Criminal Justice laws- Overhauling Done

 The criminal Justice system has been comprehensively overhauled by enactment of three new legislations, namely the Bhartiya Nyaya Sanhita, 2023 (Act No. 45 of 2023), the Bhartiya Nagrik Suraksha Sanhita, 2023 (Act No. 46 of 2023), and the Bhartiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023). These three legislations have replaced colonial era codes namely the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively.

Aims and objectives:

The main aim of these new legislations is not to punish but provide access to speedy justice to all. The goal is raise the conviction percentage and to see that everyone gets justice in maximum three years. 

The new laws have shed their colonial antecedents and are reflecting Indian ethos, marking a transition from focus in the colonial era on the intent to punish, to delivering equitable and time bound justice.

The main objective of the new legislations is to speed up the trials by laying down certain timelines, raising the rates of conviction and lowering the pendency of cases by improving the quality of evidences and ensuring the integrity of evidence by providing protection to victims and witnesses. The new legislations have a vision of providing a stricter punishment for crime against women and children. Decongestion of jails is also envision by the codes by releasing convicts who have undergone half of their sentences awarded by the courts. The terrorism and mob lynching are coined as new offences. The accountability of Police officers has also been fixed by new legislations. Few highlights of the new Acts are time bound trials, introduction of summary trials for small crimes, provision for recording of statement of victims of sexual violence at her house by a female magistrate. 

Hit and run cases:

The hit and run cases will now attract imprisonment up to 10 years and fine if the driver-accused flees from the scene of the offence or fails to report the accident to the Police or Magistrate.

Speedy Justice: 

The Police have to provide status update in a case within 90 days. The charge sheet has to be filed in 90 days. However, court can extend the time for filing charge sheet by another 90 days. Thus, investigation must finish within 180 days. After conclusion of the trial, the judgment has to be delivered within 30 days, and the same has to be uploaded online within 7 days.

15days Police custody is allowed for first 40/60 days of detention period. Handcuffing is allowed for heinous offences but not for economic offences.

Organized Crimes:

The scope of organized crimes has been widened by including in its scope kidnapping, robbery, land grabbing, contract killing, and cyber offences among others.

Public Mischief:

An imprisonment of three years has been provided for making, publishing or circulating statements that are likely to cause fear or alarm to the public, or with intent to incite people to commit offences against others.

Hate Speech:

The hate speech crimes will attract an imprisonment up to three years for insulting or trying to insult any religion or religious beliefs.

Offences in Places of Worship:

The offences in the place of worship will attract imprisonment up to five years.

New Offences:

The terrorism, mob lynching, snatching, endangering unity and integrity of India have been defined as new offences in the new legislation. At the same time marrying a woman by concealing identity or having sexual intercourse under false promise of marriage, promotion or employment are now in the category of the crime and will attract imprisonment up to ten years. In cases of gang rape, punishment for 20 years or life imprisonment has been provided. But gang rape of girls below the age of 18 will be punished with life imprisonment or death penalty.

New Punishment by re-socialization: Community service

The community service has been introduced as a new kind of punishment for the first time committed petty offences. An attempt has been made to bring restorative justice by emphasizing personal accountability.

For example, in cases of theft convict, to get the benefit of community service as punishment, he has to satisfy 3 conditions. He should be convicted for the first time, value of stolen property should be less than Rs. 5000/- and he should have either restored the stolen property or returned the value of the stolen property. The community service refers to “works which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.

Reduction of load of Sessions Courts:

The provision for summary trial has been introduced for cases entailing less than three years of imprisonment. This is likely to reduce the docket explosion in the courts of District and Sessions judges.

A check on commutation of sentences:

It is commonly seen that the sentences of the criminals are commuted on political considerations. To stop the use of political pressure, and punishment waivers by the Governments, it has now been provided that the death sentences can only be commuted to life imprisonment and life imprisonment can be commuted only with seven years of imprisonment.

Gone offences:

The offence of sedition as loosely defined in section 124-A has been abolished but endangering unity and integrity of India could result in life imprisonment. This will include secessionist, armed rebellion and subversive activities aimed against country’s sovereignty as well as unity and integrity.

The medical professionals, specially the Doctors have been given a big shield in cases of medical negligence. Under I.P.C., 1860 the cases of medical negligence leading to death were covered under section 304-A, which dealt with causing death by rash and negligent act, not amounting to culpable homicide. The new legislation seeks to insulate the doctors from criminal prosecution in such cases. Bhartiya Nyaya Sanhita, 2023 has incorporated the concept of “good faith” in section 26. An illustration is appended under this section which says that a surgeon performing operation on a patient in good faith and not intending to cause his or her death, conducts the operation for the benefit of the patient, and does not commit any offence. It is submitted that decriminalization of medical negligence would help the doctors in taking correct and bold decision in critically ill patients and will lead to saving of several lives. The doctors will not now be fearful of being blamed for negligence and being hesitant in trying their best. The fear of Police and threat of prosecution by the relatives of the patients would also be lessened. 

Criticism and peaceful protest: 

There has been a clear line of distinction between a criticism and peaceful protest against the current Government. Now criticism of the Government has been distinguished from peaceful protests against the Government from subversion, secession and armed rebellion against an Indian state. This new offence has been named as “Deshdroh” and not “Rajdroh” which referred to British Crown.

Shree 420:

The section in IPC, 1860 that led to the iconic movie, made by iconic director Mr. Raj Kapoor is now listed as section 318 in Bhartiya Nyaya Sanhita, 2023. So 420 may not mean cheating now. The changes has been done to section 302 of IPC, 1860, which is now listed as section 103 in the new Sanhita, which has 358 sections instead of 511, in old IPC.

Under new BSA, the electronic record is included in the definition of ‘document’.

Husband/wife are now included as competent witnesses in criminal proceedings against each other.

Conclusion:

There is little disagreement that our country’s criminal justice system is crying for a resettlement. The legal luminaries recognize that the genesis of the problems is in the laws enacted by a colonial regime in the 19th century. To this extent, three new Acts legislated by the Government are a step in the right direction. The offence of sedition is said to be abolished but a new chapter VII titled as “of offences against the state” suggest that this criminalization continues as earlier. A separate provision for mob lynching leads us to the uncharted territory of punishing a mob with death penalty. Marital rape is not yet criminalized, which appears to be a regrettable decision. The offence of criminal defamation is also loosely defined.

In the new Acts there is a lot of focus on oiling, greasing and speeding up the wheels of justice, but some of it flies over infrastructural realties. For example, forensic team mandatorily visiting the scene of the crime for offences involving punishment more than seven years appears to be impossibility in as much as the backlog even in metropolitan laboratories is running into years. The central Government in its wisdom has rightly deferred the date of enforcement of these three new legislations so that in the intervening period required infrastructure software, training of human resources, publication of books and complete computerization of courts may be developed.

   By Professor (Dr.) N.K.Bahl