The Bharatiya Nyaya Samhita, Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Adhiniyam are set to replace the colonial-era Indian Penal Code 1860, the Code of Criminal Procedure 1973 and the Indian Evidence Act, 1872 from July. While inaugurating a work shop, organized by the Ministry of Law and Justice, on the implementation of the three laws, the Chief Justice of India termed their enactment as a “watershed moment”. The new laws have transitioned India’s legal frame work as criminal justice into the new age.
It should be noted that changes have been made in the three laws governing the nearly 150 years old criminal justice system. There laws have now been made with the Indian soul. They prioritize laws that protect women and children, punish murderers and deter those who would harm the state. The laws seek to move towards a reformative justice system by providing for community service instead of imprisonment. The Bharatiya Nyaya Sanhita 2023, is a comprehensive effort to re-define and refocus the Indian Penal Code, 1860. The Bharatiya Nagarik Suraksha Sanhita 2023, recognizes the growing role of technology in legal proceedings.
The new laws are anti-criminal and justice oriented with a civil liberty centric approach since the Bharatiya Nagrik Suraksha Sanhita provides for supply of a copy of the First Information Report (FIR) to the victim and to inform the victim about the progress of investigation, including by digital means. There is also a provision which allows for all trials, enquiries and proceedings to be conducted electronically. Summons may also be served by electronic communication or by registered post. The process of conducting search of a place or taking possession of any property, article or thing including preparation of the list of all things seized in the course of such search and seizure and signing of such list by the witness, shall be recorded through any audio-video electronic measures and the police officer shall, without delay, forward such recording to the District Magistrate, Sub-Divisional Magistrate or Judicial Magistrate of First Class. To prevent misuse of power, the Investigating officer may move the court for attachment of the proceeds of crime only with the prior permission of the Superintendent of Police or the Commissioner of Police.
Regarding first information reports, the information of the commission of a cognizable offence shall be registered by the SHO irrespective the area where the offence was committed. In offences punishable with imprisonment for seven years or more, the SHO is bound to cause forensic experts to visit the crime scene to collect forensic evidence and also to take videography of the process of collection of the evidence on mobile phone or any other electronic device.
The new Act provides for admissibility of electronic or digital record as evidence, expands the scope of secondary evidence to include copies made from the original by mechanical process, copies made from or compared with the original and puts limits on facts which are admissible and its certification as such in the courts.
Community service has been included as a punishment for the first time. This process the humanizing effect of the new legislation. To ensure speedy trials, an independent Directorate of Prosecution will be established in every District. There are provisions for a summary trial for less serious offences and an opportunity is given to the victim to contest closure of the offence by the prosecution in an offence carrying punishment of over seven years. Mob lynching is a heinous crime with a provision for death penalty.
There is a baseless myth that the extension of police custody from 15 days to 90 days is a shocking provision that will enable police overreach. This is incorrect since the total period of police custody is restricted to 15 days. This change was very much needed because whenever, in any case, the investigation changed hands from the local police to the CID or CBI, the hands of the subsequent investigation agency were tied as 15 days were already over. And what we should not miss out is that it is finally the decision of the Court whether to grant police custody or not. Are those opposing their new laws, challenging the decision of the Hon’ble Courts? The feeling that the new laws threaten individual freedom are misguided since the new laws actually preserve personal liberty, have jurisdictional flexibility with mechanisms to ensure accountability.
A clear reading of the Bharatiya Nyaya Sanhita 2023, the Bharatiya Nagrik Suraksha Sanhita 2023 and the Bharatiya Sakshya Adhiniyam 2023 and comparing them with the Indian Penal Code 1860, the Code of Criminal Procedure 1973, and the Indian Evidence Act 1872, would clearly bring out that the introduction of the three new laws was a much needed change which has redeemed the nation from the shackles of colonial slavery and propelled the true meaning of justice and humanism in the administration of criminal justice in India.
The author is a former DG, ITBP and former Chairman, Haryana Public Service Commission. Views are personal.