Lok Sabha to Debate Crucial Criminal Law Reforms Amidst Parliamentary Turbulence, Everything You Need to Know

The Bharatiya Nyaya (Second) Sanhita, Bharatiya Nagarik Suraksha (Second) Sanhita, and the Bharatiya Sakshya Bill. These bills represent a sweeping initiative aimed at the repeal and substitution of the archaic legal frameworks.

Srajan Girdonia
New Update

Amidst a flurry of legislative deliberations, the Lok Sabha currently stands poised to address a series of pivotal reforms in the realm of criminal laws. At the heart of this legislative agenda are three consequential bills: the Bharatiya Nyaya (Second) Sanhita, Bharatiya Nagarik Suraksha (Second) Sanhita, and the Bharatiya Sakshya Bill. These bills represent a sweeping initiative aimed at the repeal and substitution of the archaic legal frameworks enshrined in the Indian Penal Code 1860, Code of Criminal Procedure 1973, and the Indian Evidence Act 1872.

Introduced during the Monsoon Session by Home Minister Amit Shah, these bills have traversed a contentious path, initially encountering scrutiny and evaluation by a Parliamentary Standing Committee. Following this review, the bills underwent a process of withdrawal and subsequent re-introduction during the ongoing session, with Home Minister Amit Shah emphasizing that the alterations predominantly revolve around grammatical refinements and incorporate select suggestions offered by the Committee.

However, the parliamentary landscape has not only been characterized by these crucial legislative deliberations but also by a wave of suspensions, notably impacting opposition members within the Lok Sabha. The suspension of 49 MPs from the INDIA bloc, alongside numerous other Lok Sabha and Rajya Sabha members from the opposition, underscores a backdrop of heightened tension and controversy within the parliamentary arena. 

This landscape of reform and discord sets the stage for an intricate and consequential period in the country's legislative history.

Bharatiya Nyaya (Second) Sanhita Bill, 2023 to Replace Indian Penal Code, 1860

The Bharatiya Nyaya (Second) Sanhita Bill, 2023, stands as a comprehensive overhaul of criminal law. Its pivotal amendments encompass a broad spectrum of aspects, primarily refining definitions, intensifying penalties for certain crimes, and refining legal terms for better clarity and applicability.

Definition of Terrorism

The IPC, historically, provided a broader and more generalized definition of offences related to acts that could be deemed as threatening public order, safety, or national interests. However, its definition of terrorism lacked the detailed and precise contours necessary to address contemporary threats comprehensively. It didn't specifically outline the nuanced aspects of terrorism in the modern context, leading to potential ambiguity in its application.

The revised Bill under Section 113 adopts a more stringent and detailed definition of terrorism as outlined in the UAPA. This shift is pivotal as it brings in sharper contours to what constitutes a terrorist act. It narrows down the definition to acts that directly threaten the integrity, security, and sovereignty of India, or aim to instil terror among the populace. Additionally, it broadens the scope to include activities involving counterfeit currency or materials, amplifying the law's effectiveness against financial subversion, a critical aspect of modern-day threats.

Why UAPA is Considered Draconian

The Unlawful Activities (Prevention) Act, 1967 (UAPA) has been labelled as draconian due to several reasons:

Broad and Ambiguous Definitions

The UAPA's definitions often encompass a wide array of activities, and its vagueness could lead to misinterpretation and misuse. The expansive scope of what constitutes a "terrorist act" or "unlawful activity" lacks specificity, potentially enabling authorities to use it against a range of dissenting voices or political opponents.

Stringent Provisions

The UAPA grants extensive powers to law enforcement agencies, including prolonged detention without bail and wide discretion in designating organizations or individuals as 'terrorists.' These provisions, while intended for national security, have raised concerns about their potential misuse, especially in curbing dissent and stifling political opposition.

Limited Safeguards

The Act offers limited safeguards for individuals accused under its provisions. Provisions related to bail, judicial oversight, and the burden of proof often favour law enforcement agencies, potentially undermining the rights of the accused.

Cruelty Defined

The precise definition of 'cruelty' against women by their husbands or relatives within the Bharatiya Nyaya (Second) Sanhita Bill, 2023, represents a significant addition aimed at addressing and penalizing various forms of domestic abuse. This amendment is particularly crucial as it elucidates behaviours that cause immense harm, coercing individuals into suicidal tendencies, inflicting grave injury, or perpetrating harassment for unlawful property demands.

The IPC, through Section 498A, previously addressed cruelty against women by their husbands or relatives. This section highlighted acts of cruelty as a criminal offence, encompassing various forms of mental or physical abuse, harassment for dowry, or conduct that could lead to grave physical or mental harm to the woman.

However, while Section 498A broadly defined cruelty, it lacked the nuanced delineation of specific behaviours that could amount to cruelty, leading to potential ambiguities in its interpretation and enforcement.

The amendment in the revised Bill adds a more refined definition of 'cruelty.' It explicitly outlines behaviours that constitute cruelty against women, focusing on actions that compel suicide, pose grave injury or danger to life, limb, or mental/physical health, and involve harassment for illegal property demands.

This amendment mirrors certain aspects of existing provisions, including Section 498A of the IPC, in its essence. However, the crucial difference lies in the explicit articulation and delineation of specific acts and behaviours that qualify as cruelty. By providing a clearer definition, the revised Bill seeks to enhance the legal framework's precision and applicability in addressing instances of domestic abuse and cruelty against women.

Unauthorised Publication of Court Proceedings

The dissemination of court proceedings, especially those concerning rape or sexual assault cases, can pose severe implications for the individuals involved. Public disclosure can not only infringe upon their privacy but also potentially subject them to social stigma, trauma, and emotional distress.

Section 73 expressly prohibits the unauthorized dissemination of court proceedings related to rape or sexual assault cases. This provision acts as a safeguard against the unauthorized publication, printing, or dissemination of any matter concerning these sensitive legal proceedings.

The primary aim behind this provision is to ensure the preservation of the privacy, dignity, and confidentiality of the individuals involved—victims, witnesses, and accused—in such sensitive cases. By mandating official authorization for any dissemination of information regarding these proceedings, the law seeks to prevent unnecessary exposure and protect the identities and personal details of those involved.

While legal proceedings typically adhere to principles of transparency, the inclusion of this safeguard acknowledges the delicate balance required between transparency and protecting the rights and well-being of individuals involved in sensitive cases. It doesn't impede the public's right to information but ensures that dissemination occurs under the purview of official authorization, maintaining a balance between transparency and privacy concerns.

Furthermore, the provision explicitly specifies that reports on High Court or Supreme Court judgments related to these cases would not fall under the scope of unauthorized dissemination. This exclusion ensures that legitimate reporting on judicial decisions remains unaffected, safeguarding the public's access to legal information while maintaining privacy during ongoing proceedings.

Mental Illness Terminology Changed

The replacement of 'mental illness' with 'unsoundness of mind' aims to eliminate potential ambiguity in legal terminology. 'Unsoundness of mind' tends to have a more defined scope, typically referring to conditions impacting cognitive or mental faculties. This substitution seeks to offer a more precise and legally recognizable term, enhancing the clarity and interpretative consistency of the law.

The incorporation of 'intellectual disability' reflects an endeavour towards inclusive language within legal frameworks. This term encapsulates conditions associated with cognitive impairments and acknowledges a broader spectrum of mental capabilities and challenges, ensuring a more encompassing approach to legal definitions.

Enhancing the Punishment for Mob Lynching

Over the past few years, India has witnessed a disturbing surge in incidents of mob lynching, wherein groups of individuals have engaged in violent acts resulting in severe injury or death of the victims. These incidents have occurred on various pretexts, including rumours of child abduction, cattle theft, religious beliefs, or other communal tensions, often fueled by misinformation or prejudice.

Previously, the discrepancy in sentencing between mob lynching and murder within the legal system raised concerns regarding the gravity with which these cases were treated. The lower minimum sentencing for mob lynching in comparison to murder might have undermined the severity of the crime, potentially contributing to impunity and insufficient deterrence against such acts of collective violence.

The amendment in the Bharatiya Nyaya (Second) Sanhita Bill, 2023, holds profound implications in addressing this discrepancy. By equating the penalty for mob lynching with that of murder, the law seeks to rectify the previous disparity, emphasizing the seriousness of mob violence. 

This alignment underscores the gravity of mob lynching incidents, highlighting that these acts are as severe as murder, thereby ensuring a more appropriate punishment that corresponds to the severity of the offence.

Rejection of Certain Recommendations

The Bharatiya Nyaya (Second) Sanhita Bill, 2023, notably sidesteps specific recommendations to criminalize adultery in a gender-neutral manner, thus maintaining the existing legal framework. This decision retains the status quo where adultery laws are not applied in a gender-neutral fashion, preserving the traditional understanding that primarily criminalized men for engaging in extramarital affairs. 

Despite recommendations to revise these laws to ensure equal treatment irrespective of gender, the revised Bill maintains the historical perspective that often differentiated between men and women in cases of adultery. This stance, though contentious, aligns with the historical legal interpretation of adultery and reflects the ongoing debate regarding gender-specific legal provisions in various jurisdictions.

Similarly, the revised Bill refrains from extending provisions concerning non-consensual sex between various genders and acts of bestiality, aligning its stance with previous judicial rulings. Judicial precedents, notably the landmark verdict in the case of Navtej Singh Johar v. Union of India (2018), decriminalized consensual same-sex relations between adults, bringing about a significant shift in societal and legal perceptions. 

However, the revised Bill does not extend its scope to cover acts of non-consensual sex or other forms of sexual conduct beyond the parameters set by these judicial rulings. This decision follows the legal precedent established by the courts and refrains from expanding the scope of criminal provisions beyond the delineations made in these pivotal judicial decisions.

Refinement in Defining Petty Organized Crime

The revision introduces a more explicit and refined definition of 'petty organised crime,' narrowing down the scope to specific criminal activities committed by organised groups or gangs. This clarity prevents ambiguity and provides a more focused approach to combatting organized criminal endeavours.

The Bharatiya Nyaya (Second) Sanhita Bill, 2023, embodies a meticulous overhaul of criminal law to address ambiguities, refine definitions, and align penalties with the gravity of offences, reinforcing the nation's legal framework.

Bharatiya Nagarik Suraksha (Second) Sanhita, 2023

Section 23 introduces 'community service' as a form of punishment for minor offences. This provision allows courts to impose community service, benefiting society without remuneration, thereby encouraging a restorative approach for less severe criminal acts.

Use of Handcuffs

An amendment under Section 43(3) expands the police's authority to use handcuffs beyond the arrest stage, extending it to the production of the accused before the court. 

This expansion, however, raises concerns as it enlarges the scope of handcuff usage, potentially impacting individuals accused of various offences.

Proceedings via Audio-Visual Means

The revised bill outlines the conduct of court proceedings through audio-visual means. However, certain proceedings initially proposed have been omitted, while others—such as the reading of charges to the accused, hearings on discharge, witness examination, and evidence recording—have been introduced. 

This inclusion ensures flexibility and efficiency in court procedures, adapting to technological advancements.

Police Custody Beyond Initial 15 Days

Section 187(3) overlooks concerns raised regarding extending police custody beyond the initial 15-day arrest period. This clause lacks specificity, potentially allowing for aggregated shorter periods of custody throughout the investigation, possibly impacting individuals from marginalized backgrounds disproportionately. Critics highlight the risk of police excesses and coerced evidence under prolonged detention, advocating for clearer safeguards.

Section 172 permits police detention for non-compliance with police directives to prevent offences. The amendment mandates a stricter timeline, ensuring the prompt production of the detained individual before a Magistrate or release within 24 hours for minor cases. 

This revision aims to prevent potential abuse of power by law enforcement agencies.

Bharatiya Sakshya (Second) Bill, 2023

Section 61 addresses the admissibility of electronic evidence, stipulating that its validity is subject to Section 63. This revision aligns the admissibility of electronic records with prescribed legal requirements, emphasizing the need for proper certification.

The Bottom Line

It appears highly probable that the government will introduce the three groundbreaking bills during this ongoing session in the House. With the significant majority held by the ruling party, the passage of these bills might seem straightforward. However, the current suspension of a considerable portion of the opposition, nearly two-thirds, raises pertinent questions about the prudence of introducing such pivotal legislation.

The Narendra Modi-led government has shown a historical propensity to introduce and pass legislation swiftly, often with minimal deliberation. Yet, amid the potential introduction of laws that are poised to drastically reshape the nation's criminal law landscape, a crucial contemplation arises. Should such transformative laws be ushered in without extensive discussions and input, especially considering their far-reaching implications?

As these legislative changes loom, they prompt reflection among the people of India about the procedural integrity and depth of consideration inherent in the lawmaking process. The manner in which these monumental changes are ushered in is poised to impact the fabric of the country's legal framework, calling for a conscientious evaluation of the approaches to shaping the nation's laws.