India’s Criminal Justice System Sees Major Reforms After Extensive Consultation Process

India’s Criminal Justice System Sees Major Reforms After Extensive Consultation Process

Vinod Bhat

This process of reform in the laws of the criminal justice system was started in 2019.

  • Suggestions in this regard were sought from various stakeholders.
  • In 2019, the Home Ministry started this reform process
    o The Home Minister wrote letters to all the Governors, Chief Ministers, Lieutenant Governors/Administrators in September 2019.
    o Chief Justice of India, Chief Justices of High Courts, Bar Councils and Law Universities in January 2020
    o Suggestions were also sought from Honourable Members of Parliament in December 2021.
    o BPRD asked for suggestions from all IPS officers.
    o In March 2020, a committee was also constituted under the chairmanship of the Vice Chancellor of National Law University, Delhi.
  • Total 3200 suggestions received
    o 18 States, 06 Union Territories,
    o Supreme Court of India, 16 High Courts,
    o 27 Judicial Academies – Law Universities
    o Parliament members, IPS officers, police forces also sent suggestions.
  • Honourable Home Minister held more than 150 meetings.
  • These suggestions were thoroughly discussed in the Home Ministry.

Change

  • Bharatiya Nyaya Sanhita-
    o It will have 358 sections (instead of 511 sections of IPC)
    o 20 new crimes have been added,
    o Imprisonment sentence has been increased in 33 crimes,
    o The amount of fine has been increased in 83 crimes,
    o Mandatory minimum punishment has been introduced in 23 crimes,
    o The penalty of community service has been introduced in 6 crimes.
    o 19 sections have been repealed/removed.
  • Bharatiya Nagrik Suraksha Sanhita
    o It will have 531 sections (in place of 484 sections of CrPC)
    o A total of 177 provisions have changed,
    o 9 new sections, 39 new sub-sections have been added and
    o 44 new provisions and clarifications have been added
    o Timelines has been added to 35 sections
    o Audio-video provision has been added at 35 places.
    o 14 sections have been repealed/removed.
  • Bharatiya Sakshya Adhiniyam
    o It will have 170 provisions (instead of the original 167 provisions)
    o A total of 24 provision have been changed,
    o 2 new provision, 6 sub- provision have been added and
    o 6 provision have been repealed/deleted.

Bharatiya Nyaya Sanhita: Key Features
Priority according to Indian needs

  • The British government considered protections against treason and treasury more important than murder or atrocities against women.
  • In these three laws, crimes against women and children, murder and crimes against the nation have been given prominence.
  • The priority of these laws is to provide justice to Indians and protect their human rights…

Crimes against women and children

  • The Bharatiya Nyaya Sanhita has introduced a new chapter titled ‘Crimes against women and children’ to deal with sexual crimes.
  • This bill is proposing changes in the provisions related to rape of women below 18 years of age.
  • Provision related to gang rape of a minor women to become consistent with POCSO.
  • In the case of girls below 18 years of age, a provision has been made for life imprisonment or death penalty.
  • Provision of 20 years imprisonment or life imprisonment in all cases of gang rape.
  • A new crime category of gang rape of a woman under 18 years of age.
  • Provides for targeted penalties for persons fraudulently engaging in sexual intercourse or promising to marry without true intention to marry.

Terrorism

  • Terrorism has been defined for the first time in the Bharatiya Nyaya Sanhita.
  • It has been made a punishable offence.
  • Explanation: Bharatiya Nyaya Sanhita 113. (1)
    “Whoever, with intent to endanger or is likely to endanger the unity, integrity, sovereignty, security or economic security or sovereignty of India or to cause or spread terror among the public or any section of the public in India or in any foreign country, commits any act using bombs, dynamite, explosive substances, poisonous gases, nuclear with intent to cause death to any person or persons, damage to property, or manufacture or smuggling of currency or So he commits terrorist acts”
  • Terrorist acts are punishable with death penalty or life imprisonment without parole;
  • A range of terrorist offenses have also been introduced.
  • It is a crime to destroy public facilities or private property,
  • Acts which cause ‘widespread loss by reason of damage or destruction of critical infrastructure’ are also covered under this section.

Organized Crime

  • A new criminal section related to organized crime has been added.
  • Organized crime has been defined for the first time in Bharatiya Nyaya Sanhita 111. (1)
  • Illegal activity done by syndicate has been made punishable.
  • The new provisions include armed rebellion, subversive activities, separatist activities or any act threatening the sovereignty or unity and integrity of India.
  • Small organized crimes have also been criminalized, punishable with imprisonment of up to 7 years. The provisions related to this are in section 112.
  • Economic offenses are also defined as: includes acts such as tampering with currency notes, bank notes and government stamps, running any scheme or embezzlement in any bank/financial institution;
  • In organized crime, if a person is killed, the accused can be sentenced to death or life imprisonment.
  • A fine will also be imposed, which will not be less than Rs 10 lakh.
  • Provision for punishment has also been made for those who help in organized crime.

Other important provisions

  • New provision on mob lynching: A new provision on crime related to murder committed on the basis of race, caste, community etc. has been included, for which a provision of life imprisonment or death penalty has been made.
  • A new provision related to snatching also
  • There will now be more severe penalties for serious injuries that result in near-disability or permanent disability.
    Victim-centric
  • Victim-centric reforms in the criminal justice system have 3 key features:
  1. Right to Participation (Opportunity for the victim to express his views, BNSS 360)
  2. Right to Information (BNSS Section 173, 193 and 230)
  3. Right to compensation for loss
    And all these three features have been ensured in the new laws.
  • The practice of filing zero FIR has been institutionalized (BNSS 173)
    FIR can be lodged anywhere, irrespective of the area in which the crime took place.
  • Victim’s right to information
  • Victim has the right to get a copy of the FIR free of cost.
  • Informing the victim about the progress in the investigation within 90 days.
  • Provides victims with an important right to information about the details of their case through mandatory provision of police reports, FIRs, witness statements, etc.
  • Provisions have been included to provide information to victims at various stages of investigation and trial.

Treason

  • Sedition – Sedition has been completely removed.
  • Crime under Bharatiya Nyaya Sanhita section 152:
    o To encourage the sentiments of separatist activities
    o Threatens the sovereignty or unity and integrity of India;
  • IPC section 124A talks about “against the Government”, but Bharatiya Nyaya Sanhita section 152 talks about “sovereignty or unity and integrity of India”.
  • There was no mention of ‘intent or purpose’ in the IPC, but in the new law there is mention of ‘intent’ in the definition of treason, which provides safeguards for freedom of expression.
  • Now words like hatred, contempt have been removed and words like ‘armed rebellion, destructive activities, separatist activities’ have been included.

Bharatiya Nyaya Sanhita Section 152:
“Whoever, knowingly or purposefully, by words spoken or written, or by signs, or by visible representation, or by electronic communication, or by the use of financial means, or otherwise, incites secession or armed rebellion or subversive activities Is or attempts to incite, or encourage feelings of secessionist activities or threaten the sovereignty or unity and integrity of India; or is involved in or involved in any such act, shall be punished with imprisonment for life or imprisonment which may extend to seven years and may also be liable to fine.”

Major features of Bharatiya Nagrik Sukraksha Sanhita
Time-line:

  • Prescribed a time limit for initiation of criminal proceedings, arrest, investigation, charge sheet, proceedings before Magistrate, cognizance, charges, plea bargaining, appointment of Assistant Public Prosecutor, trial, bail, judgment and punishment, mercy petition etc.
  • Timeline has been added in 35 sections, which will make speedy delivery of justice possible.
  • In BNSS, the FIR has to be taken on record within three days by the person giving the complaint through electronic communication.
  • The medical examination report of the victim of sexual harassment will be forwarded by the Medical Examiner to the investigating officer within 7 days.
  • Victims/informants will be informed about the status of the investigation within 90 days.
  • The framing of charge will have to be done by the competent magistrate within 60 days from the first hearing of the charge.
  • To expedite the trial, initiation of trial in absentia against criminals declared by the court before the framing of charges will happen within 90 days.
  • The passing of judgment shall not exceed 45 days after the conclusion of the trial in any criminal court.
  • The decision of acquittal or conviction by the Sessions Court shall be within 30 days from the completion of arguments, which may be extended up to 45 days for reasons mentioned in writing.

Crimes against women

  • Offers a transformative approach to reporting crimes against women through e-FIR. Helps in prompt reporting of sensitive crimes.
  • The new bills also allow e-FIR for cognizable offenses where the accused is unknown.
  • Electronic platforms provide a discreet opportunity for victims to report crimes.

Progress of investigation: Information to complainant and electronic transparency

  • In a departure from conventional practice, the police are strictly required to inform the complainant about the progress of the investigation within 90 days.

Timely Trial: Guidance on Adjournments and Timelines

  • In the judicial sector, emphasis is being laid on two things – expediting trials and curbing unfair adjournments.
  • Section 392(1) better prescribes a time limit for concluding the trial by providing for a judgment within 45 days.
  • Delay in justice means denial of justice.

Enhancing the use of technology: Creating the world’s most modern justice system

  • Use of technology at all stages from crime scene – investigation – till trial.
    o Transparency and accountability will be ensured in police investigation,
    o The quality of evidence will improve and
    o The rights of both the victim and the accused will be protected.
  • This is a positive step towards modernizing the criminal justice system.
  • Case diary from FIR, charge sheet from case diary and judgment will all be digitized.
  • A register containing e-mail addresses, phone numbers or any other such details will be maintained by all police stations and courts.
  • Evidence, recording during search and seizure
    o Audio-video recording mandatory
    o The audio-video recording should be presented before the magistrate ‘immediately’.
    o Requirement for videography of the process of collecting forensic evidence.
  • Option of audio-video recording of any statement given during police investigation.

Forensics

  • Forensic evidence collection at the crime scene by ‘Forensic Expert’ mandatory in all crimes punishable with punishment of 7 years or more.
    o This will improve the quality of investigation and
    o Investigation will be based on scientific method.
    o Target of 100% conviction rate.
  • Mandatory use of forensics in all States/Union Territories.
  • Necessary infrastructure is to be created in the States/UTs within 5 years.
    Initiatives
  • Focus on establishment of National Forensic Science University (NFSU).
  • Total 7 campuses of NFSU + 2 Training Academy
    (Gandhinagar, Delhi, Goa, Tripura, Guwahati, Bhopal, Dharwad)
    o National Forensic Science Academy started in CFSL Pune and Bhopal
  • State-of-the-art DNA analysis facility inaugurated in Chandigarh

Search and seizure

  • Technology will also be used by the police to conduct search and seizure operations.
  • Videography through electronic devices of the entire process of searching or seizing any property by the police.
  • Such recording will be sent by the police to the concerned magistrate without any delay.

Police Accountability: Check and Balance

  • Displaying information about arrested persons:
    o Additional obligations of the State Government to nominate a police officer who will be responsible for making all arrests and collecting information in respect of arrested persons.
    o It is also necessary to display such information prominently in every police station and district headquarters.

Simplifying processes

  • Now petty cases will be expedited through summary trial.
  • Summary trial has been made mandatory for less serious cases, such as theft, receiving or possessing stolen property, unauthorized entry into house, disturbing peace, criminal intimidation etc.
  • In cases where the punishment is up to 3 years (earlier 2 years), the Magistrate may conduct a summary trial in such cases for reasons to be recorded in writing.
  • The competent authority will take a decision within 120 days on consent or disagreement to conduct prosecution against civil servants, if not, it will be assumed that permission has been granted.
  • Evidence of civil servants, experts, police officers and the person holding its charge will be able to give testimony on such document or report.

Under trial prisoner

  • If a person is a first-time offender, and has served ‘one-third of the imprisonment’, he will be released on bail by the court.
  • Where the undertrial prisoner has completed ‘half or one-third of the term’, the Jail Superintendent should immediately apply in writing to the court.

New Witness Protection Scheme

  • The State Government will prepare and notify an Evidence Protection Scheme for the State.

Confiscation of property of declared criminals

  • In cases involving imprisonment of 10 years or more or life imprisonment or death penalty, the convict can be declared a proclaimed offender.
  • A new provision has been made for attachment and confiscation of assets outside India, in cases of declared criminals.
  • Earlier, Proclaimed Offender could be declared only in 19 crimes, now 120 crimes have been brought under its ambit.
    Which includes the offense of rape, which was not previously included
    Disposal of assets
  • A large number of case properties are lying in the police stations of the country.
  • Provision has also been made for speedy disposal of such properties during investigation, preparation of property details and photographs/videography by the Court or Magistrate
  • Photo or videography can be used as evidence in any investigation, trial or other proceeding.
  • Within 30 days of taking photographs/videography, order disposal, destruction, confiscation or delivery of the property.

Bharatiya Sakshya Adhiniyam
Major changes

  • Expanding the definition of documents in the Bharatiya Sakshya Adhiniyam, 2023 to include
  • Electronic or digital records,
  • Emails, server logs, documents available on the computer,
  • Messages, websites, locational evidence of smartphone or laptop.
  • Electronic records included in the definition of ‘document’
  • Statements obtained electronically are included in the definition of ‘evidence’
  • Added more standards to treat electronic and digital records as primary evidence, emphasizing its proper custody-storage-transmission-broadcast.
  • More types of secondary evidence were added to include oral and written confessions and the evidence of a skilled person examining documents which cannot be easily examined by the court.
  • Establishes the legal admissibility, validity, and enforceability of electronic or digital records as evidence.

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