The story so far: The Centre on August 11 introduced three new Bills in the Lok Sabha that propose a complete overhaul of the country’s criminal justice system. The three Bills are set to replace the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872.
The IPC, which was introduced by the British in the year 1860, has been the bedrock of India’s criminal justice system for more than 160 years. It is set to be replaced by the Bharatiya Nyaya Sanhita, 2023. The CrPC of 1973 will be replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 whereas the Indian Evidence Act of 1872 will be replaced by the Bharatiya Sakshya Bill, 2023.
“From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. With these three laws there will be a major change in the criminal justice system in the country”— Home Minister Amit Shah said while introducing the three new legislations.
The Bills have been referred to a Parliamentary Standing Committee for reveiw and recommendations.
The process to bring about amendments in criminal laws has been in the pipeline for a while. Former Law Minister Kiren Rijiju apprised the Rajya Sabha last year that the government has initiated the process of amendment to laws such as IPC, CrPC and the Indian Evidence Act in consultation with all stakeholders. The Parliament was informed that the Ministry of Home Affairs (MHA) has also sought suggestions from Governors, Chief Ministers, Lieutenant Governors and Administrators of Union Territories, the Chief Justice of India, Chief Justices of various High Courts, the Bar Council of India, Bar Council of various States and members of Parliament regarding the proposed amendments.
The Minister said that the department-related Parliamentary Standing Committee on Home Affairs in its 146th report had recommended that there is a need for a comprehensive review of the criminal justice system of the country. It was also pointed out that the Parliamentary Standing Committee in its 111th and 128th reports had also highlighted the need for reforms in criminal laws through the enactment of a comprehensive legislation instead of piecemeal amendments in existing acts.
Criminal law reforms committee and its criticism
The Ministry of Home Affairs through a notification dated May 4, 2020, constituted a committee headed by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi to review the three codes of criminal law. The other members of the committee included —G.S. Bajpai (Registrar, National Law University Delhi), Balraj Chauhan (first Vice-Chancellor, Dharmashastra National Law University, Jabalpur), Mahesh Jethmalani (senior advocate, Supreme Court) and G.P. Thareja (former district and session judge, Delhi).
The mandate of the committee was to ‘recommend reforms in the criminal laws of the country in a principled, effective and efficient manner, which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual,’ per the committee website.
In July 2020, the committee invited comments from stakeholders via an extensive questionnaire. Subsequently, on February 27, 2022, the committee submitted its recommendations on the criminal law amendments.
However, the committee came under attack for its lack of diversity and the absence of transparency in its functioning. In a scathing letter, former Supreme Court and High Court judges, senior lawyers, and academicians questioned the lack of diversity in the all-male committee both in terms of the social identity as well as professional background and experience. Clarifications were also sought on whether the committee would be functioning independently of the MHA.
Similarly, several prominent women lawyers from across the country penned a letter to the Chairperson in July 2020, expressing serious concerns regarding the lack of diversity in its constitution and the absence of relevant stakeholders, with no women, Dalits, religious minorities, adivasis, LGBTQ persons, or persons with disabilities on the Committee.
Responding to the mounting criticism, Prof. Ranbir Singh subsequently clarified that the structural part of the committee’s composition lies with the MHA, however, it would function in a completely autonomous manner. He stated that the committee “has remarkable diversity and competence in professional experience, affiliations, and, scholarship“ and is guided by progressive and humane thinking in the realm of criminal law.
Has the offence of sedition been repealed?
Home Minister Amit Shah said in the Lok Sabha that the new Bill on IPC completely repeals the offence of sedition —which is reflected in Section 124A of the IPC. However, upon closer inspection, it can be seen that the provision has been introduced under a new name and with a more expansive definition for the offence.
Part VII of the Bharatiya Nyaya Sanhita Bill is titled ‘Of Offences against the State’ and includes Section 150 which expressly criminalises ’acts endangering sovereignty unity and integrity of India.’
Section 150 of the Bill reads as —’Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.’
The Explanation accompanying the provision states that- “Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section.”
In a significant change to the existing definition of sedition, Section 150 criminalises aiding through financial means any acts of ‘subversive activities or those encouraging ‘feelings of separatist activities.’ This is a wider definition than that recommended by the 22nd Law Commission of India in its report published in June.
The Commission had suggested that sedition should be retained but with certain amendments to curb its misuse. Its report stipulated that Section 124A of the IPC should include the words ‘with a tendency to incite violence or cause public disorder’ and that the tendency to incite violence should be defined as a ‘mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.’
With regards to punishment, Section 150 enhances the alternative punishment to 7 years imprisonment from the 3 years imprisonment provided under Section 124A of the IPC.
The Bharatiya Nagarik Suraksha Sanhita, 2023 (replacement for CrPC) also includes a corresponding provision for Section 150 in the form of Section 127. The provision outlines the procedure for when an Executive Magistrate receives information concerning ‘dissemination of any seditious matters’ as punishable under Section 150.
On May 11, the Supreme Court ordered that the sedition law under Section 124A of the IPC must be kept in abeyance until the Union government reconsiders the provision. A Bench of then Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli observed that the penal consequences of sedition were intended for a time when India was under colonial law.
Subsequently, in an interim order, the apex Court also directed that the Centre and the State governments refrain from registering any FIRs under Section 124A IPC while the provision was under re-consideration. During the proceedings, the Union government had agreed with the stand that the colonial provision requires a re-examination and is not in tune with the current social milieu.
Key highlights of the Bills
The Bharatiya Nyaya Sanhita Bill, 2023
This Bill, which seeks to replace the IPC by repealing 22 of its provisions, proposes changes to 175 existing provisions and introduces eight new sections. It contains a total of 356 provisions.
The new provisions include — Section 109: Organised crime; Section 110: Petty organised crime or organised crime in general; Section 111: Offence if terrorist act; Section 150: Acts endangering sovereignty, unity and integrity of India and Section 302: Snatching.
The punishment for all types of gang rape will now include 20 years of imprisonment or life imprisonment. The punishment for the rape of a minor will include the imposition of the death penalty. Various offences have also been made gender neutral.
Notably, for the first time capital punishment has been introduced for the offence of mob lynching apart from the offence being made punishable with 7 years of imprisonment or life imprisonment. The offence (Section 101) has been defined as —’When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground, each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.’
The Bill also criminalises sexual intercourse under the false pretext of marriage or by deceitful means. A maximum of 10-year imprisonment has been proposed for the offence. This is a notable change since IPC does not have an explicit clause dealing with instances of sexual intercourse based on a false promise of marriage and such cases are typically covered under Section 90 of the IPC, where consent obtained through a ‘misconception of fact’ is deemed invalid. The accused in such cases can be charged under Section 375 for the offence of rape.
Section 69 states —’Whoever, by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.’
It is followed by an explanation stipulating that ‘deceitful means’ will include the false promise of employment or promotion, inducement or marrying after suppressing one’s identity.
The provision for the offence of adultery has also been omitted. This is in line with the Supreme Court’s ruling in 2018 in the case of Joseph Shine v. Union of India, where Section 497 of the IPC, which criminalized adultery, was held to be unconstitutional.
Similarly, pursuant to the Supreme Court unanimous reading down of Section 377 of the IPC as far as it criminalised same-sex relations between consenting adults in Navtej Singh Johar v. Union of India (2018) —the proposed legislation does not include any punishment for ‘unnatural sexual offences against men.’ Sexual offences such as rape have been defined under the Bill as an act by a man against a woman or a child.
The provision legalising marital rape has however been retained. Exception 2 to Section 63 (which defines the offence of rape) reads–’Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’
A batch of petitions challenging the constitutional validity of Exception 2 to Section 375 of the IPC, which provides an exception to non-consensual matrimonial sex from the offence of rape, is currently pending adjudication before the Supreme Court.
Bharatiya Nagarik Suraksha Sanhita Bill, 2023
The Bill will replace the CrPC by repealing nine of its provisions. It proposes changes to 160 provisions and introduces nine new provisions. It contains a total of 533 sections.
A formal provision (Section 230) has been introduced to ensure that a copy of the FIR is made available to the accused and the victim free of cost and within fourteen days from the date of production or appearance of the accused. The Bill also permits the filing of a zero FIR from any part of the country — when a police station receives a complaint regarding an alleged offence committed in the jurisdiction of another police station, it registers an FIR and then transfers it to the relevant police station for further investigation; this is called a zero FIR.
Other changes to expedite the procedure include the facility for an accused person to be examined through electronic means, like video conferencing. Summary trials have been made mandatory for petty and less serious cases. The magisterial system has also been streamlined.
Bharatiya Sakshya Bill, 2023
The Indian Evidence Act will be replaced by Bill which proposes changes to 23 provisions and introduces one new provision. It contains 170 sections in total.
The Statement of Objects and Reasons of this Bill highlights that the Indian Evidence Act has been repealed because it fails to ‘address the technological advancement undergone in the country during the last few decades.’
The Bill permits the admissibility of an electronic or digital record as evidence and will have legal validity as documentary evidence. The ambit of what constitutes secondary evidence has also been expanded to include the following: copies made from the original by mechanical processes, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it.
- The Centre on August 11 introduced three new Bills in the Lok Sabha that propose a complete overhaul of the country’s criminal justice system.
- The IPC, which was introduced by the British in the year 1860, has been the bedrock of India’s criminal justice system for more than 160 years.
- It is set to be replaced by the Bharatiya Nyaya Sanhita, 2023. The CrPC of 1973 will be replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 whereas the Indian Evidence Act of 1872 will be replaced by the Bharatiya Sakshya Bill, 2023.
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