Petition for Stay on the implementation of three new criminal laws
Context:
A petition was moved in the Supreme Court seeking a stay on the implementation of three new criminal laws: Bharatiya Nyaya Sanhita, 2023, Bharatiya Nagrik Suraksha Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023, set to take effect from July 1.
Relevance:
GS-02 (Polity)
Key highlights:
- The petition, urged the court to immediately constitute an expert committee to assess the viability of the new laws, which overhaul the criminal procedure and justice system.
- The plea highlighted that the laws were passed without detailed debate or effective discussion in Parliament, due to the suspension of a large number of Opposition Members of Parliament.
- The petition argued that the passage of the Bills was irregular, citing the suspension of 146 Opposition MPs and limited public participation in the legislative process.
- The petition referenced objections from the Tamil Nadu and West Bengal Chief Ministers to the Home Minister, criticizing the new laws for being ambiguous, anti-bail, and even inhumane in certain aspects, such as the revival of handcuffs during arrests and providing extensive powers to the police.
- Specific Concerns: The petition pointed out that the Bharatiya Nyaya Sanhita does not define important terms like “gang” and “mobile organised crime groups,” while the Bharatiya Nagarik Suraksha Sanhita allows for up to 15 days of police custody, which can be taken all at once or in a staggered manner. The Bharatiya Sakshya Adhiniyam classifies electronic records as primary evidence.
Proposed reforms:
- Bharatiya Nyaya (Second) Sanhita Bill (BNSS): Replaces the Indian Penal Code, 1860.
- Bharatiya Sakshya (Second) Bill (BSS): Replaces the Indian Evidence Act, 1872.
- Bharatiya Nagarik Suraksha (Second) Sanhita Bill (BNSSS): Replaces the Code of Criminal Procedure, 1898.
The Bharatiya Nyaya (Second) Sanhita, 2023 (BNS2):
- The Bharatiya Nyaya (Second) Sanhita, 2023 (BNS2) introduces several major provisions.
- It retains existing IPC provisions on murder, assault, and causing hurt, while incorporating new offenses such as organized crime, terrorism, and group-related grievous hurt or murder, and adds community service as a form of punishment.
- It defines terrorism as acts threatening national integrity or causing public terror, with penalties ranging from death or life imprisonment to imprisonment with fines.
- Organized crime offenses, including kidnapping, extortion, financial scams, and cybercrime, are punishable by life imprisonment to death, with fines for committing or attempting organized crime.
- Mob lynching is identified as murder or severe injury by five or more individuals on specific grounds (race, caste, etc.), carrying punishments of life imprisonment or the death penalty.
- The BNS2 retains IPC sections on rape, voyeurism, and other violations, raises the age threshold for gang rape victims from 16 to 18 years, and criminalizes deceptive sexual acts or false promises.
- The sedition offense is eliminated and replaced with penalizing secession, armed rebellion, or actions endangering national sovereignty or unity.
- The punishment for causing death by negligence is elevated from two to five years under Section 304A of the IPC, while convicted doctors face a lower punishment of two years imprisonment.
- Finally, the BNS2 aligns with Supreme Court decisions by excluding adultery as an offense and introduces life imprisonment alongside the death penalty for murder or attempted murder by a life convict.
The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2):
- The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 (BNSS2) replaces the Criminal Procedure Code, 1973 (CrPC) and introduces several significant alterations.
- Firstly, it changes the rules for undertrials by restricting release on personal bond for those accused in severe offenses, including life imprisonment cases and individuals facing multiple charges.
- Secondly, it broadens the scope of medical examinations, allowing any police officer (not just a sub-inspector) to request one, making the process more accessible.
- Thirdly, it mandates forensic investigations for crimes punishable by at least seven years‘ imprisonment and requires forensic experts to collect evidence at crime scenes, recording the process electronically.
- Fourthly, it extends the power to collect finger impressions and voice samples, even from individuals not under arrest.
- Fifthly, the BNSS2 introduces strict 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.
- Finally, it eliminates the distinction of Metropolitan Magistrates for cities with over a million people, reorganizing the court hierarchy established by the CrPC.
The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) :
- The Bharatiya Sakshya (Second) Bill, 2023 (BSB2) replaces the Indian Evidence Act, 1872 (IEA), retaining most provisions on confessions, relevancy of facts, and burden of proof, while introducing several significant alterations.
- Firstly, it broadens the definition of documents to include electronic records alongside traditional writings, maps, and caricatures.
- Secondly, primary evidence retains its status and includes original documents, electronic records, and video recordings, while oral and written admissions and testimony from qualified individuals examining documents are considered secondary evidence.
- Thirdly, the BSB2 permits the electronic provision of oral evidence, enabling witnesses, accused individuals, and victims to testify through electronic means.
- Fourthly, it grants electronic or digital records equivalent legal status as paper records, encompassing information stored in semiconductor memory, smartphones, laptops, emails, server logs, locational evidence, and voicemails.
- Fifthly, it includes an amended explanation to joint trials, categorizing cases where one accused is absent or has not responded to an arrest warrant as joint trials.
