The three new criminal laws, which came into effect on July 1, are an attempt to mark a significant shift from the old criminal laws, according to experts. The new laws are more victim centric and upgrade the definition of crime to catch up with technological advancements, they said.
The three laws were approved by Parliament during the winter session of 2023 and received the President’s assent on December 25, 2023. The Bharatiya Nyaya (Second) Sanhita, 2023; Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and Bharatiya Sakshya (Second) Bill, 2023, have replaced the Indian Penal Code (1860), the Criminal Procedure Code, and the Indian Evidence Act.
The new laws have expanded the scope of crimes to include specific laws to deal with cybercrimes and economic offences, while there is a greater focus on crimes against children, death penalty for gang rape and a timeline for delivering judgment within 30 days of being reserved.
The new laws introduce news offences like hate speech and terrorism. Terrorism was not a crime under the IPC, with persons committing acts of terrorism being prosecuted for murder or causing harm; similarly hate speeches against communities were tried under the provisions relating to incitement of hatred or causing disharmony amongst communities.
Himanshu Arora, partner at Deloitte India, said, “The new criminal laws are expected to bring in reforms that prioritise victim rights, efficient procedures, and technological integration.”
The laws also make it tougher to file a first information report, placing the onus on the police authorities to conduct a preliminary enquiry before filing an FIR – the aim behind this move is to reduce the mounting number of FIRs.
“The new criminal laws have deleted colonial terminologies such as 'British India', 'Queen' etc, which have become obsolete. It addresses modern crimes such as organised crime, cyber threat to address present-day challenges,” said Apeksha Lodha, partner at law firm Singhania and Co.
The new criminal laws have been hailed as the biggest criminal law reform since India attained independence in 1947 as they were enacted in the 19th century. Some of the sections like 377 of IPC had to be read down by the Supreme Court to decriminalise homosexuality in the country. Similarly, under the old criminal laws, adultery was considered an offence, however, the Supreme Court intervened and struck it down.
“The older laws primarily concentrated on offences against the human body, sedition, theft, unlawful assembly, public health, defamation, and offences against the State. Conversely, the new laws aim to address colonial legacy by modernising archaic concepts and aligning the law with the Indian sociological system,” said Mumtaz Bhalla, partner at Economic Laws Practice. For instance, the new laws bring in concepts of reformation and community service, such a concept was non-existent in the colonial law.
Victim centric and pro reform
The new penal code retains most of the offences but introduces stricter punishment for crimes against women and children. For instance, deceiving a woman under a false promise of marriage is now an offence while it was a grey area in the old penal code. The new penal code also has provisions aimed at reformation over punishment as it contemplates punishments like community service.
Bhalla said, “BNS aims to prioritise offences against women and children, where a child is explicitly defined as any individual under the age of 18. Additionally, the new legislation acknowledges transgender individuals as a third gender.”
According to Bhalla, the new law provides for death penalty for gang rape of a woman under 18 years of age. She noted that the offence of voyeurism has been made gender neutral meaning that even a woman can be prosecuted if she captures the image of another woman engaging in a private act in certain circumstances.
While the old criminal laws broadly defined and contemplated punishments for offences against women, they left many aspects of the exploitation of women open to the interpretation of the court. For instance, deceiving a woman under a false promise of marriage is now an offence, while it was a grey area in the old penal code.
The old criminal laws were considered problematic, especially from the perspective of obtaining bail as a person who was taken into custody for small offences could remain in jail for days on end as his bail could be opposed. The new laws have addressed such issues and ensured that a person who has been charged with petty offences can obtain bail easily, by making it mandatory to grant bail for petty offences. Similarly, the new laws have also introduced the aspects of reformation after crime.
Aishwarya Kaushiq, advocate at BTG Advaya, said, “The new laws reform and make it easier to get bail in petty cases, strengthen victim rights, and make trials more efficient. Notably, the Bharatiya Nyaya Sanhita has also introduced community service as a form of punishment. The new laws allow first-time under-trial offenders to get bail after serving one-third of their maximum sentence, aiming to reduce prison overcrowding.”
“The new law attempts to strike a balance between punishment and reform. The BNS has introduced ‘community service’ as a form of punishment for petty offences such as theft where the value of stolen property is less than Rs 5,000, misconduct in public by a drunken person, defamation, etc, and increased punishment and enhanced fines for serious crimes to deter and ensure consequences,” said Lodha.
Changed laws for changing times
The old laws did not address cybercrime, modern financial crimes and other crimes that have come about owing to the advent of technology. To punish a person for having committed any modern-day crimes, the law enforcement agency would have to charge them within the four corners of Victorian laws. Under the old law, if a person’s bank account was hacked and money was stolen, the thief would be tried for theft under the IPC while being punished for hacking under the Information Technology Act, 2000. The new criminal laws address these problems, experts noted.
Arora said, “The new criminal laws further strengthen the fight against crime by introducing a broader definition of organised crime, encompassing financial scams and cybercrime. This also includes ‘petty organised crime’, widening the scope for intervention. Stricter penalties should act as a deterrent, while the increased focus on digital forensics necessitates a growing pool of forensic experts to handle the potential surge in investigations.”
“These Bills introduce new offences like hate speech and terrorism and define organised crime, linking it with economic offences such as financial scams and money laundering. They increase punishments for crimes like criminal breach of trust, mandate the reporting of certain offences, and introduce community service for petty crimes. Sedition is replaced with treason, and theft now includes intangible items like data,” Sanjeev Kumar Sharma, senior partner at law firm Saraf and Partners, said.
How will criminal trials change?
A trial is a process wherein evidence and witnesses are examined in the court of law. After the examination of witnesses, arguments are presented before the court on their credibility, the court then passes a judgment on conviction. However, the trial process, which is arterial to criminal law, has been criticised for being slow. Slow criminal trials have contributed to large-scale pendency in Indian courts. The pendency of criminal cases is manifold over that of civil cases.
Sharma, said, “The Bharatiya Nagarik Suraksha Samhita introduces several key procedural changes aimed at expediting and modernising the judicial process. One significant change is the introduction of trial in absentia, detailed in Section 356, which allows the court to proceed with and conclude trials even if the accused is absent, deeming the proclaimed offender to have waived their right to be present. This aims to prevent delays caused by absconding defendants.”
The new laws also push for digitisation of the trial process and enable the conduct of certain aspects of trial via video conferencing.
Sonam Chandwani, managing partner at KS Legal, said, “The use of video conferencing for witness testimonies can mitigate delays and ensure witness safety. The necessity of these changes stems from the inefficiencies and delays inherent in the old system, which often resulted in prolonged pre-trial detentions and justice denied due to procedural bottlenecks.”
The laws also provide for more scientific methods of evidence collection in case of heinous crimes like rape. “The law introduces mandatory forensic investigation for crimes punishable by seven years or more, ensuring the use of scientific methods in evidence collection. There are specific timelines such as medical reports in rape cases to be submitted within 7 days and judgment to be delivered within 30 to 60 days,” said Alay Razvi, partner at Accord Juris.
To conclude, Kaushiq noted that the reforms in the new criminal laws collectively aim to create a more just, efficient, and technologically advanced criminal justice system in India.
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