Prabhnoor Kaur
Introduction
A panel for the Amendments in the Criminal Laws was formed in 2020, marking the beginning of the conversations about changing the Criminal Laws. On August 11, 2023, Amit Shah, the Home Minister, introduced three bills in the Lok Sabha. On December 20, 2023, three new criminal bills were passed as a result. The primary goal of passing these bills was to create a “Justice System based on Indian jurisprudence,” . The Indian criminal justice system needed to be updated and modernised to meet the needs of society. This significant move was motivated by the goal of “delivering swift justice, rather than handing only punishment.”
Loopholes in the new Criminal Law Bills
The first and foremost change which took place was in the names of the previous criminal acts. The Indian Evidence Act of 1872, the Indian Penal Code of 1860, and the Code of Criminal Procedure of 1973 were renamed as Bhartiya Nyaya Sanhita, Bhartiya Nagarik Suraksha Sanhita, and Bhartiya Sakshya Bill, 2023
Like any other new development in society, it was also not without criticism. While some were enthusiastic about this new development, others were a little sceptical, and many detractors were vehemently against it.
The new bills incited the opposition parties to denounce them. The opposition party, known as the INDIA Allies, made the decision to file a lawsuit against them in the Hon’ble Supreme Court. The main changes that caused the public to criticise the new act were that it gave police officers unrestricted authority, which meant that they would be loyal to and obedient to powerful, wealthy, and politically influential people.
Talking about its loopholes, the acts also gave more time to the police officials to detain and keep people in their custody. Observing that the clause of the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, which allows police detention beyond the initial 15 days of arrest endangers civil liberties, Dr. Anup Surendranath, and Ms. Zeba Sikora state, “One specific aspect of the BNSS will have a major effect on civil liberties, but it has received little attention. The BNSS increases the maximum period of police custody under general criminal statutes from 15 days to 60 or 90 days (depending on the severity of the crimes). Under the present legislation, custody by police is restricted to the first fifteen days after arrest. The proposed BNSS expansion increases the risk of police excesses.”
The UAPA and the new comprehensive set of anti-terror regulations in new bills are the two new sets of anti-terrorism laws established by the new code. This creates ambiguity and confusion and leaves it entirely up to the depute SP-level officer to decide which of the two laws would apply in a given situation. On how to choose the applicable provision, no clear and specific guidance has been offered. In addition to the parties opposed, some well-known judges, solicitors and legal experts voiced their opposition to the new bills. “To a great extent, it’s an old wine in a new bottle,” stated Senior Advocate Rebecca John. The core has not changed merely because the section numbers have been adjusted and rearranged. Rather, it presented a major obstacle only to the legal practitioners and judges.
These people have been accustomed to a certain pattern for hundreds of years, so the new bills would be helpful if they improved; however, since the acts’ main contents remain the same, simply altering the order and numbering of the sections could make it more difficult to understand and implement. Making a section 309 to 152 will not make any difference and only lead to only uncertainty.
Another variation was that the sections as well as the provisions were deficient as well as indecipherable. One example that can be used here is that under the new code, lynching is considered murder and is punishable by death, life in prison, or a sentence exceeding seven years.
Another gap in the system is that offences such as corruption are punishable under both the Prevention of Corruption Act and the criminal code. Additionally, consultation should be done before taking such a significant action that will impact the public. However, these weren’t submitted for consideration.
Two crucial panel recommendations—a gender-inclusive clause that criminalises adultery and a section punishing non-consensual sex between men and women, transpeople, and acts of bestiality—are absent from the amended Bill. In the landmark ruling in Navtej Singh Johar v. Union of India, the Honourable Supreme Court struck down Section 377 of the Indian Penal Code, which prohibited adults from engaging in consensual same-sex relationships. Nonetheless, non-consensual sexual relations with adults, all-consensual sexual relations with minors, and bestiality could still be covered by this clause.
The Home Minister, Mr. Amit Shah, stated that sedition would be entirely outlawed by the new laws; however, section 150 of the new act refers to sedition as “endangering the sovereignty, unity, and integrity of India.” Similarly, section 303, which the Hon’ble Supreme Court ruled was unconstitutional, was subsequently reinstated under section 102, leading to ambiguity and imprecision.
The forensic laboratories play a crucial role in investigations. Because they offer law enforcement and the judiciary analytical support. These labs also carry out DNA-based forensic examinations for crimes like robbery, sexual assault, and murder. Even though the Bill increases the use of forensics in investigations, there are still issues with forensic facilities’ accessibility.
Suggested Changes
The new criminal bills ought to consider the objections expressed by different concerned groups. This entails reevaluating the prolonged police detention times, guaranteeing petitioners have access to more than just their family members, bringing clarity to the application of anti-terrorism laws, resolving the worries of legal professionals regarding resentencing, and establishing separate provisions for new crimes such as lynching. Furthermore, the bills ought to go through extensive public consultations, include crucial panel recommendations like criminalising non-consensual acts and implementing gender-neutral provisions, and carefully reevaluate the reintroduction of some sections like Section 303 and sedition. Attention also needs to be paid to the forensic facilities’ cooperation and accessibility. It is important to conduct routine monitoring and evaluation in order to spot any unexpected consequences and make necessary improvements to the criminal justice system.
Conclusion
In conclusion, even though the 2023 criminal bills sought to restructure India’s legal system in accordance with indigenous beliefs, several issues and loopholes have come to light. It is imperative that concerns about prolonged police detention, anti-terrorism law clarity, legal professionals’ concerns, and separate provisions for new offences be addressed. A balanced legal framework must include public consultations, critical recommendations, and re-examination of reintroduced sections such as sedition. Continuous monitoring is also crucial in order to ensure that justice is delivered effectively and no one faces and issue.