In a move that marks a significant transition in India’s legal system, the three criminal laws passed in parliament last year came into effect on July 1, 2024. The Bharatiya Nyaya Sanhita (BNS) has replaced the Indian Penal Code, the Bharatiya Nagarik Suraksha Sanhita (BNSS) has come in place of the Criminal Procedure Code, and the Bharatiya Sakshya Adhiniyam (BSA) has replaced the Indian Evidence Act.
The three new laws mark an overhaul of the colonial-era code, adding an Indian soul to the criminal justice system. The new laws would focus on nyaya (justice) instead of danda (punishment), and there would be speedy trials and speedy justice instead of delay.
The three major colonial criminal acts have dominated the criminal justice system for over 150 years. Comprehensive reforms have been visualized by the Government of India, particularly from 2020 onwards, after three years of serious work. These reforms have just come into place from July 1, 2024.
Firstly, the reforms introduced the Indian idiom of ‘Bhartiyata’, which can be seen as justice-centric and victim-centric, with witness protection being prioritised for the first time. Some of these suggestions and recommendations have been pending with the Government of India for many years, but a comprehensive reform has been recently visualised and implemented.
The use of gender-neutral language is being introduced. As students and teachers of criminal law, we used to take for granted that ‘he’ means ‘she’, but the new reforms have introduced ‘he’, ‘she’, and ‘transgender’. This sends a signal that transgender, women have been taken care of, and the protection of women and children is an important priority in the reforms.
Positive language and phrases have been used, replacing outdated colonial terms like ‘unsound minds’ and ‘idiots’ with ‘mental health’ and ‘mentally ill persons’ based on the Mental Health Act.
Community service has been introduced as a form of rehabilitation for prisoners, particularly for petty offenses. This is an important milestone, as it aligns with the recommendations of Justice VR Krishna Iyer. In the future, this approach may also be extended to more serious offences.
Another notable feature is the decriminalisation of attempted suicide, which now includes treatment and rehabilitation.
If we look back at the Criminal Procedure Code 1973, one of the important objectives was speedy investigation and speedy trial, but we have not been able to achieve this even though the courts have tried to push and several reforms have been made. However, the BNSS (Bharatiya Nagarik Suraksha Sanhita) not only suggests a speedy investigation but also a speedy trial to be completed within a stipulated period. I think that’s a significant step, but of course, it requires more training to change the mindset of the lawyers and the judges. We have seen not only in criminal cases but in other cases as well, where there is a lot of pendency, and that is hindering justice in the criminal justice system.
Forensic science is being given a lot of emphasis, and we have seen over the last two years that the Government of India has particularly come out with the National Forensic Science Universities and propagated the use of forensic science. This is the right and opportune time for all lawyers, judges, law schools, and law colleges to adopt more scientific methods of forensic science, understand them, and develop them further. We need to strengthen all the agencies of the criminal justice administration, focusing on Forensic Science, and we need forensic science units at all levels.
It takes some time to rephrase our minds, and maybe 2-3 years but somewhere, the change has to start, and some beginning has to be made. I think the beginning has been made, and slowly we will understand, but it will take some time.
The intention behind this was to create a new criminal law, and I think that purpose has been achieved. However, it will require a lot of training, and over the last 3-6 months, several trainings have been conducted.
This is the right time to create a new mindset. There will be some flaws in the laws during the interpretation, which will arise before the courts, but they may be overcome.
Recently, the Government of India has also focused on capacity building for various stakeholders, including bar councils, law schools, the judiciary, police, probation officers, and forensic experts. However, there is a lack of concerted action by all the criminal justice agencies. If they come together to make a comprehensive effort, naturally, everybody will learn.
Since the new law has already been implemented, everybody will be eager to learn. When Section 89 of the Code of Civil Procedure (CPC) was introduced in 1999 and came into effect in 2002, introducing alternative dispute resolution, many people were sceptical and stated that it would not work. However, mediation and arbitration are now considered important aspects of the legal system.
Trust the people of India to adapt to the change, because I remember similar apprehensions were made by people at the highest level regarding digital payments. If we recall, UPI has now become a success story in India, and it has become a case study for several countries that now want to adopt a similar technology.
So, the technology is not the worrying part; the misinformation being spread about these laws is the issue. Apprehensions are understandable and can be addressed by the authorities concerned. Still, misinformation will be a huge challenge for the government, and it will have to take care of it.
This is the importance and significance of these laws, and the kind of radical changes they will bring about in India’s criminal justice system.
(The author is an advocate by profession)