Ishaan Tyagi
INTRODUCTION
In recent times, the Indian legislative landscape has been stirred by a fervent attempt to overhaul the archaic British-era criminal laws that have governed the nation for decades. The trio of bills - Bharatiya Nyaya Sanhita (BNS-II), Bharatiya Nagarik Suraksha Sanhita (BNSS-II), and Bharatiya Sakshya Bill (BSB-II) - introduced by Union Home Minister Amit Shah, seeks to replace the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973; and the Indian Evidence Act, 1872. This ambitious endeavor, however, has been marked by withdrawals, reintroductions, and intense scrutiny by the Parliamentary Standing Committee. In this exploration, we navigate through the intricacies of these proposed reforms, dissecting their potential ramifications and the broader implications they carry for civil liberties and the Indian criminal justice system.
KEY CHANGES IN THE REVISED BILLS
Bharatiya Nyaya Sanhita (BNS-II)
The BNS-II, aiming to usher in transformative changes in criminal law, introduces a slew of alterations, some of which have sparked considerable concern. One prominent worry centers around the broad and vague offenses, particularly those related to the security of the state. The inclusion of provisions criminalizing misinformation and acts endangering sovereignty raises questions about the potential for misuse. Despite the removal of the term "sedition," the surrogate offense of "Acts endangering sovereignty, unity, and integrity of India" retains ambiguous wording. Of particular note is the substantial expansion of police custody duration from 15 days to either 60 or 90 days, contingent on the nature of the offense. This extension heightens the risk of police excesses, coerced confessions, and the fabrication of evidence, a development that appears to exceed the limits set even by "special laws."
Bharatiya Nagarik Suraksha Sanhita (BNSS-II)
Replacing the CrPC, the BNSS-II introduces the concept of community service as a form of punishment for minor offenses. While this may be perceived as a progressive move, concerns have emerged regarding the expanded use of handcuffs and the potential misuse of preventive detention powers. [1] The ambiguity in the provision concerning the duration of preventive detention necessitates careful consideration, as the establishment of strict timelines is crucial to prevent potential abuse of power by the police. The BNSS-II's emphasis on audio-video recording of search and seizure is seen as a positive step towards accountability and transparency in police functioning, but its effectiveness hinges on addressing deep-seated structural barriers within the criminal justice system.
Bharatiya Sakshya Bill (BSB-II)
Intended to replace the Indian Evidence Act, the BSB-II introduces changes in the admissibility of electronic evidence. While the requirement of a certificate for the admissibility of electronic records aligns with the standards set by the Indian Evidence Act, concerns persist about the potential misuse of extended police custody beyond the initial 15 days of arrest. The ambiguity in the decision-making process between registering a case under BSB-II or the Unlawful Activities (Prevention) Act (UAPA) raises questions about the coherence and effectiveness of the legislative framework.
EXAMINING CRITICISMS AND DISSENT
The report from the parliamentary standing committee, coupled with the dissent notes from opposition members, provides valuable insights into the criticisms and recommendations regarding these revised bills. The committee identified errors, a lack of diversity in expert consultations, and the bills being perceived as a mere "copy-paste" of existing laws. Concerns about the hasty introduction of the laws and their potential impact on civil liberties were highlighted.
One major point of contention is the absence of fundamental changes in the approach to criminal law. Instead of ushering in a transformative vision for criminal law and justice, the bills seem to entrench colonial logic, emphasizing state control to an extensive degree. The issues of overcriminalization, broad and vague offenses, and the lack of clarity in decision-making processes are crucial areas that demand further scrutiny.
POSITIVE ASPECTS AND MISSED OPPORTUNITIES
While the bills introduce positive elements, such as the emphasis on timelines, the use of technology, and the mandatory audio-video recording of search and seizure, the effectiveness of these measures hinges on addressing deep-seated structural barriers. Vacancies in the judiciary, forensic science capacity, and the scientific validity of methods used in the criminal justice system are critical aspects that require attention.
The concept of community service as a form of punishment for minor offenses aligns with a more reparative approach to justice. However, its success depends on the availability of infrastructure, equipment, and proper personnel training. The Bills present a missed opportunity to correct entrenched injustices in the criminal justice system, and the focus on efficiency and technology must be balanced with an understanding of the contextual challenges in implementation. The following presents the changes and challenges associated with the new bills.
DEFINITION OF TERRORISM
The revised criminal law bills introduce several noteworthy changes and raise concerns across various legal domains. One significant highlight is the adoption of the Unlawful Activities (Prevention) Act's definition of a terrorist act in Bharatiya Nyaya Sanhita (BNS-II). While aligning with UAPA, the expanded definition includes the production, smuggling, or circulation of counterfeit currency, potentially broadening the scope of terrorism-related offenses. This move may impact individuals involved in financial activities without posing a direct threat to national security, raising concerns about the potential overreach of the law.
CRUELTY AGAINST WOMEN
In addressing cruelty against women, BNS-II introduces a separate provision defining "cruelty." However, a concern arises with the replacement of the term "mental illness" with "unsoundness of mind." Although an attempt to modernize the language, this change introduces ambiguity and lacks clarity, potentially leading to varied interpretations in legal proceedings, thereby affecting the effectiveness of the provision.
MOB LYNCHING
Regarding mob lynching, BNS-II removes the minimum punishment of seven years, aligning to address criticism. However, concerns arise as the absence of a minimum punishment may undermine the deterrence effect. Critics argue that this could lead to insufficient penalties for serious offenses committed by a group, particularly impacting marginalized communities and raising questions about the overall efficacy of the legal response to mob violence.
ADULTERY AND SECTION 377
In the context of adultery and Section 377, the non-inclusion of a gender-neutral provision criminalizing adultery and a clause addressing non-consensual sex and acts of bestiality in BNS-II is a notable highlight. However, concerns emerge as this omission contradicts recent progressive judicial decisions. Failing to criminalize non-consensual acts and maintain gender neutrality may leave gaps in legal protection for victims of sexual offenses, posing challenges to ensuring justice for all.
PETTY ORGANIZED CRIME
The redefinition of "petty organized crime" in BNS-II brings clarity by introducing specific criminal acts such as theft, snatching, and unauthorized selling of tickets. However, concerns persist regarding the potential inadvertent classification of a broader range of offenses as "petty organized crime." The ambiguity in defining organized crime remains a significant concern that could impact the fair application of the law.
COMMUNITY SERVICE
The incorporation of community service as a form of punishment in Bharatiya Nagarik Suraksha Sanhita (BNSS-II) is a progressive highlight. However, concerns arise about the lack of detailed guidelines and potential challenges in monitoring and evaluating community service activities. The success of this alternative punishment hinges on effective implementation, raising practical concerns about its application in the legal system.
HANDCUFFING AND POLICE CUSTODY
The expansion of the power to use handcuffs in BNSS-II is another noteworthy highlight, but concerns surface about potential misuse. Critics argue that extending the use of handcuffs, even beyond the time of arrest, may lead to unnecessary restraint, particularly for individuals accused of economic offenses. This broader application raises questions about its impact on the presumption of innocence until proven guilty.
In the context of electronic evidence, the Bharatiya Sakshya Bill (BSB-II) introduces the requirement of a certificate for the admissibility of electronic records, aligning with the Indian Evidence Act. However, concerns emerge regarding the potential procedural complexities and challenges, especially in cases where obtaining a certificate is impractical or may cause delays in court proceedings.
CONCLUSION
While the revised criminal law bills in India demonstrate an attempt to modernize and address certain shortcomings, the highlighted concerns underscore the need for careful deliberation and potential amendments. Striking a balance between legal clarity, protection of rights, and effective enforcement is crucial to ensure that the proposed legislative changes contribute positively to the Indian criminal justice system. Continuous scrutiny and engagement with stakeholders remain essential in refining the bills to meet the evolving needs of justice in a complex society.
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