By - King Stubb & Kasiva on August 21, 2023
The Indian criminal legal system is a gift of the colonial regime wherein the majority of the provisions of the Indian Penal Code which carries the substantive part of penal laws in the country along with the Code of Criminal Procedure and Indian Evidence Act which regulate its procedural aspect were enacted by the erstwhile British government in order to cater to the needs of law and order of their time.
However, there has been a significant evolution in terms of the needs and demands of the society at large since independence from the colonial empire along with the evolution of new forms of crimes across the country, leading to the majority of the provisions of these laws becoming obsolete or getting redundant in terms of the procedure involving the trial of such offences.
Keeping in mind the changing needs of the country at large along with the aim to break the shackles of India’s colonial past, the Union Home Minister has introduced the following bills in the Lok Sabha:
The new changes in the major legislations stating the acts or omissions giving rise to criminal liability along with the procedure of trials and the standards for evidence have led to a significant overhaul in the process of the criminal justice system of India.
Firstly, in the Bhartiya Nyaya Sanhita Bill 2023, various new definitions such as terrorism, separatism, armed rebellion against the country and challenging the sovereignty of the country have been provided which were earlier either absent or not consolidated or defined in a single place. Moreover, Sedition, which was one of the most controversial offences in the Indian Penal Code, 1860 has been repealed, giving way to freedom of speech and expression and eradicating the colonial aspect of penal provisions in India.
The punishment clause for various offences has also been updated, leading to an overhaul in numerous provisions. For instance, capital punishment has been introduced for the offence of mob lynching, which was earlier absent, leading to the display of the government’s strong stance against such crimes. A proposal of 10 years of imprisonment for the offence of sexual intercourse with a woman on false promise of marriage has also been added in order to uphold the dignity of females and prevent and prohibit sexual exploitation.
The time period for filing charge sheets in courts by law enforcement agencies has also been added wherein 180 days limit has been stipulated as a maximum limit. Lastly, community service as a form of punishment, which was earlier absent in the Indian context has also been introduced.
Since this law is proposed to govern the procedural aspect of criminal trials in the country, there have been a number of significant changes that have distinguished it from its predecessor Code of Criminal Procedure, 1973.
Firstly, an increased emphasis has been laid on the usage of technology in the form of e – filing, video conferencing and video recording. Through the use of technology in the form of mandating the video recording of the statements of survivors of sexual violence, the bill has taken positive steps toward maintaining the sanctity of the judicial system.
Secondly, the magistrates at all levels have been empowered to take cognizance of various offences on the basis of evidence in electronic forms such as WhatsApp chats, emails etc. Moreover, the provisions of trial in absentia along with sentencing have also been added for absconding criminals.
Lastly, a mandatory provision has been added for the police to consult with the victims of the offences involving punishment of 7 years or more before withdrawing the case.
The Bharatiya Sakshya Bill 2023, which has been proposed to replace the Indian Evidence Act has granted sanctity and recognition to the evidence obtained in the electronic mode holistically along with defining the scope of electronic evidence.
One of the fundamental changes that have been brought out by the bill is the recognition of expert opinion as a form of evidence along with the presumption of innocence as a fundamental principle.
Lastly, the bill has also laid down specific criteria for admitting electronic evidence based on various factors which would also enable the prevention of the misuse of evidence unlawfully.
The present legal system, which was given by the British regime to India is undoubtedly a great piece of legislation that stood the test of time. However, there are various provisions that needed change due to the efflux of time. The new triangle of laws governing the criminal legal framework of the country has substantially catered to the need for such reforms.
However, initially, various precedents and interpretations would need a careful examination in the eyes of both the lawyers and the judges, but it would also lead to an enhanced and effective system of implementation of laws in the country.
With the onset of technological aid in the trials and evidence, it is also hoped that the judicial pendency which has reached an all-time high would also be reduced and shorten the time required for trial of offences in the country.
The Bills have introduced certain new sections. For example, in the Bharatiya Nyaya Sanhita Bill, terrorism has been defined, organised crimes have been added, and sedition has been repealed. 'Subversive activities' have been added and it needs to be defined.
The Bharatiya Nyaya Sanhita Bill, which will replace the IPC, will have 356 sections instead of the earlier 511 sections, 175 sections have been amended, 8 new sections have been added and 22 sections have been repealed.
Under Section-65B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an 'electronic record'.