Introduction
The Indian Penal Code (IPC) was initially designed to control rather than protect
Indians, reflecting British criminal jurisprudence. Many sections are outdated due
to societal evolution. The Indian government proposed replacing these colonial-era
laws to better protect citizens’ rights. The Union Home Minister introduced three
bills in the Lok Sabha: the Bharatiya Nyaya Sanhita Bill 2023, Bharatiya Nagarika
Suraksha Sanhita Bill 2023, and Bharatiya Sakshya Bill 2023, aiming to replace
the IPC 1860, the Code of Criminal Procedure (CrPC) 1973, and the Indian
Evidence Act 1872. Union Minister Amit Shah emphasized that these laws were
originally meant to punish rather than deliver justice. This article discusses the key
provisions and changes in the proposed Bharatiya Nyaya Sanhita (BNS) of 2023.
Bharatiya Nyaya Sanhita
In India, the Indian Penal Code (IPC) 1860 is the primary law governing criminal
offenses, covering areas like property, human body, public order, defamation,
public health, and offenses against the state. The IPC has been amended numerous
times to add new offenses, modify punishments, and update existing laws, based
on recommendations from various Law Commission reports addressing issues like
food adulteration, offenses against women, and the death penalty.
To overhaul India’s criminal justice system, the Bharatiya Nyaya Sanhita Bill
2023, consisting of 358 sections (compared to the IPC’s 511 sections), was
proposed by Home Affairs Minister Amit Shah in the Lok Sabha on August 11,
2023. However, the bill was later withdrawn on December 12, 2023, and replaced
by the Bharatiya Nyaya (Second) Sanhita Bill, 2023. This revised bill was passed
by the Lok Sabha and Rajya Sabha on December 20 and 21, respectively, and
received presidential assent from President Droupadi Murmu on December 25,
2023.
Key Provisions and Changes
The new law prioritizes offenses against women, the state, murder, and children. It
standardizes the term “child” across the legislation by replacing varying
expressions like “child under the age of eighteen years” and “minor,” providing
consistency and clarity in legal language.
The Bharatiya Nyaya Sanhita (BNS) law also introduces “community service” as a
punishment for specific offenses, including unlawful trade by a public servant,
non-appearance in response to a proclamation under Section 84 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, attempts to commit suicide to compel or restrain
lawful power, public misconduct by a drunken person, and defamation. Some of
the major changes include:
*Summary of Key Provisions in the Bharatiya Nyaya Sanhita (BNS), 2023:*
1. *Definitions and Inclusions:*
- Defines ‘child’ and ‘transgender.’
- Includes ‘electronic and digital records’ in the definition of ‘document.’
- Redefines ‘movable property’ excluding land and attachments.
2. *Abetment and Offences:*
- Section 48: Criminalizes planning an offense in India from abroad.
- Section 69: Introduces punishment for sexual intercourse under deceitful
promises, with imprisonment up to 10 years and fines.
3. *Punishments for Specific Crimes:*
- *Culpable Homicide:* Section 100 | S.105
- *Murder:* Section 101 | S.103
- *Gang Rape of a Minor:* Life imprisonment or death penalty for gang rape of a
girl under 18.
- *Mob Violence:* Section 103 addresses mob violence based on discriminatory
grounds.
- *Negligent Death:* Section 106(i) increases punishment for causing death by
negligence to five years; if a medical practitioner is involved, the penalty includes
imprisonment up to two years and fines.
- *Hit and Run:* Section 106(ii) introduces a penalty of up to ten years
imprisonment and fines for fatal hit-and-run cases.
4. *Organized Crime and Terrorism:*
- *Organized Crime:* Section 111 imposes severe penalties for organized crimes,
including life imprisonment or death if the crime results in death.
- *Terrorism:* Section 113 penalizes terrorist acts with sentences ranging from
five years to life imprisonment or death, with fines.
5. *Importation of Minors:*
- Section 141 penalizes the importation of girls under 20 and boys under 18 for
illicit purposes with up to ten years of imprisonment and fines.
6. *Sedition Law Repeal and New Provisions:*
- Eliminates the sedition law (IPC Section 124A), replacing it with Section 152,
which punishes acts endangering India’s sovereignty, unity, and integrity with life
imprisonment or up to seven years and fines.
7. *Snatching:*
- Section 304 introduces ‘snatching’ as a crime, defining it as forcibly taking
property from someone and setting a punishment of up to three years in prison and
fines.
Bharatiya Nagarik Suraksha Sanhita
*Key Timelines and Procedures under the Bharatiya Nyaya Sanhita (BNS), 2023:*
1. *Investigation and Trial Timelines:*
- *FIR Registration:* Complaints submitted electronically must have an FIR
recorded within three days, speeding up the initial phase of criminal cases.
- *Medical Examination Reports:* Must be forwarded to the investigating officer
within seven days in rape cases, ensuring timely evidence collection.
- *Victim/Informant Updates:* Victims and informants are to be updated
regularly on the status of the investigation within 90 days, promoting transparency.
- *Framing Charges:* Magistrates are required to frame charges within 60 days
of the first hearing.
- *Trial in Absentia:* Courts can start trials in absentia against proclaimed
offenders 90 days after charges are framed, expediting justice.
2. *Judgment and Documentation:*
- *Judgment Pronouncement:* Criminal courts must pronounce judgments within
45 days after the trial concludes.
- *Uploading of Judgment:* Judgments must be uploaded on the court’s portal
within seven days of pronouncement for easy access.
3. *Investigation Transparency:*
- *Audio-Video Recording of Search:* Mandates recording searches and seizures
to ensure transparency during investigations.
- *Attachment of Property:* Courts can attach properties considered proceeds of
crime, distributing them among victims, providing deterrence and pecuniary relief.
4. *In-absentia Trials:*
- *Proclaimed Offenders:* The BNS allows for the trial of proclaimed offenders
in their absence, ensuring legal proceedings continue even if the accused is not
present.
Bharatiya Sakshya Adhiniyam
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaces the Indian Evidence Act,
1872 (IEA). It consolidates sections and removes colonial-era references,
maintaining a structure similar to the IEA.
*Key Changes in the BSA:*
1. *Expansion of Primary Evidence Definition:*
- Includes electronic/digital records and video recordings.
- Each electronic record, stored or transmitted video, and automated storage file
is primary evidence.
2. *Expansion of Secondary Evidence Definition:*
- Adds oral and written admissions, and evidence by experts on hard-to-examine
originals.
3. *Admissibility of Electronic & Digital Evidence:*
- Extends “documents” to include emails, server logs, messages, websites, etc.
- Electronic records now have the same legal validity as paper records.
- Broader definition of “evidence” to include electronic statements, allowing
remote testimony.
- Views from electronic evidence examiners under the IT Act are relevant,
including opinions on handwriting and digital signatures.
*4. Confessions:*
a. The BSA adds “coercion” to factors affecting the relevancy of confessions
caused by inducement, threat, or promise. A confession may be relevant if
such factors are deemed removed by the court.
b. A confession remains relevant despite being made under a promise of
secrecy, due to deception, while intoxicated, in response to non-obligatory
questions, or without warning the accused of their rights.
c. A confession by a person in a joint trial may be used against them and others
being tried jointly, even in the absence of an accused who has absconded or
failed to respond to a proclamation.
*5. Accomplice:*
The BSA clarifies that an accomplice is a competent witness against an accused,
and a conviction can be based on the corroborated testimony of an accomplice,
resolving ambiguities in the previous law.
*6. Judicial Notice:*
Courts must take judicial notice of all Indian laws, including those with extra-
territorial operation, international treaties, agreements, conventions, and decisions
by India at international bodies. The BSA eliminates references to UK-specific
authorities, focusing on Indian equivalents.
*7. Presumption as to Documents – ‘Proper Custody’:*
The BSA presumes the genuineness of documents like the Official Gazette,
newspapers, journals, or legally required documents if kept in the proper form and
produced from proper custody. It defines “proper custody” as the place where a
document should be kept, managed by the person responsible for it, with no
custody deemed improper if its legitimate origin is proven or likely. This applies to
both physical and electronic documents.
*8. Exception to the Production of Documents:*
The BSA includes a provision that prohibits courts from requiring the production
of communications between Ministers and the President of India.
*9. Experts:*
The BSA expands the scope of expert opinion to include any field, not just specific
areas.
That’s the Summary of BNS, BNSS & BSA!
