Analysis of Bills to Overhaul the Criminal Justice System

Context- There needs to be proper parliamentary scrutiny of the new Bills replacing the IPC, the
CrPC and the IEA to ensure a fair, just and efficient criminal justice system.
About the recent Revamping of the criminal justice system

  • The Government has introduced three Bills to replace the core laws, i.e., the Indian
    Penal Code (IPC), 1860, the Code of Criminal Procedure (CrPC), 1973, and the Indian
    Evidence Act (IEA), 1872, which form the basis of the criminal justice system.
  • The Bharatiya Nyaya Sanhita Bill will replace the IPC;
  • The Bharatiya Nagarik Suraksha Sanhita Bill will be in place of the CrPC, and
  • The Bharatiya Sakshya Bill will replace the IEA (Indian Evidence Act, 1872).
  • Significance: As these Bills replace the entire Acts — and are not merely Amendment
    Bills to fix some gaps — they provide an opportunity for an overhaul of the laws
    underlying the criminal justice system.
    The Bharatiya Nyaya Sanhita Bill
    – IPC Section 420: Cheating
    a. IPC Section 420 deals with Cheating and dishonestly inducing delivery of property.
    b. In proposed Bill, 2023: There is no Section 420 and the offense of cheating is covered under
    Section 316.
    IPC Section 124A: Sedition
    a. IPC Section 124A deals with Sedition.
    b. In proposed Bill,2023: Section 124 in the proposed Sanhita relates to the offense of wrongful
    c. The word sedition does not exist in the proposed Sanhita. Offenses of the nature described as
    “sedition” in the IPC are covered in Section 150 of the proposed Sanhita, as “Acts endangering
    sovereignty, unity and integrity of India”.It is a more detailed provision than IPC Section 124A.
    – IPC Section 302: Murder
    – IPC Section 307: Attempt to murder
    – IPC Sections 375 and 376: Rape
    – IPC Section 120B: Criminal conspiracy, etc.
    The Bharatiya Nagarik Suraksha Sanhita Bill
  • Greater use of technology: Trials, appeal proceedings, recording of depositions including
    those of public servants and police officers, may be held in electronic mode. The
    statement of the accused too can be recorded through video- conferencing. Summons,
    warrants, documents, police reports, statements of evidence can be done in electronic
  • Communication devices: The Bill adds electronic communication including
    “communication devices” to the provision on summons to produce a document. On the
    directions of a court or police officer, a person is required to produce any document —
    and now devices — that is likely to contain digital evidence for the purpose of an inquiry.
    – Mercy petitions: There is a provision on procedures for the timeframe to file mercy
    petitions in death sentence cases. After being informed by jail authorities about the
    disposal of the petition of a convict sentenced to death, he, or his legal heir or relative
    can submit a mercy petition within 30 days to the Governor.
  • If rejected, the person can petition the President within 60 days. No appeal against the
    order of the President shall lie in any court.
  • Sanction to prosecute: A decision to grant or reject sanction to prosecute a public
    servant must be reached by the government within 120 days of receiving a request. If
    the government fails to do so, the sanction will be deemed to have been accorded. No
    sanction is required in cases including sexual offenses, trafficking, etc.
    The Bharatiya Sakshya Bill
  • The bill makes electronic or digital records admissible as evidence, thereby they will
    have the same legal effect as paper documents.
  • It repeals five existing provisions of the Evidence Act, modifies 23 provisions, and
    adds one new provision.
    Sco – 226 Top Floor Sector – 36D Chandigarh 9779190222/9988210461
  • The bill proposes amendments to 23 Sections and contains 170 Sections in total.
  • In the bill, the scope of expansion for secondary evidence to include copies made
    from the original by mechanical processes, counterparts of documents, and oral
    accounts of document contents has been done.
  • Through the bill, the government is aiming to introduce precise and uniform rules for
    dealing with evidence during the trial of cases.
    Issues & challenges
    Intersecting laws
  • Usually, criminal law deals with issues that are seen as an offence against the broader
    society or state while civil law deals with loss to a person.
  • However, the CrPC includes provisions for maintenance of wife and children after
    divorce. It also allows compounding of some offences by the affected person, which
    means the accused person is acquitted.
  • The question is whether such matters should be dealt with under the civil code. The new
    Bills retain these provisions.
    Creation of a reformative system rather than a punitive system
  • There is a move towards this by making community service as a form of punishment.
  • However, several minor offences (such as keeping an unauthorised lottery office, which
    carries a maximum penalty of six months imprisonment) are not compoundable, which
    means they will go through the process of trial and conviction.
    Maintenance of public order and the process of criminal prosecution in the same law
  • The CrPC has provisions charting out the process of arrest and trial as well as items such
    as Section 144 that empower the district magistrate to impose various restrictions. The
    new Bill retains this structure.
    Codification of SC’s directions
  • Experts are questioning whether various directions of the Supreme Court of India have
    been codified in these proposed laws.
  • The Bill codifies the procedure for mercy petitions. However, there is no codification of
    various directions related to arrests and bail.
    Question over updation of gender related offences
  • The Bill is in line with the Supreme Court judgment which struck down the offence of
  • Section 377 of the IPC, which was read down by the Court to decriminalise same sex
    intercourse between consenting adults has been dropped; consequently, the parts
    retained by that judgment including rape of a male adult and bestiality have also been
    Overlap with special laws
  • The IPC was enacted in 1860 as the principal law specifying offences and penalties.
  • Since then, several laws have been enacted to deal with specific offences.
  • However, the IPC and the Bill to replace it continue to specify some of these offences
    and the applicable penalties.
  • This leads to duplication as well as inconsistency across these laws.
  • In some cases, the penalties are different; also, a person may face prosecution under
    different laws for the same action.
    Way ahead
  • These Bills will become the basis of the criminal justice system.
  • The envisioned criminal law reforms must be made in a manner that fosters the rule of
    law and fortifies the pursuit of justice for aeons to come.