The Parliament has passed three new criminal law bills by a majority in the winter session. The Union Home Minister Amit Shah had introduced these three bills – ‘Bhartiya Nyaya Sanhita 2023, Bhartiya Nagarik Suraksha Sanhita 2023, and Bhartiya Sakshya Adhiniyam 2023' in both Houses of Parliament. After receiving the President's assent, these three bills have now become laws. With this, the country has now freed itself from the old criminal laws made during the era of British rule, or it can be said that the country has got a new criminal law by amending the old laws to suit the current time and changing circumstances.

This is an important subject overall. The conditions that existed in the country in 1860 have seen significant changes in both society and the law. When the independence movement was underway in the country, some stringent laws were enacted to suppress it. But when we adopted the Constitution, fundamental rights were granted to the people, such as freedom of expression and freedom of thought. Along with these changes, some new crimes have also emerged, such as terrorism, economic crimes, and cybercrimes. Therefore, the need was felt for new definitions and procedures in the laws. To expedite the justice process based on evidence, the need to consider electronic evidence was also felt. Furthermore, the laws of the British era were focused on controlling crime, not on providing justice. Therefore, it was necessary to keep in mind the individual's freedom and rights in the new laws.

Thus, over time, many important changes and amendments have become necessary in the laws. This is an ongoing process that needs to be constantly updated. Now, when we framed the Indian Penal Code, we used the term "sedition" instead of "treason". Because treason involved speaking against the state, but sedition did not involve speaking against the country. In this way, we made an important change. Similarly, terrorism is a new crime that we started seeing from the 1980s, but there was no provision for it in the laws of that time. Now we have included it as a new crime. Furthermore, new crimes such as mob lynching, economic offenses, child abduction, and acid attacks have also been included in the laws, as these did not exist earlier. In addition, cybercrimes and crimes occurring through new mediums like electronics have also been covered. So these important changes have been made in the laws. Moreover, now no person is considered guilty until proven so. This is an important change.

The main reason for all these changes is that society and its needs have changed over time, so it was necessary to change the laws as well. The Law Commission has often reformed laws, but what should be the principles based on which criminal laws should be reformed (principle-based criminal law reform)? The Indian Constitution was considered as the biggest source of these principles. 11 major principles were derived from the Constitution, and the first principle placed was the privacy of the individual. After the Constitution came into force, in Part 3 we gave rights to the individual. Individual rights are very important, and criminal law is a law that can violate individual rights, such as imprisoning a person. Whereas the Constitution says that individual liberty is supreme. How to strike a balance was a complex issue.

The second point is how to prioritize human rights. The third point is how to expedite justice, because the certainty of justice is very important. Earlier, the punishment could be severe but not certain. Certainty means that if it is written that this offense carries this punishment, then that punishment should be given within a definite time frame. Additionally, we saw that there were no laws for the victim. We had made laws keeping only offenders in mind. Now in the 21st century, a lot of work is being done on victimology. Victim justice is being talked about, so how to bring the victim to the centre stage? How can reforms happen in jails, and how can legal aid be provided?

If we have to give punishment, then what factors of the individual should we consider, such as mitigating factors and aggravating factors? There has been a lot of development in the social sciences and law, based on which we can better understand the offender and determine appropriate punishment for them. That is why there is also inclusion of community service in the laws. We have also talked about trial in absentia, that if a person is not available, they can still be prosecuted. How to make the police accountable, because earlier the police were only accountable to the governments, but now the issue of making the police accountable to the Constitution has come up. During the justice process, the victim has also been given rights.

In the Bhartiya Nyaya Sanhita 2023, the Honorable Home Minister has clearly stated that now we have also made a victim-centric law. For the first time in any law, victims' rights have been recognized. This is a new perspective. Although there is still a lot to be done, this is still a big step. We have also made many changes in the Evidence Act. We are also considering electronic evidence as primary evidence and can proceed based on it.

This process of reforms went on for around four years, and there was extensive discussion on it. During this time, many people expressed their views on various aspects. If you look at the initial draft, some people felt that the definitions needed to be made more comprehensive or more specific. Later, Parliamentary Standing Committee also suggested changes to it.

The most prominent example is terrorism. Earlier, terrorist activities were defined under the Unlawful Activities (Prevention) Act (UAPA), but that is a special law. Terrorism was never brought into the Indian Penal Code (IPC) before. Bringing terrorism into the IPC means that there are many crimes happening in the country where we often need to mainstream the concept of terrorism. It has been divided into four parts: 1) if someone creates any kind of fear against an individual, 2) causes damage to public property, 3) causes harm to any critical infrastructure, and 4) endangers elected governments or creates fear of death. This kind of definition has been taken from UAPA and incorporated into the IPC. Additionally, organized crime has been defined, it says that organized crime will be a form of continuing illegal activities such as kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, etc. If these are done by a group involving threat, violence and unlawful activities, it will be considered organized crime. Mob lynching is a recent phenomenon, but due to lack of definition, it used to be registered as routine incidents. Now Section 101 says that if any incident involves a common intention on the basis of race, community, gender or birthplace, it will be included in the Indian Penal Code and provisions have been made for punishments up to life imprisonment and death penalty. In the previous IPC code, only males were mentioned, but now it includes men, women and transgender persons. Likewise, crimes against women and children have been included in a separate section. If someone has sexual intercourse through deception, that has also been made punishable. Deaths due to negligence (such as caused by driving) have also now been included. This was not viewed in this form earlier. Chain snatching has also been clearly defined. Earlier it was considered a form of theft, but now it has been made a separate offense with punishment up to 3 years.

The Indian Penal Code (IPC) lists various forms of punishment under Section 53, which include the death penalty, life imprisonment, fines, and confiscation of property, among others. However, the concept of community sentencing has never been accepted or explicitly disclosed. In the United Kingdom, community service has been incorporated into their procedural laws, which is a form of punishment. This is part of the reformative approach, which means that instead of sending offenders to jail, they are made to perform some work for the community. As the problem of overcrowding in jails is increasing, community service could be an alternative to fines for minor offenses. For example, if a doctor is caught engaging in some wrongdoing, they could be asked to serve in a hospital for a few months. This is a good effort towards reforming the criminal justice system.

India has two types of laws - local and special. The local laws include certain specific crimes, while the special laws cover economic offenses. However, some economic crimes such as money laundering or tax evasion already had existing laws. But it has been observed that there are also many common provisions, as the Indian Penal Code (IPC) is a general law and special laws are separate in the Indian legal system. In this context, some new provisions have been made which state that if a person is found guilty of an economic offense, their property can be confiscated. Additionally, the police have also been given certain powers to make arrests and file cases in such matters. Earlier, there were difficulties in accepting certain evidence as proof, but now evidence like smartphones and chats can also be accepted. The purpose of all these changes is to deal sternly with white-collar crimes and economic offenders, who earlier escaped due to lack of evidence.

Firstly, an FIR (First Information Report) should be registered within three days, which fall under the category of lesser offenses. And for offences that carry a punishment of three to seven years, it should be registered within 14 days. The investigation charge sheet should be completed within 90 days after the filing of the FIR. The magistrate should also take cognizance of the charge sheet within 14 days. Similarly, for first-time offenders, detenue can be released after one-third of the period. In the second case, the judgment should be delivered within 45 days of the hearing. And now existence of legally empowered Zero FIR, where a person can file an FIR at any police station, without the need to go to a specific jurisdiction. E-FIR can also be filed from home, especially for women. Many such things have happened that will bring certainty and speed to the justice process. This is a right to speedy justice, which is also given in the Constitution. It is a good step towards realizing the right to speedy justice under Article 21 of the Constitution.

In summary, the passage of these three new criminal law bills - Bhartiya Nyaya Sanhita 2023, Bhartiya Nagarik Suraksha Sanhita 2023, and Bhartiya Sakshya Adhiniyam 2023, represents a significant milestone in India's legal history. By overhauling the outdated colonial-era criminal laws, the government has sought to align the country's justice system with the changing needs of modern society. Key principles such as the primacy of individual rights, expeditious justice, victim-centric approaches, and accountability have guided these reforms. The inclusion of emerging crimes like terrorism, cybercrime, and mob lynching, as well as a focus on mitigating factors in sentencing, showcase a more holistic and progressive criminal justice framework. While there is still room for further improvement, these reforms undoubtedly mark an important step towards a more equitable, rights-based criminal justice system in India.

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

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