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Ansuman Barik,
Christ ( Deemed to be University) Bangalore
INTRODUCTION
The Indian criminal justice system is not a recent development. It originated even before 1000 BC. In the early times, there were no explicit procedures or laws as such to punish the offenders. People used to get justice for themselves by way of retaliatory and revengeful methods. However, as the time passed, society started developing, people started to form communities and Dharma became the essential cornerstone to regulate the behaviour, actions and affairs of the people. It provided a code of conduct to the people to act in a particular manner. There was no state, no authority. There was no kingdom and no king to maintain law and order. Everyone respected each other's rights. All their actions were as per dharma. But as the time progressed, there were some people who did not believe in dharma, started exploiting the weaker section for meeting their own greed. The tyranny of these sections resulted in the emergence of King as an institution of justice. The duty of the King is to maintain proper law and order, protect the rights of its people and punish the offenders for their wrongs. This system came to be known as the criminal justice system. Although the Indus-valley civilization suggests that an organised society existed during pre-Vedic period in India, traces of the criminal justice system can only be found during the Vedic period when well defined laws had come into existence. The actions of the King to maintain law and order in the society was inspired by Vedas. In the ancient time, the criminal justice system was well organised where village council members solve people’s disputes at village levels. Soon the police and jail system was introduced as described in Kautilya’s Arthasastra. As the time progressed, India faced Mughal invasion which led to the downfall of Hindu Kings. The criminal justice system continued to be the same in the mughal period as well. However, it substituted with the islamic law. Quran and Sunnah were the literatures that were followed by the mughal in order to maintain law and order in the society. They established courts named as Faujdari and Nizamat Adalat where Kazi’s and Mufti’s acted as judges to decide the cases. In 1608, the British East India Company started its business in India. And with the passage of time, Britishers started interfering with the administrative and judicial system of India. They slowly took control over territories of India. This continued till 1857, when the Crown took over the control from the Company. During that time, Hindu and Muslims were governed by their personal laws. However, there were many flaws in the criminal justice system. Therefore, Governor General Warren Hasting proposed to form a sound judicial system for the country. In 1835, the Crown constituted the 1st Law Commission in India to establish uniform judicial procedure for the operation of law. Finally, after 15 years, the Indian Penal Code,1860(IPC) was introduced. Subsequently, Indian Evidence Act,1872(IEA) and Code of Criminal Procedure,1898(CRPC) were also introduced.
THE INTRODUCTION OF THE NEW CRIMINAL LAW OF INDIA
The change in the criminal justice system was much awaited. With the growth and development of the country, the crimes are also increasing significantly. Offenders have found new ways of commiting crime which does not come under the purview of IPC, IEA and CRPC. These new laws aim at removing all the colonial traces by implementation of justice from a victim centric approach and prioritizing the use of electronic evidence for delivering justice to the people. Finally, on 21 December 2023, the Parliament passed the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Sakshya Sanhita and Bharatiya Sakshya Adhiniyam which will replace the Indian Penal Code,1860 ,Indian Evidence Act,1872 and Code of Criminal Procedure,1898.
COMPARATIVE ANALYSIS OF NEW LAWS AND OLD LAWS
The old laws i.e. the IPC, the Cr.P.C and the Evidence Act, were introduced by the Britishers to oppress the voices of Indians against the British Raj. These include the law of sedition which bars the people from going against the government. However, these laws continued for a prolonged period of time and had been misused over the years. The philosophy of the old laws were punitive and retributive justice. There were fixed punishments and penalties specified for various kinds of crimes, limited admissibility of electronic evidence, strict and rigid rules and lengthy procedure resulting in delays and backlogs. In contrast, the new criminal laws are with the philosophy of providing restorative justice focused on rehabilitation and victim centric. It has provided the scope for admissibility of electronic evidence and is aimed at expediting trials by putting time constraints and use of technology for smooth function of the courts.
THE INCORPORATION OF NEW CHANGES
The advent of the new criminal laws has shown waving hands to the old criminal law system. These new upgraded laws are being implemented with an aim of bringing uniformity and stability in the criminal justice system of the nation. The following are the new changes that has been incorporated:
BHARATIYA NYAYA SANHITA
This is the first time after 160 years, the provision of community services has been implemented in section 4 of the BNS for petty crimes or non cognizable offences.
The BNS focuses on bringing gender neutrality to protect the fundamental rights of the gender oriented minorities like transgenders etc. Additionally, crimes against women,children,state and certain crimes like murder have been given priority.
The biggest change in the new law is the removal of the law of sedition for the Indian context. This law was used by the Britishers to stop Indians from raising their voices against the British government. This law was significantly used by the ruling party to suppress the voices of critics or opposition parties. However, this age-old law has been replaced with section 150 of BNS which states that any person’s act that endangers the sovereignty and integrity of India will be punished with rigorous imprisonment for life.
The act has provided a broad definition of organised crime and economic crime under section 109 of BNS which will punish people who commits human trafficking etc; for monterey benefits. The provision also prescribes punishment of imprisonment or death and fines.
It has also given a clear definition of terrorism under section 111 of BNS.The proposed definition came after 30 years. This shows the intention of no tolerance to terrorist activities of the Government. Additionally, it includes people for prosecution who help in supporting logistically or financially the terrorist activities from abroad.
BHARATIYA NAGRIK SURUKSHA ADHINIYAM
The BNSS has come up with a new timeline during various phases of investigation and trial. For instance, further investigation after the filing of chargesheet has to be completed in under 60 days. The extension for this timeline is in the hands of the courts. The police have to update about the status of investigation via electronic communication to the victim or informant within the time period of 90 days. It has also set a timeline for the delivery of the judgement. The judgement has to be given within 30 days of the last day of argument, which may extend upto 60 days.
The BNSS has focused more on the use of technology for investigation and trial. It has facilitated the use of audio and video conferencing systems for speedy disposal of cases. The police officers have been mandated with the use of audio-video recording while collecting evidence. Additionally, the accused can appear before the court through video conference.
With the use of technology, the question of jurisdiction would also surface, which has been solved in this act. It says that cheating offences that are committed "by means of electronic communications, letters, or telecommunication messages" are subject to investigation and trial by any court that has local jurisdiction over the location of the electronic communications, letters, or messages that were sent or received.
A new provision related to FIR registration has been introduced. Previously, FIR could only be registered where the crime took place and it came under the local jurisdiction of that police station. However, with the introduction of “Zero FIR”, anyone can file a complaint in the nearby police station and the respective police station is obliged to transfer the case to the police station which has the jurisdiction.
It comes up with the attachment of the properties that are obtained by means of engagement in any criminal activities, and can be submitted in the court via an application by the police. These properties will be distributed among the people who were victims of the criminal act.
It has also provided the way the trial of absconder has to take place. It states that the person who absconds from the trial has no right to appeal in the higher court.Further, no appeal will remain valid after the expiry of three years from the date of conviction.
A noteworthy feature of this act is the introduction of the directorate of prosecution in each district. This will help in ensuring speedy justice by ensuring fairness and impartiality in the locality.
BHARATIYA SAKSYA ADHINIYAM
The significant use of technology in today's world has fueled the misuse of it at a larger scale. Previously, under Cr.P.C, the admissibility of electronic evidence in the court was of very less importance. The court only believed on the traditional paper evidence. However, with the passage of time, the new act came up with the inclusion of electronic evidence such as email, phone recordings etc; to bring in effective justice. Special provisions regarding the admissibility of DNA evidence and acceptance of experts' advice as evidence depicts a true picture of change in the legal framework of India.
CHALLENGES WITH THE NEW LAWS
The new criminal law is one step towards modern legal development of the nation. However, there are certain loopholes that cannot be ignored. First, replacement of the law of sedition with the national section has made it even more ambiguous that may lead to potential misuse of it. Second, the gender neutrality aspect in section 63 of BNS which talks about rape has been completely ignored under the new law. It says “when a man commits a rape with a women”. It doesn’t includes the rapes with man, transgender etc. Third, the BNS has provided the punishment for killing the animals but is silent on the harassment that is happening with the animals. Fourth, new criminal laws have given more powers in the hands of the bureaucrats which can lead to potential misuse of power. For instance, the BNSS has increased the police custody from 15 days to 60 days and can extend to 90 days depending on the severity of the offence. This might have some negative consequences, since, the report of the Ministry of Home Affairs says that there has been an increase in custodial death to 75%. Sixth, the definition of terrorism in BNSS is exactly the mirror reflection of the definition in UAPA. This creates an ambiguity, where the police officer can charge a person under UAPA and BNSS. Finally, critics argue that most of the things have remained the same. There were very few changes that were incorporated in the new act.
CONCLUSION
The modernization in the new laws symbolizes not just a legal transformation but a commitment of establishing a well driven criminal justice system which is consistent with the society’s needs. The motto behind this is to bring an equitable, accessible and evolved legal framework for the people of India. Therefore, small steps have to be taken to bring a big change.
REFERENCES
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