Proposed repeal of criminal legislation biggest reform in 76 years, lawyers say

Many provisions of the IPC were considered to have been enacted to suit Victorian sensibilities

Union Home Minister Amit Shah on August 11 introduced the 'Bharatiya Nyaya Sanhita', the 'Bharatiya Nagarik Suraksha Sanhita' and the 'Bharatiya Sakshya' bills as proposed replacements for the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act.

The three laws currently govern India’s criminal justice system. While the government and the courts have updated these laws periodically, this is the first time that the government has announced a plan to replace them with new laws.

“The move to repeal the IPC, CrPC and Evidence Act is the biggest criminal law reform since Independence,” said Sameer Jain, managing partner at PSL Advocates & Solicitors. “India was amending the old 19th century law to suit its need but a fresh law in this regard will be helpful in tackling some chronic issues in taking evidence, trial procedure and sentencing.”

Many provisions of the IPC were considered to have been enacted to suit Victorian sensibilities. The courts had to intervene regularly to ensure that the law was updated to keep up with societal and technological advancements.

For instance, the Supreme Court struck down provisions of the IPC that made homosexuality and adultery punishable offences. The evidence act had to be updated to make electronic evidence admissible in the courts of law.

“The laws were archaic and needed a complete overhaul. Further, the draft bills have also accounted for technological advancements, which is commendable,” said Utsav Trivedi, a partner at TAS law.

Community service

Trivedi noted that the bill contains forward-looking provisions for digitisation of complete trial via video conferencing, framing of charges within 60 days of receiving the charge sheet, and pronouncement of judgment within 30 days of final arguments.

“This will definitely fast-track trials and reduce the pendency of cases,” he said.

Anushkaa Arora, founder of ABA Law Office, said the introduction of the bills was a “pathbreaking development” to replace “age-old archaic British raj laws.”

The bill introduces less-harsh punishment for some small crimes and introduces certain new offences. Community service, which is prevalent as a punishment in western countries, has been brought into Indian law.
“As per the stated objects and reasons, providing first-time community service as punishment for petty offences is a welcome step,” said Rohit Jain, managing partner at Singhania & Co.

However, he noted that a new set of offences such as acts of secession, armed rebellion, subversive activities, separatist activities or endangering the sovereignty or unity and integrity of India raises apprehension of misuse.

Section 150 of the Bharatiya Nyaya Sanhita, 2023, bill refers to acts endangering the sovereignty, unity and integrity of India.

“There appear to be changes in sentencing and some offences seem to have been absorbed now into the act,” said Robin Fernandes, a partner at Vesta Legal.

The sedition controversy

While Shah told parliament that sedition as an offence would be repealed as a whole, many experts said it has been brought back in a different form.
Sedition is an offence under the existing law to punish those who bring or attempt to bring hatred or contempt against the government. A person could be charged with sedition for writing or saying something against the government.

In May 2022, the Supreme Court put the provision of law on hold after it was inundated with writ petitions that challenged its constitutional validity. The government has constantly told the court that it plans to repeal the law as a whole.

Experts argued that sedition was made an offence by the British prior to independence to suppress freedom fighters and the same provision cannot be used 75 years after independence. Freedom fighters such as Bal Gangadhar Tilak were punished for sedition.

It has been argued that provisions in the bill providing for punishment for waging, or attempting to wage war, or abetting waging of war, are a replacement for sedition.