There has been a raging debate on the need to bring new criminal laws into the country. The Madras High Court has wondered what prompted the government to repeal the erstwhile criminal laws when changes could have been incorporated by way of amendments.
Bharatiya Nyaya Sanhita (BNS); Bharatiya Nagrik Suraksha Sanhita (BNSS); and Bharatiya Sakshya Adhiniyam (BSA), replaced the IPC; the CrPC; and the Indian Evidence Act, respectively. The Sanhitas have come into force with effect from July 1. It is time to survey salient provisions of the Sanhitas and assess their impact on the criminal justice system.
The IPC had 511 sections. However, BNS has only 358 sections. 21 new crimes have been added to the BNS and 16 IPC crimes omitted. Besides, a large number of sections of the IPC have been modified in as much as the period of imprisonment has been increased in 41 crimes and fines enhanced in another 82 crimes. What stands out is the criminalisation of terrorism in the BNS whereas it was earlier criminalised by special Acts i.e. TADA, 1985; TADA, 1987; and POTA, 2002 which were allowed to lapse. This is against the legislative practice in India. As the BNS provisions and the Provisions of Unlawful Activities (Prevention) Act, 1967, hold the field on the same subject matter, interestingly, the discretion has been left to the Superintendent of Police to apply anyone of these laws in his jurisdiction.
Organised crime is an offence under Section 111. Section 112, however, distinguishes petty organised crime from such crime per se and provides relatively lenient punishment. The text of Maharashtra Control of Organised Crime Act, 1999, has been lifted and incorporated in this section. However, certain special features of MCOCA such as the interception of communications by senior police officers and the recording of confessional statements by designated police officers are missing in these sections. Besides, distinguishment of ‘organised crime’ from ‘petty organised crime’ is unique to BNS as such distinction does not exist anywhere else in the world.
Organised crime is organised crime, regardless of whether it is major or minor. This could have been avoided. Further, whether BNS will apply or the special Acts enacted by the states of Maharashtra, Gujarat and Karnataka will apply in these states remains an open question. In my view, it would have been much better if the central government had enacted comprehensive legislation for the suppression and control of organised crime on the pattern of MCOCA rather than adopting this half-hearted approach.
It is to be noted that section 152 criminalises endangering the sovereignty and integrity of India. There was no such provision in the IPC. The human rights groups have reacted unfavourably to this provision, though, in my opinion, not for good reasons.
Further, certain provisions of the IPC have been omitted in the BNS. For example, thuggee is no longer an offence. The same is the case with voluntarily causing inter-course against the law of nature (Sec 377). However, this omission creates a statutory vacuum in as much that if a person sodomises another person against his will, there is no law to punish him.
While the new provisions would deter criminals from committing heinous crimes affecting the peace and tranquillity of the country, it may be necessary to take a re-look at sections relating to organised crime and terrorism for the reasons mentioned above. However, the omission of certain obsolete provisions, which have lost their practical value, is a welcome step.
What more could have been done?
Firstly, the BNS declares some offences as ‘bailable’ and others as ‘non-bailable’. Some minor non-bailable offences could have been identified and declared bailable. Secondly, certain minor offences could have been identified to be made punishable only with a fine and no jail term. This would have expedited the trial process and reduced the burden on the courts. Thirdly, plea bargaining is not permissible with respect to offences which affect the socio-economic condition of the country. The economic crimes, including violations of the Prevention of Corruption Act, are committed for illegal monetary gain. Such offences could have been made amenable to the plea bargaining process if the accused was willing to pay a fine amounting to three or four times the illegal monetary gain reaped by him.
In my opinion, the BNSS is a huge improvement over CrPC as it incorporates many citizen-centric provisions and has provisions which would facilitate and expedite investigations and trials. For example, citizens’ right to have the FIR registered electronically (e-FIR), irrespective of the area where the offence is committed. But here again, section 173(3) of BNSS gives liberty to the SHO to cause an enquiry before registering the FIR relating to offences punishable with imprisonment from 3-7 years. This would cause delays in the registration of FIRs and would be open to misuse by the police for extraneous reasons.
Section 356 of BNSS is the most remarkable provision as it permits in absentia trial of proclaimed offenders. Such provision exists in countries like the USA and France etc. The trial court has been authorised not only to conduct trials in the absence of pro-claimed offenders but also to pronounce judgments meaning thereby that they would straight away be sent to jail on their arrest. This would control crime situations and also disincentivise avoidance of the trial process.
The government may also like to focus on challenges posed in implementing some of the provisions that mandate the use of modern technology in investigation and trial. For example, the forensic science infrastructure in the country is presently inadequate to comply with the provisions. The central and the state governments need to urgently focus on enhancing and upgrading the infrastructure as the BNSS and the BSA mandate the use of modern technology at the investigation and trial stage.
Admission of digital evidence at the investigation and trial stage can prove to be a game changer as digital evidence is easier to collect and equally easier to transmit. Besides, such evidence has higher transparency and procedural integrity. However, there is a need to examine the impact of diluting the accomplice evidence since corroboration may not be possible sometimes.
As we implement the new laws, I am reminded of the speech made by Chief Justice D.Y. Chandrachud in his 20th DP Kohli Memorial Lecture on April 1. “The new criminal laws enacted by Parliament encompass substantive crime, procedure and evidence. These laws aim at digitising various aspects of criminal procedure. This is a significant step towards modernising the justice system.”
The new enactments should not be seen from the political prism and should be looked at from the perspective of whether they would benefit law-abiding citizens. I would think, they do.
M.L. Sharma IPS (Retd) is the former special director, CBI & former Central Information Commissioner
The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of THE WEEK
