India’s new criminal legalisation: prioritising justice over punishment

On 1 July 2024, in a landmark initiative introduced to reform and modernise India’s aging criminal justice framework; the decades old “India Penal Code, 1860”, the Criminal Procedure Code 1973 and Indian Evidence Act 1872 were replaced with the new Bharatiya Nyay Sanhita (‘BNS’), Bharatiya Nagarik Suraksha Sanhita (‘BNSS’), and Bharatiya Sakshya Act (‘BSA’).

The new legislation is tailored to address contemporary societal, technological, and legal challenges that have emerged since the colonial era. This new legislative framework has been meticulously drafted by a committee of legal experts and policymakers to modernise criminal law and better align with current needs in an evolving Indian society.

Salient features of the BNS 2023

The Bharatiya Nyaya Sahita 2023 is concise, with 358 sections in twenty chapters compared to the Indian Penal Code 1860 which had 511 chapters in twenty-three chapters. The BNS retains much of the century-old Indian Penal Code’s structure while introducing new offences.

It introduces updated legal provisions to address contemporary crimes such as cybercrime and organized crime, reflecting modern societal challenges. It omits decriminalised offences and enhances penalties for serious offences while emphasising human rights protections. Offences against women and children, which are scattered in different chapters in Indian Penal Code have been brought together in chapter V in BNS.

The BNS focuses on the protection of women and children, taking cognisance of increasing crimes against them such as human trafficking, sexual exploitation by deceitful means, and domestic violence. Punishment for rape has been made more severe, with provisions for life imprisonment and even the death penalty in cases involving minors or extreme brutality. The reformed Code addresses stalking, acid attacks, and other forms of gender-based violence comprehensively.

Another key modification is the inclusion of transgender in the definition of  “gender” under section 2(10) of BNS as well as recognition of digital and electronic records under the definition of “document”.

Commencement

The BNS came into force on 1 July, 2024, except for the provisions of sub section (2) of section 106 dealing with “causing death by negligence”.  The Indian Penal Code (IPC) 1860 stands repealed with savings.

IPC offences that are not part of BNS

Adultery, sedition, sexual intercourse against the order of nature, attempts to commit suicide and so forth are deleted from BNS.

Punishment Enhancement under BNS

Punishment is enhanced for 33 offences including causing death by negligence, causing hurt to deter a public servant from duty, criminal breaches of trust and teaching. Community service can be imposed in six petty offences. The fine has been increased for 83 offences under BNS.

The BNSS 2023 aims to reform the age-old Criminal Procedure Code by introducing fixed timelines for completion of investigations to ensure not only speedy but also effective justice making it more responsive towards the needs of the people.

All police raids and seizures are now required to be mandatorily videoed and require forensic experts to mandatorily visit the crime scene for all serious offences. Another salient feature of BNSS is that trials in absentia for grave offences are now permitted, i.e., even in a situation when the police are unable to trace the accused, the court can proceed with trial and rule on such cases and the punishment shall be carried out once the person is found.

The concept of Zero FIR has been formally introduced, allowing a complainant to register their complaint at any police station, regardless of jurisdiction, which is then transferred to the appropriate station. The introduction of this provision was crucial to ensure timely action is initiated in serious crimes, particularly those involving women and children.

Citizens can now file the First Information Report (FIR) through online platforms which simplifies the process and as well as creates a digital-records that can be easily monitored and actioned upon, reducing instances of corruption and negligence.

The new laws focus on justice rather than punishment and are aimed at providing speedy justice, all the way, strengthening the judicial and court management system emphasising “access to justice by all”.

This article was written by Kavisha Shah of the India Law Alliance.