Why the Hurry? (GS Paper 2, Governance)
Context
- As we approach the implementation of new criminal laws on July 1, there is significant concern about the administration of justice.
- While some changes are beneficial, the expansion of police powers and potential erosion of civil liberties raise alarm.
- Additionally, the readiness of institutions to implement these changes is questionable.
Overview of New Laws
- The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) will replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act (IEA), respectively.
- Despite being presented as decolonization efforts, 75% of existing provisions remain unchanged, indicating a superficial legislative shift without addressing colonial institutional legacies.
Crucial Changes Introduced in BSA, 2023
- Precise Definition of “Document”: Includes electronic and digital records such as emails, server logs, messages, and voicemail messages stored on digital devices.
- Clarity with Respect to Primary (Electronic) Evidence: Recognizes each stored recording as primary evidence, aiding in cybercrime investigations.
- Synchronization with IT Act, 2000: Incorporates terms like ‘semiconductor memory’ and ‘any communication device’ for better visibility.
Main Features of the Bhartiya Nagrik Suraksha Sanhita Bill, 2023
- Use of Technology: Promotes video-conferencing for trials and appeals and mandates video-recording of statements from survivors of sexual violence.
- Police Accountability: Requires police to inform the status of a complaint within 90 days and mandates DSP approval for arrests in certain cases.
- Victim Consultation: Ensures police consult the victim before withdrawing cases punishable by seven years or more.
- Trials In-Absentia: Allows absconding criminals to be tried and sentenced in their absence.
- Electronic Records: Empowers magistrates to take cognizance of offenses based on electronic records.
Concerns with Police Powers
- The new provisions grant excessive powers to the police, such as extending custody durations significantly under Section 187 of the BNSS.
- Unlike the CrPC, which limits police custody to 15 days, the BNSS removes these restrictions, posing threats similar to those of past stringent laws like UAPA and POTA.
Civil Liberties at Risk
- Vague definitions of offenses, such as “false and misleading information” and acts “endangering sovereignty,” pose significant risks to civil liberties.
- These provisions open the door to potential abuse, particularly against dissent.
Trials In-Absentia
- The BNSS permits trials in-absentia, undermining the accused’s right to defense.
- This shift from the CrPC, which allowed only for evidence recording in the absence of the accused, marks a concerning departure from fair trial standards.
Questions of Repeal and Implementation
- The retention of many existing laws raises questions about the necessity of repealing the old codes.
- Ambiguities in transitional provisions could lead to confusion in ongoing cases, particularly regarding the applicability of old versus new laws.
Institutional Preparedness
- The lack of thorough assessment of institutional readiness across police, courts, and prisons is alarming.
- Without comprehensive training and evaluation, implementing these laws poses significant risks to liberty and justice.
- A delay in enforcement until adequate preparation is essential.
Key Highlights of the Proposed Changes in BNS
- Adultery and Gender-Neutral Provision: A gender-neutral provision criminalizing adultery, following the Supreme Court's 2018 declaration of Section 497 IPC as unconstitutional.
- Non-Consensual Sex and Bestiality: Criminalizes non-consensual sex between any persons and acts of bestiality.
- Definition of Terms: Better definitions for terms like “community service” and “life imprisonment.”
- Positive Changes: Removal of Section 124A (Sedition) and provisions for prosecuting offenses committed in foreign countries.
Conclusion
- While the intent to reform is clear, the execution raises serious concerns about civil liberties, police powers, and institutional capacity.
- An independent audit of preparedness is critical before moving forward with these legislative changes.
- Ensuring the readiness of institutions and safeguarding civil liberties should be prioritized to achieve meaningful and effective criminal justice reform.
