The story so far: Union Home Minister Amit Shah on December 12 introduced three revised Bills in the Lok Sabha to replace the existing British-era criminal laws, after withdrawing the previous versions, introduced in August this year. The three Bills are set to replace the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872.
The IPC will be replaced by the Bharatiya Nyaya (Second) Sanhita Bill, 2023; the CrPC of 1973 will be replaced by the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 whereas the Indian Evidence Act of 1872 will be replaced by the Bharatiya Sakshya (Second) Bill, 2023.
Following their introduction in August, they were referred to a 31-member Parliamentary Standing Committee, headed by BJP MP Brij Lal for review. After consulting experts and stakeholders, the panel adopted its report on the Bills on November 7, with Opposition MPs pointing out several errors and recommending more than 50 changes. In their dissent notes, the Opposition MPs flagged the lack of diversity in the experts consulted, questioned the haste with which the new laws are being introduced, and highlighted that they are are ‘largely a copy-paste’ of the existing laws.
“Grammatical and language errors have been corrected. The Bills were examined at length by the Standing Committee and it was necessary to include the suggestions. There are no major changes. Had we continued with the old Bills, several official amendments would have had to be made, so we decided to introduce new Bills instead. Adequate time, 48 hours, has been given to members to study the Bills...We do not want to pass such important pieces of legislation in a hurry,” Mr. Shah said while introducing the revised Bills.
Here are the key highlights of the revised Bills.
Bharatiya Nyaya (Second) Sanhita Bill, 2023
UAPA’s definition of ‘terrorrist act’ adopted
Section 113 of the revised Bill has modified the definition of the crime of terrorism to entirely adopt the existing definition under Section 15 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The UAPA, often labeled as draconian, defines as a terrorist act any act ‘with intent to threaten or likely to threaten the unity, integrity, security economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.’
The earlier version of the Bill included within the ambit of a terrorist act, vague acts such as intimidating the general public or a segment thereof, disturbing public order, creating an atmosphere or spreading a message of fear; destabilising or destroying the political, economic, or social structures of the country, or creating a public emergency or undermining public safety. Accordingly, even a non-violent speech could be categorised as a terrorist act under this definition.
However, the new definition of a terrorist act differs from the UAPA’s definition in one respect — UAPA includes the production or smuggling or circulation only of high quality counterfeit Indian paper currency, coin or of any other material within the ambit of terrorism, whereas the revised Bill widens this definition to cover the same activities with respect to any counterfeit Indian paper currency, coin or of any other material.
Further, possessing property derived from or through a terrorist act is punishable only if it is held knowingly. Similarly, harbouring a terrorist is punishable if it is done both voluntarily and knowingly. The offence of recruiting and training persons to engage in terrorist acts has been introduced as well, mirroring sections 18A and 18B of the UAPA.
Notably, the Explanation to this section allows an officer not below the rank of Superintendent of Police to decide if the prosecution of a terrorist act should continue under the UAPA or section 113 of this Bill.
The offence is punishable with death or imprisonment for life. Those who conspire, abet, incite, or facilitate the commission of a terrorist act could face imprisonment ranging from five years to life.
Cruelty defined
Another addition to the revised Bill is that it proposes to define “cruelty” against a woman by her husband and his relatives, which is punishable with a jail term of up to three years. The newly inserted section 86 defines ‘cruelty’ as (a) wilful conduct likely to drive a woman to commit suicide or cause grave injury or danger to the life, limb, or health (whether mental or physical); or (b) harassment of a woman to coerce her or any person related to her to meet any unlawful demand for property or valuable security.
Although the offence has now been defined in a separate provision, Section 498A of the IPC as well as Section 84 in the original Bill defined cruelty using the same terms in their “explanation” clauses. Therefore, there is no new addition in effect in the revised Bill.
Unauthorised publication of court proceedings
The newly inserted section 73 stipulates that those who print or publish ‘any matter’ concerning court proceedings in rape or sexual assault cases without permission would be punished with a two-year jail sentence and a fine. The Explanation to this provision clarifies that reports on High Court or Supreme Court judgments would not amount to an offence within this provision.’
‘Mental illness’ replaced by ‘unsoundness of mind’
In an attempt to do away with regressive terminology, the earlier version of the Bill had replaced terms such as lunacy, mental retardation, and unsoundness of mind with ‘mental illness.’ However, the panel pointed out that the term ‘mental illness’ is too wide in its import and could even include mood swings and voluntary intoxication. As a result, the revised Bill replaces the term ‘mental illness’ with ‘unsoundness of mind’ in a majority of the provisions. It has also added the term ‘intellectual disability’ along with unsoundness of mind in section 367 (competence to stand trial).
Enhancement of minimum punishment for ‘mob lynching’
The original Bill made mob lynching and hate crime a separate category of murder for the first time. The offence dealt with cases where murder is committed by five or more persons acting in concert with one another, on grounds of race, caste or community, sex, place of birth, language, personal belief, or any other ground. However, it was criticised by the panel for prescribing a lesser minimum sentence of imprisonment of 7 years as opposed to the offence of murder, where the minimum sentence is imprisonment for life. Taking the critique into consideration, the revised Bill has removed the minimum punishment of seven years and now penalises mob lynching at par with murder.
Adultery and Section 377 - ignored recommendations
Two crucial recommendations of the panel to include a gender-neutral provision criminalising adultery, and a clause that criminalises non-consensual sex between men, women, transpersons, and acts of bestiality have been left out in the revised Bill. In 2018, a Constitution Bench of the Supreme Court unanimously decriminalised adultery for being discriminatory and infringing upon a woman’s autonomy. However, the panel reasoned that adultery should be criminalised in a gender-neutral manner since it is crucial to safeguard the sanctity of the institution of marriage.
In the landmark verdict Navtej Singh Johar v. Union of India (2018), the Supreme Court struck down Section 377 of the IPC to the extent that it criminsalised consensual same-sex relations between adults. However, the provision could continue to be invoked in cases of non-consensual carnal intercourse with adults, all acts of consensual carnal intercourse with minors, and acts of bestiality (sex with animals).
Referring to the non-inclusion of this provision in the new Bill, the panel pointed out, “Section 377 IPC can still be invoked when there is a nonconsensual sex/rape of a man by another man. A woman can also initiate proceedings against her husband for unnatural sex under Section 377 IPC. If, as per the Nyaya Sanhita, these acts are not offences, it means that the victims of sodomy, buggery, etc. will have no remedy available under it. So if a man is ‘raped’ by another man, what is his remedy?” Thus, this leaves men and transgender persons with no legal remedy against sexual offences.
‘Petty organised crime’ redefined
The earlier version of the Bill contained a vague definition of ‘petty organised crime’ which included all crimes that cause ‘general feelings of insecurity among citizens’ relating to thirteen specified acts and ‘other common forms of organised crime committed by organised criminal groups or gangs.’ The parliamentary panel’s report flagged that the definition was vague, poorly worded, and lacked the necessary procedural safeguards.
The revised Bill includes a more precise definition: ’Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime.’ The Explanation to this provision stipulates that theft would include trick theft, theft from vehicle, dwelling house, or business premises, cargo theft, pickpocketing, theft through card skimming, shoplifting, and theft of Automated Teller Machine.
Bharatiya Nagarik Suraksha (Second) Sanhita, 2023
Community service defined
The original Bill introduced the concept of ‘community service’ as a form of punishment for petty offences such as an attempt to commit suicide, public servants unlawfully engaged in trade, theft of property less than Rs 5,000, public intoxication, and defamation.
In line with the panel’s recommendations, this punishment has now been defined under Section 23 of the revised Bill. Community service is ‘work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.’ Moreover, a Magistrate of the First or Second Class has been specifically empowered to impose this punishment, to encourage a more reparative approach to minor crimes.
Handcuffing
Section 43(3) of the original Bill permitted the use of handcuffs to prevent the escape of individuals accused of serious offences and ensure the safety of police officers and staff during arrests. However, the panel recommended that this should be restricted to select heinous crimes like rape and murder instead of extending its usage to persons who have been accused of committing ‘economic offences.’ In another significant change, the power of the police to use handcuffs has been expanded beyond the time of arrest to include the stage of production before court as well.
Proceedings via audio-visual means
In line with rapid technological advancement, the original Bill permitted the conduct of court proceedings through audio-visual means. However, certain types of proceedings mentioned in the earlier draft have been deleted, including inquiries, trials before court of sessions, trials in summary cases, plea bargaining, and trials before High Courts.
On the other hand, provisions allowing the reading out of charge to the accused, hearing on discharge, examination of witnesses, and recording of evidence in audio-visual means have been introduced in the revised Bill in sections 251, 262, 266, and 308 respectively.
Police custody beyond the initial 15-days of arrest
The revised Bill has overlooked the concerns of the panel regarding a provision in the earlier version that allowed police custody beyond the initial fifteen days of arrest.
Section 187(3) of the Bill, which corresponds to Section 167 (2)(a) of the CrPC ,does not contain the phrase ‘otherwise than in the custody of the police’ — implying that the prescribed 15-day-period of police custody can now be an aggregate of shorter periods of custody sought over the entire period of investigation lasting 60 or 90 days (depending on the nature of the offence.)
Flagging that the provision could be misused since people, particularly those hailing from marginalised backgrounds, may be subjected to extreme custodial violence, the panel underscored that, “there is a concern that this clause could be vulnerable to misuse by authorities, as it does not explicitly clarify that the custody was not taken in the first fifteen days either due to the conduct of the accused or due to extraneous circumstances beyond the control of the investigating officer. The committee recommends that a suitable amendment may be brought to provide greater clarity in the interpretation of this clause.:
Notably, the precedent set by the Supreme Court in Central Bureau of Investigation v. Anupam J. Kulkarni (1992), limiting police custody to the first 15 days of arrest, has been recently referred to a larger bench for reconsideration while dismissing Tamil Nadu Minister V. Senthilbalaji’s plea against custody by the Enforcement Directorate. In Kulkarni, the top Court said that any further remand during investigation beyond the initial 15 days of arrest can only be in judicial custody.
Preventive detention powers
Section 172 of the original Bill allowed the police to detain persons who do not conform to any directions issued by the police to prevent the commission of a cognizable offence. However, an ambiguity in the provision permitted the preventive detention to continue until the person is produced before a Magistrate or ‘the occasion is past.’ The panel recommended that a strict timeline be specified to ensure that there is no abuse of power by the police. Accordingly, under the revised Bill, the detained person must now be produced before the Magistrate or released in petty cases within 24 hours.
Bharatiya Sakshya (Second) Bill, 2023
Admissability of electronic evidence
Section 61 of the original Bill allowed the admissibility of electronic evidence by underscoring that an electronic record shall have the same legal effect as a paper record. However, there was no requirement for a certificate under section 63 (corresponding to the requirement of a certificate under section 65B of the Indian Evidence Act). This provision has now been revised to state that the admissibility of an electronic record is subject to section 63.
Existing concerns
Experts have flagged that the three revised Bills present a missed opportunity to rectify extensive overcriminalisation and wider police powers that aggravate state control.
Pointing out that the provision of the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, which permits police custody beyond the initial 15 days of arrest endangers civil liberties, Dr. Anup Surendranath and Ms. Zeba Sikora highlight, “One particular aspect of the BNSS will have a significant impact on civil liberties but it has barely received any attention. The massive expansion of the possible duration of police custody in the BNSS strikes at the very heart of civil liberties protection. The BNSS expands the maximum limit of police custody under general criminal law from 15 days to either 60 days or 90 days (depending on the nature of the offence). Under our current law, police custody is limited to the first 15 days of arrest. The expansion under the proposed BNSS heightens the risk of exposure to police excesses. Given widely acknowledged concerns about the safety of arrested persons in police custody, and the heightened risk of coerced and fabricated evidence after prolonged detention, this provision of the BNSS is a shocking expansion of police powers.”
