

These legislations, being brought in place of three old laws, have been made based on three fundamental principles of our constitution: freedom of the individual, human rights, and the principle of equal treatment for all. The purpose of imposing punishment is to provide justice to the victim and to set an example in society so that others do not commit similar mistakes. These three new laws are the first step towards humanizing our legal system after so many years of Independence.

Author is an Advocate practicing in the High Court of Bombay.

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