For the first time since the 1800s, Criminal Laws in India have undergone a shift. Adopted during the Winter Session of the Parliament of India in December 2023, the Indian Penal Code of 1860 (IPC) has been replaced by the Bharatiya Nagarik Sanhita of 2023 (BNS), The Indian Evidence Act of 1872 has been replaced by The Bharatiya Sakshya Adhiniyam of 2023 (BSA), and the Bharatiya Nagarik Suraksha Sanhita of 2023 (BNSS) replaces the Code of Criminal Procedure of 1973 (CrPC). These laws govern the substantive, evidentiary, and procedural components of criminal law, respectively. The three new Acts have entered into force as of July 1, 2024, marking a new epoch in the Criminal Laws of India.
The goals behind the adoption of these three laws included the reformation of the Criminal Laws of India by replacing colonial-era legislation, prioritizing victim-centric justice, adapting to the advantages of and challenges posed by new-age technology, as well as meeting national security needs.
This blog post takes you through some of the key changes in the new Criminal Law landscape and spells out some of the implications of these changes.
What’s changed?
Overall, the key changes to the old legislation concerned revisions in the punishment for a few crimes, jurisdiction, and scope of the laws. The main challenges sought to be addressed through these revisions include the large-scale backlog of cases, insufficiency of human resources and infrastructure, limitations in investigation and prosecution procedures, as well as the incorporation of technology where relevant.
A high-level glimpse of the changes offers the following insights.
Bharatiya Nagarik Sanhita of 2023 (BNS)
The BNS, replacing the IPC, retains most offenses from its predecessor with a few changes. For instance, “sedition” (conduct or speech inciting people to rebel against the authority of a state) is no longer an offense. Instead, the BNS names “acts endangering the sovereignty, unity, and integrity of India” and “terrorism” as offenses punishable with life imprisonment.
A second development is the inclusion of specific provisions to address tech-based and tech-facilitated crimes such as cyberbullying, cyberstalking, cyber-harassment, and cyber-terrorism. The BNS also includes a range of new offenses, such as organized crime (interpreted to include kidnapping, extortion, contract killing, land grabbing, financial scams, and cybercrime carried out on behalf of a crime syndicate) and murder and grievous hurt by a group.
These offenses are punishable with either imprisonment ranging from a specific period to life, or a death sentence, as well as fines. Further, the BNS has increased penalties for rape and murder, omitted adultery, and Section 377 under the IPC (“unnatural offences”). The implication of the latter is that the rape of an adult man and transgender people will not be an offense under any law, nor will having intercourse with an animal.
Finally, the BNS has also prioritized justice over punishment, where community service has been introduced as a form of rehabilitative punishment, and the rights of victims of crime have been expanded.
Bharatiya Nagarik Suraksha Sanhita of 2023 (BNSS)
The BNSS also retains some provisions of the CrPC and makes a few significant changes. First, in addressing punishments, the BNSS states that if an accused has spent half the maximum period of imprisonment in detention, he must be released on personal bond, but this rule does not apply to offenses punishable by death and by life imprisonment, and to those against whom proceedings are pending in more than one offense. First-time offenders get bail after serving a third of the maximum sentence, with the same exceptions listed above. Plea bargaining (agreement between the defense and prosecution where the accused pleads guilty for a reduced sentence) is allowed for all offenses except those punishable by the death penalty, life imprisonment, or imprisonment for a term exceeding seven years. It extends the seizing of the proceeds of a crime (i.e., movable property obtained directly or indirectly as a result of criminal activity) to immovable property that was either alleged or suspected to have been stolen or to have been found under the circumstances creating suspicion of the commission of an offense, without a time limit for such seizure.
The BNSS also states that handcuffs can be used only during the arrest of a habitual or repeat offender who has escaped custody, or a person who has committed offences like rape, acid attack, organised crime, drug-related crime, or an offence against the state. However, this contradicts the precedential Supreme Court judgment, in the case of Sunil Batra v. Delhi Administration (AIR 1978 SC 1675).
In terms of evidence, the BNSS allows any police officer to request a medical examination of the accused in certain cases, including in cases of rape. Forensic investigations are mandated for offenses punishable with at least seven years of imprisonment. Magistrates can order any person, even if they have not been arrested, to provide specimen signatures or handwriting, finger impressions, and voice samples.
The BNSS has also prescribed set timelines for various procedures, prioritizing speedy justice without any lapse in procedure. Finally, the BNSS has removed the classification of metropolitan areas and magistrates from the hierarchy of courts for the adjudication of criminal matters in India.
Bharatiya Sakshya Adhiniyam of 2023 (BSA)
The BSA replaces the Indian Evidence Act, retaining some of the older legislative provisions while changing most others. One major change has been the inclusion of electronic and digital records as evidenced by expanding the meaning of the word “document.” This term now encompasses a whole spectrum of electronic records within its scope, such as server logs, emails, laptops, files stored in devices, location information, website content, and messages, among others. With this, electronic and digital records have the same legal standing as their physical counterparts and are thus admissible in court as evidence.
Electronic evidence is classified as primary evidence when it is produced from “proper custody.” The BSA also expands the scope of secondary evidence, to include written and oral admissions within its fold.
BSA recognizes oral evidence taken electronically. It offers more stringent protection to victims of rape while prioritizing transparency in investigations, calling for statements to be recorded via audio-video means. It also broadens the scope of “experts” to include more areas of expertise to seek expert opinions on various cases.
Further, no court can require any communication between Ministers and the President of India to be produced before it. The testimony of accomplices has gained greater validity under the BSA, as upon corroboration, it can lead to a valid conviction.
Mapping the future
The Criminal Laws in India have undergone a large-scale shift for the first time – earlier, there were piecemeal amendments and judicial precedents that expanded or altered the scope of the law. However, the law is more than the legislation that constitutes it. Judgments passed by courts and scholarship amplify the full import of a legislation, sometimes offering more clarity than the bare text in itself. As the IPC has been around for 163 years, the volume of interpretations through case laws and scholarship is massive. The new Criminal Laws in India will generate their own interpretative wisdom that will shape the future of the law.
However, some questions continue to endure. The law says that anything done or any action taken under the IPC will be deemed to have been done under the corresponding provision of the BNS. This presents advocates with a predicament around the retrospective application of criminal laws, which can contradict the constitutional guarantees if true. A second major challenge is the manner in which the laws have been passed, which is currently being contested by the opposition. It remains to be seen how the Criminal Laws in India unfold from this point onward.