Explained: The revised criminal law Bills

Revised versions of the three criminal Bills introduced earlier this year to much controversy rectify many inconsistencies and absorb the recommendations of the Parliamentary Committee on Home Affairs. Project 39A has sought to analyse the adequacy of the revision.

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ON August 11, 2023, the Union government tabled three new Bills in the Parliament to overhaul the criminal justice system of the country. The three Bills were: the Bharatiya Nyaya Sanhita Bill, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB), to replace the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 respectively.

Subsequently, the three Bills were referred to the Parliamentary Standing Committee on Home Affairs for review and recommendations. After three months of deliberation, the committee headed by Bharatiya Janata Party's member of Parliament Brijlal released three reports on the BNS, the BNSS and the BSB recommending changes, along with dissent notes by various panel members.

One of the major dissents of the opposition members of the committee was related to the naming of the three Bills in Hindi. They alleged that the vernacular title of the Bills violated Article 348 (language to be used in the Supreme Court and in the high courts and for Acts, Bills, etc.) of the Indian Constitution which states that the official language for the courts and Bills would be English. However, the parliamentary committee approved the Hindi titles of the three Bills.

Pursuant to the recommendations, the three Bills were withdrawn from the Parliament on December 12. Soon after, revised versions of the three Bills were introduced. The revised Bills are now referred to as the Bharatiya Nyaya (Second) Sanhita Bill, 2023 (BNS II), the Bharatiya Nagarik Suraksha (Second) Sanhita Bill, 2023 (BNSS II), and the Bharatiya Sakshya (Second) Bill, 2023 (BSB II).

The National Law University, Delhi's criminal justice research and legal aim programme Project 39A has published a report tracing the key changes, including recommendations and suggestions that have been accepted in the newer versions of the Bills.

Bharatiya Nyaya (Second) Sanhita Bill

Under the BNS II, key changes have been made for offences such as criminal conspiracy, mob lynching, death by negligence, organised crimes and terrorist acts. Some significant changes have also been made in sentencing.

Different phrases used for defining life imprisonment

Under the BNS, life imprisonment was defined as "imprisonment for life, that is to say, imprisonment for the remainder of a person's natural life" under Clause 4(b) (punishments).

Also read: Protests in Tamil Nadu and Puducherry against 'Hindi domination' in the new triad of criminal law Bills

Project 39A's report states that the proposed change created ambiguity because, for some offences, the term "imprisonment for life" was used and for others "imprisonment for life, which shall mean the remainder of that person's natural life" was used.

For instance, the offence of organised crime defined under Clause 109(6) of the BNS used the term 'imprisonment for life'. However, Clause 102, which prescribed punishment for murder by life convicts specifically mentions "imprisonment for life, which shall mean the remainder of that person's natural life".

Under the IPC, Section 53 (punishments) provides only for the punishment of life imprisonment simpliciter. This was understood as imprisonment for the remaining period of a person's natural life in Gopal Vinayak Godse versus State of Maharashtra (1961).

Furthermore, the criminal amendments in 2013 and 2018 provided life imprisonment for the remainder of a person's natural life for certain offences relating to women and children.

Another irregularity noted by Project 39A is that for certain offences, life imprisonment for the remainder of a person's natural life was prescribed as an aggravated form of punishment. But its penological basis is defeated when either use of phrases means the same.

The parliamentary committee recommended keeping the phrase under Clause 4(b) to "imprisonment for life, which whenever hereinafter expressly specified, shall be imprisonment for the remainder of a person's natural life".

The BNS II retains life imprisonment for certain offences relating to women and children. However, the suggestions on phrasing were not accepted and BNS II continues to use both phrases.

Government can now commute 'any' sentence 

Under the BNS, Clause 5 (commutation of sentence of death or imprisonment for life) provided the power to an appropriate government to commute the death sentence and life imprisonment. This was read with Clause 475 (power to commute sentence) of the BNSS.

The only concern here was that Clause 5 of BNS only talked about commuting life imprisonment and the death penalty, while Clause 475 of the BNSS allowed the commutation of any punishment.

Further, Project 39A report notes that while Clause 5(b) of the BNS provided that life imprisonment could be commuted to imprisonment for a term not exceeding fourteen years of imprisonment, Clause 475(b) of the BNSS provided that life imprisonment could be commuted to seven years of imprisonment.

As compared to the BNS and the BNSS, the IPC provides that the appropriate government has the power to commute, suspend or remit a sentence imposed by any court. However, the only restriction on life imprisonment is that a person must go through a minimum duration of at least fourteen years of actual sentence as stated in Section 55 of the IPC read with Section 433A of the CrPC.

Also read: Bharatiya Nyaya Sanhita: Problematic Drafting of the New Provisions

The parliamentary committee recommended that the discrepancy between the BNS and the BNSS should be removed. Following this, Clause 5 of the BNS II was modified and the condition that life imprisonment must not exceed fourteen years of imprisonment was removed. Now, Clause 5 of the BNS II is subject to Clause 474 of the BNS II, which still provides that life imprisonment could be commuted to seven years of imprisonment.

Moreover, Clause 111(2)(i) (offence if terrorist act) of the BNS prescribed life imprisonment without parole for the offence of a terrorist act where the death of a person has been caused. However, this has been removed in Clause 113 (terrorist act) of the BNS II.

Terrorist acts

In India, terror-related offences are governed through anti-terror legislation Unlawful Activities (Prevention) Act, 1967 (UAPA). Under Section 15 of the UAPA, terrorist acts were defined as those committed with intent to threaten or likely to threaten the "unity, security, economic security or sovereignty of India or with the intent to strike terror".

Under the BNS, Clause 111 defined terrorist acts as those committed with the intention to threaten the "unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order".

Clause 111(iv) included acts that "destabilise or destroy the political, economic or social structures of the country, create a public emergency or undermine public safety".

The offence was punishable with death or life imprisonment without parole if it resulted in the death of any person. Otherwise, it was punishable with imprisonment for a minimum period of five years to life imprisonment.

Project 39A criticised Clause 111 for its vagueness and that it widened the scope of misuse by lowering the threshold to "intimidation of general public" or "disturbance of public order".

It also noted that Clause 111 introduced changes from the UAPA provision. For instance, Section 15 of the UAPA includes the destruction of government property within the definition of terrorist acts. However, Clause 111(1)(ii) also included the purview of the offence of destruction of "public facilities, public place or private property".

Section 15(1)(a)(iv) of the UAPA only includes within its purview property in connection to any purpose of the government.

The parliamentary committee raised concern over the ambiguity and wide scope of Clause 111.

Subsequently, acting on the recommendations, the scope of Clause 113 of the BNS II was narrowed down. The definition is now similar to the one provided in Section 15 of the UAPA. As a consequence, vaguely used words such as "intimidating the public or disturbing public order" have been removed.

The words "acts which destabilise or destroy the political, economic or social structures of the country, or create a public emergency or undermine public safety" were also removed.

Some of the innovative terrorist acts that were introduced in Clause 111(1)(iii) were acts committed to damage or destroy "critical infrastructure".

However, Clause 113(1)(iv) of the BNS II has inserted "damage to the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material".

Also read: The three new criminal Bills: Missed opportunities and misplaced priorities 

Project 39A has cautioned that the modified Clause 113 merely refers to counterfeiting without including a qualifier "high-quality counterfeit currency" mentioned in Section 15 of the UAPA.

Further, another significant change noted by Project 39A is that in Clause 111(6) of the BNS, the mere possession of a property derived or obtained from the commission of a terrorist act was punishable. Now, in Clause 113(7), it is only punishable if the property is derived or obtained 'knowingly'.

Similarly, under Clause 113(6), the harbouring or concealing of a person who has committed a terrorist act is punishable only when it is done "knowingly" or "voluntarily".

Further, Clause 113(4) has inserted other provisions such as the offence of recruiting and training persons to engage in terrorist acts similar to the ones given in Sections 18A (punishment for organising of terrorist camps) and 18B (punishment for recruiting of any person or persons for terrorist act) of the UAPA.

Apart from these changes, Clause 111 of the BNS provided explanations such as defining 'terrorist' and 'terrorist organisation'. Both explanations were criticised by Project 39A for redundancy.

Lastly, an Explanation to Clause 113 now provides that an officer not below the rank of superintendent of police shall decide whether to register a case under the BNS II or the UAPA.

But a question that remains unanswered is the objective of including Clause 113 in the BNS II when a special anti-terror legislation already exists and the definition under the BNS II has also become similar to the one in the UAPA. It must be noted that while the arrest under the UAPA has rapidly increased, the conviction rate remains minimal.

Criminal conspiracy with common intention

Clause 61 (criminal conspiracy) of the BNS made criminal conspiracy punishable in addition to the offence of conspiracy punishable in Clause 111 of the BNS.

Clause 61(1) in the BNS II has been modified to include conspiracy committed with "common intention".

Project 39A states that this insertion is not consistent with the present position of law because conspiracy and common object which is defined in Section 120B (punishment for criminal conspiracy) of the IPC are two distinct concepts. While the latter requires a prior meeting of minds, criminal conspiracy does not necessarily require this condition.

Minimum punishment for mob lynching

Under the BNS, Clause 101(2) (punishment for murder) introduced punishment for a sub-category of murder, which is defined as murder by mob-lynching when murder is committed by a group of five or more persons acting in concert with one another, on grounds of race, community, sex, place of birth, language, personal belief or any other ground. It prescribed a minimum punishment of seven years of imprisonment and a fine.

Project 39A states that the inclusion of the provision appears to be a step in the direction of the guidelines issued by the Supreme Court in Tehseen S. Poonawalla versus Union of India (2018). In this case, the court held against mob justice and stated "no individual in his own capacity or as a part of the group can take law into his or their hands and deal with a person treating him as guilty".

One of the guidelines of the court was the registration of an automatic FIR under Section 153A (promoting enmity between different groups) of the IPC. Project 39A noted that this is the first time a punishment less than life imprisonment was stipulated for a category of murder.

Another prominent difference that it noted was that while the Tehseen S. Poonawalla judgment recognised religion as an important factor in mob lynching incidents, Clause 101 fails to include this factor.

Project 39A criticised Clause 101(2) of the BNS for creating an anomalous situation where the offence of murder was punishable with imprisonment for life while murder caused by mob lynching would be punished with seven years of imprisonment.

The parliamentary committee recommended deleting the minimum punishment of seven years. Acting on this recommendation, murder caused by mob lynching will now be penalised at par with murder in Clause 101(2)(punishment for murder) in the BNS.

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Whereas, Clause 115(4) of the BNS penalised grievous hurt caused by a group of five or more persons with a maximum imprisonment of seven years and a fine. However, the punishment for grievous hurt is the same as the punishment for grievous hurt caused by mob lynching. It remains the same in Clause 117 of the BNS II.

Death by negligence

The BNS introduced a punishment of seven years with a fine under Clause 104(1) (causing death by negligence). The parliamentary committee recommendation reducing the punishment from seven to five years is consistent with Section 304A of the IPC. The BNS II has accepted this recommendation under Clause 106(1) (causing death by negligence) and provides for a sentence of five years.

Clause 104(2) of the BNS added an aggravated form of negligence category, where the offence is punishable for up to ten years if the offender fails to report the incident to a police officer or a magistrate soon after the incident "or" escapes the scene of an incident.

Project 39A stated that upon the textual reading of the aggravated category, it was not clear whether both requirements were necessary.

The parliamentary committee recommended rephrasing the provision. Whereas, Project 39A, while stating that the provision needs clarification, also noted that the mandatory provision of reporting the incident may compel a person to be a witness against themselves. This will be in violation of the right against self-incrimination under Article 20(3) (protection in respect of conviction for offences) of the Indian Constitution.

The BNS II in Clause 106 has rectified this confusion. Clause 106(2) now stands as "escapes without reporting it to a police officer or a magistrate soon after the incident".

Another change that was recommended by the parliamentary committee and was subsequently included in the BNS II is that the aggravated category in the offence of negligence is restricted to "rash and negligent driving of a vehicle". However, the provision for mandatory reporting survives.

Organised crimes

Clauses 109 (organised crime) and 110 (petty organised crime or organised crime in general) of the BNS penalised organised and petty organised crimes for the first time.

Organised crime is defined under the BNS as: "Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes having severe consequences, trafficking in people, drugs, illicit goods or services and weapons, human trafficking racket for prostitution or ransom by the effort of groups of individuals acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect, material benefit including a financial benefit, shall constitute organised crime."

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Project 39A stated that several state legislations such as the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and Gujarat Control of Terrorism and Organised Crime Act, 2015 already penalise organised crimes. Adding it to the BNS creates confusion and conflict.

These state legislations were subsequently extended to Delhi, Andhra Pradesh, Arunachal Pradesh, Karnataka, Telangana, Uttar Pradesh, Haryana and Rajasthan.

Project 39A notes that the provisions on organised crimes under the BNS are heavily borrowed from the MCOCA, except for petty organised crimes which is newly introduced.

The constitutionality of many of these legislations was challenged and subsequently upheld by the Supreme Court as noted by Project 39A.

Project 39A remarks that certain definitions such as that of 'economic offences' and 'organised crime syndicate' were not defined properly, creating ambiguity.

The modified Clauses 111 (organised crime) and 112 (petty organised crime) of the BNS II have rectified these errors and have made the definitions similar to the ones mentioned in state legislations, thereby narrowing the scope of their application.

Bharatiya Nagarik Suraksha (Second) Sanhita Bill

Community service as a form of punishment

Under the BNSS, community service was introduced as an innovative form of punishment for offences such as appearing in a public place in a state of intoxication and causing annoyance to any person; defamation against high-profile public functionaries such as the President; punishment for an attempt to commit suicide and theft where the stolen property is less than five thousand rupees and the person is a first-time offender.

However, the term 'community service' was not defined in the BNSS. The parliamentary committee recommended defining this concept.

In India, except for the Juvenile Justice (Care and Protection) Act, 2015, no other law provides for community services as a form of punishment. Section 18(1)(c) provides for a punishment in the form of community services under the supervision of an institution or organisation if a juvenile is in conflict with the law.

Accordingly, the BNSS II has defined this term in the Explanation to Clause 23 as "the work which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration".

Another change in the BNSS II is that per the recommendation of the parliamentary committee, a magistrate of the first or second class has been specifically empowered to impose a punishment of community service.

As per Project 39A's report, imposing this punishment would encourage a more reparative approach to minor crimes.

Handcuffing

Clause 43(3) (arrest how made) of the BNSS empowered a police officer to use handcuffs while "effecting" the arrest of a person who is a habitual, repeat offender, has escaped from custody and has committed offence of organised crime, terrorist act, drug-related crime or offence of illegal possession of arms and ammunition, murder, sexual offences including economic offences among other.

Also read: BNSS introduces handcuffs and in-absentia trials, widens preventive detention and police custody

Unlike Clause 43 of the BNSS, Section 46 of the CrPC makes no mention of handcuffing a person.

In Prem Shankar Shukla versus Delhi Administration (1980), the Supreme Court held all individuals are entitled to enjoy the dignity that determines the rule that ordinarily no restraint should be imposed except in those cases where there is a reasonable fear of a prisoner attempting to escape or attempting violence.

In this regard, the court said handcuffing is prima facie inhumane.

Now, Clause 43(3) of the BNSS II has deleted the term "effecting" and a reference to economic offences has been deleted.

Project 39A notes that after these modifications, the power of the police to use handcuffs has been expanded beyond the time to arrest, to include a time when the accused is produced before a court.

Immunity for police personnel

The BNSS has strengthened the existing position of law that a sanction of the Union government is required for prosecuting police officers and military personnel for their acts in dispersing an unlawful assembly.

Under Clause 151(1) (protection against prosecution for acts done under sections 148, 149 and 150), the BNSS provided that a preliminary inquiry would be necessary before the registration of a first information report and a second sanction would be obtained before the arrest of the accused officer.

Now, the BNSS II has removed these twin conditions pursuant to the recommendation of the parliamentary committee.

Detention by police for non-compliance with its directions

Clause 172(2) (persons bound to conform to lawful directions of police) of the BNSS allowed the police to detain a person who does not conform to any directions issued by the officer while trying to prevent the commission of a cognisable offence.

It also empowered the police officer to detain a person in petty cases. Clause 172(2) prescribed that in case of cognisable offences, the person must be produced before a magistrate and in petty cases, the person can be released when the "occasion is past".

While the provision did not define what "occasion is past" meant, Project 39A noted no timeline of detention had been specified.

The parliamentary committee recommended specifying the duration to prevent abuse. Consequently, Clause 172(2) of the BNSS II included that the detained person must be produced before the magistrate or be released in petty cases within twenty-four hours.

Judgments

Clause 258(1) of the BNSS provided that the judgment must be pronounced in a period of thirty days from the conclusion of the hearing. This period could be extended to sixty days.

As per Clause 258 of the BNSS II, the extension period has now been limited to forty-five days, which could be claimed by recording reasons in writing.

Project 39A notes that although the goal is to achieve speedy justice, there remains a serious concern regarding the practicality of such a timeline.

Unsoundness of mind

In BNSS, the term 'mental illness' is used. Contrary to the BNSS, the IPC used distinct terms such as mental disability, lunatic and unsoundness of mind in different provisions.

Project 39A noted that by replacing those terms with a single term, the Bills failed to consider the "definitional distinction" of different terms in its application.

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The parliamentary committee suggested that the term "mental illness" has wide application and must be restricted.

In the BNSS II, the term "mental illness" has been replaced by "unsoundness of mind" in a majority of provisions. In addition, the term "intellectual disability" has been added.

Bharatiya Sakshya (Second) Bill

In the BSB, only one significant change was proposed by the parliamentary committee regarding the admissibility of electronic evidence. Clause 61 of the BSB allowed the admissibility of electronic evidence without the requirement of a certificate as required under Clause 63 of the BSB.

In contrast to the BSB, Section 65B of the Indian Evidence Act requires a certificate for the admissibility of electronic records as evidence. The revised version of Clause 61 has adopted the recommendations which now require a certificate for admissibility of electronic evidence.

Another change has been made to the phrasing in Clause 63(4) of the BSB which provided that a certificate under the Section is to be signed by a "person in charge of the computer or communication device and an expert".

The same has now been modified to "a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate".

As per Project 39A's report, this modification has broadened the scope of persons who can sign the certificate, including the manager of such devices, following common practice. 

Overall, most of the suggestions and recommendations of the parliamentary committee have been accepted.