Landmark Legislation: Parliament Passes Historic Criminal Law Bills for Overhauling Justice System

The Rajya Sabha passed three criminal law bills on Thursday, December 21, 2023, after the Lok Sabha had passed them on Wednesday. The bills are:

• Bharatiya Nyaya (Second) Sanhita, which replaces the Indian Penal Code, 1860.
• Bharatiya Nagarik Suraksha (Second) Sanhita, which replaces the Code of Criminal Procedure, 1898.
• Bharatiya Sakshya (Second) Sanhita, which replaces the Indian Evidence Act, 1872.

The bills aim to overhaul the criminal justice system of the country and make it more efficient, equitable, and modern. They also define ‘terrorism’ as an offence and redefine ‘sedition’ to include actions against India instead of actions against the government of the day.

Home Minister Amit Shah hailed the passage of the bills as a historic moment and said that they reflect a transition from the colonial mindset to the Indian ethos. He also said that the bills will ensure speedy justice and no sympathy for terrorists.

Prime Minister Narendra Modi also congratulated the Parliament for passing the bills and said that they are a watershed moment in India’s history. He said that the bills will strengthen the rule of law and protect the rights of the citizens.

These bills are:

• The Bharatiya Nyaya (Second) Sanhita, 2023, which replaces the Indian Penal Code, 1860.
• The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, which replaces the Code of Criminal Procedure, 1898.
• The Bharatiya Sakshya (Second) Sanhita, 2023, which replaces the Indian Evidence Act, 1872.

These bills aim to overhaul the criminal justice system of the country and make it more efficient, equitable, and modern. They also define ‘terrorism’ as an offence and redefine ‘sedition’ to include actions against India instead of actions against the government of the day.

The history of these bills can be traced back to the colonial era, when the British Parliament enacted the laws that governed the criminal offences and procedures in India. Over the years, these laws have been amended and revised by various governments and courts, but they still retained some of the features and flaws of the colonial system. Several Law Commission reports and expert committees have recommended reforms in these laws on various subjects, such as offences against women, death penalty, and rights of the accused.

The importance of these bills can be understood from the fact that they are the first attempt to replace the entire criminal code of the country with new laws that reflect the Indian ethos and constitution. The bills also address some of the contemporary challenges and issues, such as cybercrime, environmental pollution, human trafficking, and organised crime. The bills also aim to ensure speedy justice and protect the rights of the victims and the accused.

The impact of these bills can be seen in various aspects of the criminal justice system, such as:

• The punishment and penalties for various offences have been revised and rationalised. For example, community service has been added as a form of punishment, death penalty has been restricted to rarest of rare cases, and life imprisonment has been made more Stringent.
• The investigation and prosecution of offences have been made more scientific and efficient. For example, forensic investigation has been made mandatory for offences punishable with seven years of imprisonment or more, electronic communication devices can be produced as evidence, and audio-video recording of statements has been made compulsory.
• The trial and bail procedures have been made more fair and speedy. For example, chargesheet has to be filed within 180 days, magistrate has to take cognizance within 14 days, trial can be conducted in electronic mode, and bail can be granted to under-trials who have spent one-third of the punishment in jail.
• The rights and duties of the police, the accused, the victims, and the witnesses have been codified and clarified. For example, the police have to inform the accused of their rights and duties, the accused have the right to legal aid and medical examination, the victims have the right to compensation and protection, and the witnesses have the duty to cooperate and the right to anonymity.

These bills are indeed transformative, as they mark a paradigm shift from the colonial mindset to the Indian perspective, from the punitive approach to the restorative approach, and from the outdated system to the modern system. These bills are expected to bring a huge change in the criminal justice system and the society at large.

There was some criticism of the three criminal law bills that were passed by the Indian Parliament recently. Some of the main reasons for the criticism are:

• The bills are seen as an attempt to centralise and homogenise the criminal justice system, which may undermine the federal structure and diversity of the country. Some states have expressed their reservations and objections to the bills, as they feel that they encroach upon their legislative powers and autonomy.
• The bills are also accused of being drafted without adequate consultation and deliberation with the stakeholders, such as the judiciary, the legal fraternity, the civil society, and the public. Some experts have pointed out the lack of empirical data, evidence-based research, and comparative analysis to support the changes proposed in the bills.
• The bills are also criticised for being vague, ambiguous, and inconsistent in defining and categorising various offences and penalties. Some of the new offences, such as terrorism, organised crime, and endangering the sovereignty, unity and integrity of India, are feared to be misused and abused by the authorities to suppress dissent and curb civil liberties.
• The bills are also challenged for being regressive and discriminatory in some aspects, such as retaining the death penalty, excluding marital rape, ignoring gender neutrality, and violating the rights of the accused and the victims. Some of the provisions, such as handcuffing, preventive detention, and electronic surveillance, are also seen as violating the constitutional principles and human rights norms.

These are some of the main criticisms of the three criminal law bills. The real motive behind these criticisms may vary from genuine concerns to political interests, depending on the perspective and agenda of the critics.

About the implementation of these three criminal law bills that were passed by the Indian Parliament recently. These bills are not yet in action, as they require some more steps to replace the old systems and come into effect. Some of these steps are:

• The bills have to be passed by the Rajya Sabha, the upper house of the Parliament, where they may face some opposition and amendments from the members.
• The bills have to receive the assent of the President of India, who may return them for reconsideration or withhold his assent if he has any reservations.
• The bills have to be notified in the official gazette by the central government, which may specify different dates for different provisions to come into force.
• The bills have to be adopted by the states, as criminal law is a concurrent subject under the Constitution of India. The states may either accept the bills as they are, or make their own modifications and adaptations, subject to the approval of the President.
• The bills have to be harmonised with the existing special laws and international conventions that deal with criminal offences and procedures, such as the Protection of Children from Sexual Offences Act, 2012, the Unlawful Activities (Prevention) Act, 1967, and the International Covenant on Civil and Political Rights, 1966.
• The bills have to be implemented by the various stakeholders of the criminal justice system, such as the police, the judiciary, the lawyers, the forensic experts, and the public. This may require training, awareness, and capacity building to ensure smooth and effective transition.

These are some of the steps that are required for the three criminal law bills to replace the old systems and come into action.

The Rajya Sabha had passed the bills on Thursday, but they were sent back to the lower house for reconsideration due to some errors and discrepancies. The Lok Sabha made some changes and passed the bills again, and now they have to be approved by the Rajya Sabha once more before they can be sent to the President for his assent.

If we look at the details of the reconsiderations and amendments of the three criminal law bills that were passed by the Lok Sabha recently, some of the main changes made by the lower house are:

• The Bharatiya Nyaya (Second) Sanhita, 2023, which replaces the Indian Penal Code, 1860, was amended to include a provision for trial in absentia, which allows the court to conduct the trial and pronounce the judgment even if the accused is absconding. The bill also provides for the confiscation of the property of the absconding accused.
• The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, which replaces the Code of Criminal Procedure, 1898, was amended to include a provision for bail for under-trials who have spent one-third of the maximum punishment prescribed for the offence in jail. The bill also provides for the appointment of a Director of Prosecution at the state and district level to supervise and coordinate the prosecution of cases.
• The Bharatiya Sakshya (Second) Sanhita, 2023, which replaces the Indian Evidence Act, 1872, was amended to include a provision for the mandatory audio-video recording of the statement of the victim of rape or sexual assault. The bill also provides for the admissibility of electronic communication devices, such as mobile phones, laptops, and tablets, as evidence.

The next steps for the three criminal law bills that were passed by the Lok Sabha recently:

• The bills have to be approved by the Rajya Sabha once more, as they were amended by the Lok Sabha after the upper house had passed them on Thursday. The Rajya Sabha may accept the bills as they are, or propose further changes or amendments .
• The bills have to receive the assent of the President of India, who may either give his approval, or return them for reconsideration, or withhold his assent if he has any reservations.
• The bills have to be notified in the official gazette by the central government, which may specify different dates for different provisions to come into force.
• The bills have to be adopted by the states, as criminal law is a concurrent subject under the Constitution of India. The states may either accept the bills as they are, or make their own modifications and adaptations, subject to the approval of the President.
• The bills have to be implemented by the various stakeholders of the criminal justice system, such as the police, the judiciary, the lawyers, the forensic experts, and the public. This may require training, awareness, and capacity building to ensure smooth and effective transition.

Whether a state can reject a concurrent law in India? The answer is no, a state cannot reject a concurrent law totally, as it is bound by the Constitution to follow the law made by Parliament on any subject in the Concurrent List. However, a state can pass a legislation that may contradict or negate a concurrent law, provided it gets the assent of the President of India, as per Article 254 (2) of the Constitution. This provision enables a state to adapt a concurrent law to suit its local needs and conditions, subject to the approval of the Centre. However, the Parliament can still override the state legislation by passing another law on the same subject, as the Constitution gives primacy to the Union over the states in matters of concurrent jurisdiction.
Therefore, a state cannot reject a concurrent law totally, but it can modify or challenge it to some extent, with the consent of the President or the Supreme Court.