In December of 2023, the Bharatiya Janata Party (BJP), during the winter session of the Parliament, pushed through three crucial laws – Bharatiya Sakshya Sanhita, 2023 (BSS, 2023 in short), Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023 in short) and Bharatiya Nyaya Sanhita, 2023 (BNS, 2023 in short) replacing the Indian Evidence Act, the Code of Criminal Procedure and the Indian Penal Code respectively. These new Criminal Codes were granted Presidential assent on 25th December 2023, but do not come into force until a notification[1] to this effect is issued by the Union government.
The new criminal laws effectively alter a small percentage of the existing provisions in the IPC, CrPC and Evidence Act; majority of changes are primarily an exercise in re-numbering and/or re-structuring of existing provisions.
A portion of the changes that have been incorporated into the new criminal laws are necessary, and urgently required even. This includes the statutory basis to “zero FIRs” (section 173(1) of BNSS), decriminalisation of homosexuality (as a result of the Supreme Court judgment in Navtej Singh Johar and Ors vs. Union of India[2]), introducing a time limit for completing investigations (Section 193(9) of BNSS) among few others. The significant changes introduced vide the BSS, 2023 is the recognition of electronic evidence as primary evidence (section 57) and the expansion of the scope of secondary evidence (section 58).
Of concern though are the changes, though small in number, which alter in substantial measure the basic character of the criminal justice system in India. These changes are pernicious, and have consequences that are far-reaching for human rights and civil liberties in the country. These include among others introducing terrorism offences similar to the UAPA, handcuffing and increasing police remand from 15 to 90 days. It is widely known that the criminal justice system in India has been weaponised against religious minorities, other vulnerable communities like Dalits and Adivasis and the poor. The new codes, by diluting the right to free and fair trial, attacking the presumption of innocence and effectively sanctioning breach of Fundamental Rights by the law enforcement agencies – only seek to further entrench a system of oppression through law which will be wielded against the vulnerable. This booklet will provide a close reading of some of the most glaring concerns.
Before getting into these provisions though, it is necessary highlight the concerning manner in which these new Criminal laws have come to be passed, bypassing of the rules of procedure in Parliament. The laws – which will have an oversized impact on the everyday lives of people – were passed without much debate in a Parliament that saw the unprecedented suspension of 146 Opposition MPs (i.e. almost all members of opposition). The criminal laws were passed through what has come to be the ubiquitous way of passing bills – through a voice vote of ruling party members. History will judge the BJP for the manner in which it bulldozed these laws in Parliament, making a mockery of parliamentary democracy.
The consequences of undermining parliamentary democracy and denying any debate and discussion before passing laws is seen in the truck drivers protest that engulfed large parts of the country in the first week of January, 2024. This was the first public outburst in regard to these new criminal laws. Their anger was in response to BNS introducing section 106 to replace section 304A of the IPC (causing death by negligence), which increases the punishment for hit-and-run accidents and deaths due to rash driving from 2 years to 10 years, and criminalises fleeing the scene or failing to report the incident, which carries a maximum sentence of ten years. Truck drivers argue that they are economically weak and will be hit hard by such increased punishment. They also claim that the Union government has failed to understand that more often persons flee from accident spots to evade mob (in)justice. Incidentally, the Union home secretary Ajay Bhalla had met with the truck drivers unions and promised that the new law would only be implemented after holding discussions with them. This affirms the argument that Maansi Verma[3] makes that with the Union government rendering parliament virtually powerless to enforce procedures in law making, it is either the court of people or the court of law which can deter the government from making laws in such “illegal’ ways”. Leaving aside whether the courts of law would hold the Union government accountable, suffice to say that the hope truly lies in the court of the people. The truck drivers have followed the farmers who came out against the three Farm Laws, the working class whose struggle has left the Labour Codes in limbo, and the struggle of the Muslim community against the communal Citizenship Amendment Act. In the coming days, many such agitations are inevitable as the consequences of these new criminal laws becomes apparent to the people.
A detailed report is attached.
[1] In this regard the following provisions of the three laws need to be seen:
- Section 1(3) of BNSS, 2023 states that the law shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
- Section 1(2) of the BNS, 2023 states that the law shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Sanhita.
- Section 1(3) of the BSA, 2023 states that the law shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.
[2] AIR 2018 SC 4321
[3] “The ‘Illegal’ Ways of Law-Making by India’s Parliament”, https://thewire.in/law/the-illegal-ways-of-law-making-by-indias-parliament
All India Lawyers Association For Justice 
Leave a comment