Landmark Legislation: Parliament Approves Three Key Bills in 2023

In a recent parliamentary session, three crucial bills—Bharatiya Nyaya (Second) Sanhita, 2023; Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and Bharatiya Sakshya (Second) Bill, 2023—secured approval. After their introduction in August 2023, these bills underwent thorough examination by a 31-member Parliamentary Standing Committee.

key provisions of the Bharatiya Nyaya Sanhita (Second) 2023

The BNS2, replacing the Indian Penal Code, 1860, brings about substantial changes, incorporating:

Retention and Incorporation of Offences

Under BNS2, the prevailing IPC provisions concerning murder, assault, and causing harm are upheld, alongside the inclusion of novel offenses such as organized crime, terrorism, and group-related grievous harm or murder. Additionally, community service is introduced as a potential form of punishment.

Terrorism

BNS2 defines terrorism as acts threatening the nation’s integrity or causing terror among the populace (Population). Penalties for such acts range from death or life imprisonment to imprisonment with fines.

Organized Crime

This section encompasses offences like kidnapping, extortion, financial scams, and cybercrime. Punishments for those committing or attempting organized crime vary from life imprisonment to death, accompanied by fines.

Mob Lynching

BNS2 identifies murder or severe injury by five or more individuals on specific grounds (race, caste, etc.) as a punishable offense. Penalties for mob lynching include life imprisonment or the death penalty.

Sexual Offences Against Women

While retaining IPC sections on rape and voyeurism, BNS2 raises the age threshold for gangrape victims from 16 to 18 years. It also criminalizes deceptive sexual acts or false promises.

Sedition

BNS2 eliminates the offence of sedition, replacing it with penalties for activities related to secession, armed rebellion, or actions endangering national sovereignty or unity through various means. Critics express concerns over the essence and application of this revised law.

Death by Negligence

The BNSS enhances the punishment for causing death by negligence from two to five years under Section 304A of the IPC. However, it specifies that doctors, if convicted, will still face the lower punishment of two years imprisonment.

Supreme Court Compliance

BNS2 aligns with certain Supreme Court decisions by excluding adultery as an offense. It introduces life imprisonment alongside the death penalty for murder or attempted murder by a life convict.

Critiques of BNS2

Criminal Responsibility Age Discrepancy

The BNS2 maintains the age of criminal responsibility at seven years, potentially extending it to 12 based on the accused’s maturity. This raises concerns as it may diverge from international convention recommendations.

Inconsistencies in Child Offence Definitions

Despite defining a child as someone below 18, the BNS2 exhibits inconsistencies in age thresholds for various offences against children. Notably, variations in the age requirements for offenses like rape and gangrape introduce ambiguity and inconsistency.

Sedition Provisions and Sovereignty Concerns

Although the BNS2 eliminates sedition as an offence, there are apprehensions that elements related to endangering India’s sovereignty, unity, and integrity might still retain aspects of sedition. This raises concerns about the potential impact on free expression.

Continuation of IPC Regulations Pertaining to Rape and Sexual Harassment

The BNS2 maintains the provisions of the IPC regarding rape and sexual harassment, neglecting recommendations from the Justice Verma Committee (2013). Notably, it does not address key suggestions such as making the offense of rape gender-neutral and recognizing marital rape as an offense, indicating a deviation from comprehensive reform

Bharatiya Nagarik Suraksha (Second) Sanhita, 2023

Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 replacing CrPC

Key Reforms Introduced by Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2)

Detention Conditions Overhaul

The BNSS2 introduces modifications to undertrial rules, placing restrictions on personal bond release for severe offences, such as life imprisonment cases and those with multiple charges.

Widened Scope of Medical Examination

This section of the BNSS2 broadens the accessibility of medical examinations by empowering any police officer, not limited to sub-inspectors, to request them.

Emphasis on Forensic Investigation

The BNSS2 mandates forensic investigation for crimes with a minimum punishment of seven years’ imprisonment. It requires forensic experts to electronically record the evidence collection process, with provisions for states lacking forensic facilities to collaborate with others.

Expanded Powers for Sample Collection

This section extends the authority to collect finger impressions and voice samples, even from individuals not under arrest, surpassing the CrPC’s provisions for specimen signatures or handwriting orders.

Introduction of Strict Timelines

The BNSS2 establishes stringent timelines, including medical reports for rape victims within 7 days, judgments within 30 days (extendable to 45), victim progress updates within 90 days, and charge framing within 60 days from the first hearing.

Court Hierarchy

Unlike the CrPC, which organizes criminal courts hierarchically, the BNSS2 eliminates the distinction and role of Metropolitan Magistrates previously applicable to cities with over a million people.

Critique of BNSS2: Examining Concerns and Controversies

Property Seizure from Crime Proceeds and Oversight Deficiency:

The authority to confiscate property derived from criminal activities in the BNSS2 lacks the safeguards present in the Prevention of Money Laundering Act, sparking apprehensions regarding potential misuse and a lack of adequate oversight.

Bail Restrictions for Multiple Charges

In contrast to the CrPC, which permits bail for individuals detained for half the maximum imprisonment for an offense, the BNSS2 denies this provision for those facing multiple charges. This limitation, particularly in cases involving multiple sections, may constrain opportunities for securing bail.

Handcuff Usage and Conflicting Supreme Court Guidelines

The BNSS2 sanctions the use of handcuffs in various situations, including organized crime, conflicting with directives established by the Supreme Court. This raises concerns about consistency in legal provisions and their alignment with judicial guidelines.

Integration of Trial Procedure and Public Order Maintenance

The BNSS2 retains CrPC provisions related to the maintenance of public order, prompting questions about whether trial procedures and public order maintenance should be governed by the same legislation or addressed as distinct legal matters.

The Bharatiya Sakshya (Second) Bill, 2023 (BSB2)

The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) replaces the Indian Evidence Act, 1872 (IEA) and maintains several provisions from its predecessor, such as those related to confessions, relevancy of facts, and burden of proof. Noteworthy modifications include:

Documentary Evidence

Expanded Definition: BSB2 broadens the definition of documents, now encompassing electronic records in addition to traditional writings, maps, and caricatures.

Primary and Secondary Evidence: Primary evidence maintains its status, covering original documents, electronic records, and video recordings. Meanwhile, oral and written admissions, along with the testimony of a qualified individual examining the documents, are now classified as secondary evidence.

Oral Evidence

Electronic Provision: BSB2 allows the electronic provision of oral evidence, enabling witnesses, accused individuals, and victims to testify through electronic means.

Admissibility of Electronic Records

Equivalent Legal Status: Electronic or digital records, including information stored in semiconductor memory, smartphones, laptops, emails, server logs, locational evidence, and voicemails, are granted equivalent legal status as paper records.

Amended Explanation to Joint Trials

Revised Categorization: Joint trials now include cases where one accused is absent or has not responded to an arrest warrant, leading to a redefined categorization of joint trials.

Critique of BSB2: Examining Key Concerns and Oversight Gaps

Admissibility of Information from Accused in Custody:

BSB2 permits the admissibility of information obtained from the accused while in police custody, creating a distinction from information obtained when the accused is outside custody. The Law Commission had recommended eliminating this distinction, emphasizing the need for a uniform approach.

Unaddressed Law Commission Recommendations:

Despite their significance, several crucial recommendations from the Law Commission have not been incorporated into the BSB2. Notably, proposals such as presuming police responsibility for injuries sustained by an accused in police custody have been omitted, raising questions about the comprehensive implementation of suggested reforms.

Concerns Regarding Tampering of Electronic Records:

Recognizing the potential for tampering, the Supreme Court has acknowledged the vulnerability of electronic records. Although the BSB2 allows for the admissibility of such records, it lacks safeguards to prevent tampering and contamination during the investigative process. This omission raises concerns about the integrity and reliability of electronic evidence presented in legal proceedings.

conclusion

In conclusion, the legislative landscape of 2023 witnessed the approval of three pivotal bills in the Indian Parliament: Bharatiya Nyaya (Second) Sanhita, 2023; Bharatiya Nagarik Suraksha (Second) Sanhita, 2023; and Bharatiya Sakshya (Second) Bill, 2023. These landmark pieces of legislation aimed at overhauling and modernizing the legal framework governing the Indian criminal justice system, evidence procedures, and related matters.

The Bharatiya Nyaya Sanhita (Second) 2023 (BNS2) ushered in substantial changes, preserving established provisions while introducing novel offenses such as organized crime, terrorism, and group-related grievous harm. However, critiques surfaced, questioning the age of criminal responsibility, inconsistencies in child offense definitions, and concerns about potential implications on free expression despite the elimination of the offense of sedition.

The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) brought about key reforms in detention conditions, medical examination procedures, forensic investigations, sample collection, and court hierarchy. Despite these positive changes, criticism focused on property seizure oversight, restrictions on bail for multiple charges, conflicting Supreme Court guidelines on handcuff usage, and the integration of trial procedures with public order maintenance.

The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) replaced the Indian Evidence Act, 1872, and introduced advancements in the admissibility of documentary and electronic evidence. However, concerns were raised about the admissibility of information from accused individuals in custody, unaddressed Law Commission recommendations, and the potential for tampering of electronic records during investigations.

In this dynamic legislative environment, these bills reflect the ongoing efforts to adapt legal frameworks to contemporary challenges. While they bring about significant reforms, the critiques highlight the importance of careful consideration, ongoing evaluation, and responsiveness to ensure that the legal system remains just, fair, and in line with constitutional principles. The true impact and effectiveness of these legislative changes will become clearer as they are implemented and tested in practice.

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