The story to this point: The Centre on August 11 introduced three new Bills within the Lok Sabha that suggest an entire overhaul of the nation’s prison justice system. The three Bills are set to exchange the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973 and the Indian Evidence Act, 1872.

The IPC, which was launched by the British within the 12 months 1860, has been the bedrock of India’s prison justice system for greater than 160 years. It is ready to get replaced by the Bharatiya Nyaya Sanhita, 2023. The CrPC of 1973 shall be changed by the Bharatiya Nagarik Suraksha Sanhita, 2023 whereas the Indian Evidence Act of 1872 shall be changed by the Bharatiya Sakshya Bill, 2023.

“From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. With these three laws there will be a major change in the criminal justice system in the country”— Home Minister Amit Shah stated whereas introducing the three new legislations.

The Bills have been referred to a Parliamentary Standing Committee for reveiw and suggestions.

The course of to result in amendments in prison legal guidelines has been within the pipeline for some time. Former Law Minister Kiren Rijiju apprised the Rajya Sabha final 12 months that the federal government has initiated the method of modification to legal guidelines resembling IPC, CrPC and the Indian Evidence Act in session with all stakeholders. The Parliament was knowledgeable that the Ministry of Home Affairs (MHA) has additionally sought recommendations from Governors, Chief Ministers, Lieutenant Governors and Administrators of Union Territories, the Chief Justice of India, Chief Justices of varied High Courts, the Bar Council of India, Bar Council of varied States and members of Parliament relating to the proposed amendments.

The Minister stated that the department-related Parliamentary Standing Committee on Home Affairs in its 146th report had really useful that there’s a want for a complete evaluate of the prison justice system of the nation. It was additionally identified that the Parliamentary Standing Committee in its 111th and 128th experiences had additionally highlighted the necessity for reforms in prison legal guidelines by way of the enactment of a complete laws as a substitute of piecemeal amendments in current acts.

Criminal regulation reforms committee and its criticism

The Ministry of Home Affairs by way of a notification dated May 4, 2020, constituted a committee headed by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi to evaluate the three codes of prison regulation. The different members of the committee included —G.S. Bajpai (Registrar, National Law University Delhi), Balraj Chauhan (first Vice-Chancellor, Dharmashastra National Law University, Jabalpur), Mahesh Jethmalani (senior advocate, Supreme Court) and G.P. Thareja (former district and session decide, Delhi).

The mandate of the committee was to ‘recommend reforms in the criminal laws of the country in a principled, effective and efficient manner, which ensures the safety and security of the individual, the community and the nation; and which prioritises the constitutional values of justice, dignity and the inherent worth of the individual,’ per the committee web site.

In July 2020, the committee invited feedback from stakeholders by way of an intensive questionnaire. Subsequently, on February 27, 2022, the committee submitted its suggestions on the prison regulation amendments.

However, the committee got here below assault for its lack of variety and the absence of transparency in its functioning. In a scathing letter, former Supreme Court and High Court judges, senior legal professionals, and academicians questioned the lack of diversity within the all-male committee each by way of the social identification in addition to skilled background and expertise. Clarifications have been additionally sought on whether or not the committee could be functioning independently of the MHA.

Similarly, a number of distinguished girls legal professionals from throughout the nation penned a letter to the Chairperson in July 2020, expressing severe issues relating to the dearth of variety in its structure and the absence of related stakeholders, with no girls, Dalits, spiritual minorities, adivasis, LGBTQ individuals, or individuals with disabilities on the Committee. 

Responding to the mounting criticism, Prof. Ranbir Singh subsequently clarified that the structural a part of the committee’s composition lies with the MHA, nevertheless, it might perform in a totally autonomous method. He said that the committee “has remarkable diversity and competence in professional experience, affiliations, and, scholarship“ and is guided by progressive and humane thinking in the realm of criminal law. 

Has the offence of sedition been repealed?

Home Minister Amit Shah said in the Lok Sabha that the new Bill on IPC completely repeals the offence of sedition —which is reflected in Section 124A of the IPC. However, upon closer inspection, it can be seen that the provision has been introduced under a new name and with a more expansive definition for the offence.

Part VII of the Bharatiya Nyaya Sanhita Bill is titled ‘Of Offences against the State’ and includes Section 150 which expressly criminalises ’acts endangering sovereignty unity and integrity of India.’

Section 150 of the Bill reads as —’Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.’

The Explanation accompanying the provision states that- “Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section.”

In a big change to the present definition of sedition, Section 150 criminalises aiding by way of monetary means any acts of ‘subversive activities or those encouraging ‘feelings of separatist activities.’ This is a wider definition than that really useful by the twenty second Law Commission of India in its report revealed in June.

The Commission had prompt that sedition must be retained however with sure amendments to curb its misuse. Its report stipulated that Section 124A of the IPC ought to embrace the phrases ‘with a tendency to incite violence or cause public disorder’ and that the tendency to incite violence must be outlined as a ‘mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.’

With regards to punishment, Section 150 enhances the choice punishment to 7 years imprisonment from the three years imprisonment offered below Section 124A of the IPC. 

The Bharatiya Nagarik Suraksha Sanhita, 2023 (alternative for CrPC) additionally features a corresponding provision for Section 150 within the type of Section 127. The provision outlines the process for when an Executive Magistrate receives info regarding ‘dissemination of any seditious matters’ as punishable below Section 150.

On May 11, the Supreme Court ordered that the sedition regulation below Section 124A of the IPC should be saved in abeyance till the Union authorities reconsiders the supply. A Bench of then Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli noticed that the penal penalties of sedition have been supposed for a time when India was below colonial regulation.

Subsequently, in an interim order, the apex Court additionally directed that the Centre and the State governments chorus from registering any FIRs below Section 124A IPC whereas the supply was below re-consideration. During the proceedings, the Union authorities had agreed with the stand that the colonial provision requires a re-examination and isn’t in tune with the present social milieu.

Key highlights of the Bills

The Bharatiya Nyaya Sanhita Bill, 2023

This Bill, which seeks to exchange the IPC by repealing 22 of its provisions, proposes modifications to 175 current provisions and introduces eight new sections. It comprises a complete of 356 provisions.

The new provisions embrace — Section 109: Organised crime; Section 110: Petty organised crime or organised crime basically; Section 111: Offence if terrorist act; Section 150: Acts endangering sovereignty, unity and integrity of India and Section 302: Snatching.

The punishment for every type of gang rape will now embrace 20 years of imprisonment or life imprisonment. The punishment for the rape of a minor will embrace the imposition of the loss of life penalty. Various offences have additionally been made gender impartial. 

Notably, for the primary time capital punishment has been launched for the offence of mob lynching other than the offence being made punishable with 7 years of imprisonment or life imprisonment. The offence (Section 101) has been outlined as —’When a gaggle of 5 or extra individuals performing in live performance commits homicide on the bottom of race, caste or neighborhood, intercourse, fatherland, language, private perception or another floor, every member of such group shall be punished with loss of life or with imprisonment for all times or imprisonment for a time period which shall not be lower than seven years, and shall even be liable to high-quality.’

The Bill additionally criminalises sexual activity below the false pretext of marriage or by deceitful means. A most of 10-year imprisonment has been proposed for the offence. This is a notable change since IPC doesn’t have an express clause coping with situations of sexual activity primarily based on a false promise of marriage and such instances are sometimes coated below Section 90 of the IPC, the place consent obtained by way of a ‘misconception of fact’ is deemed invalid. The accused in such instances will be charged below Section 375 for the offence of rape.

Section 69 states —’Whoever, by deceitful means or making by promise to marry to a lady with none intention of fulfilling the identical, and has sexual activity together with her, such sexual activity not amounting to the offence of rape, shall be punished with imprisonment of both description for a time period which can lengthen to 10 years and shall even be liable to high-quality.’

It is adopted by an evidence stipulating that ‘deceitful means’ will embrace the false promise of employment or promotion, inducement or marrying after suppressing one’s identification.

The provision for the offence of adultery has additionally been omitted. This is in keeping with the Supreme Court’s ruling in 2018 within the case of Joseph Shine v. Union of India, the place Section 497 of the IPC, which criminalized adultery, was held to be unconstitutional.

Similarly, pursuant to the Supreme Court unanimous studying down of Section 377 of the IPC so far as it criminalised same-sex relations between consenting adults in Navtej Singh Johar v. Union of India (2018) —the proposed laws doesn’t embrace any punishment for ‘unnatural sexual offences against men.’ Sexual offences resembling rape have been outlined below the Bill as an act by a person towards a lady or a toddler. 

The provision legalising marital rape has nevertheless been retained. Exception 2 to Section 63 (which defines the offence of rape) reads–’Sexual intercourse or sexual acts by a person together with his personal spouse, the spouse not being below eighteen years of age, just isn’t rape.’

A batch of petitions difficult the constitutional validity of Exception 2 to Section 375 of the IPC, which offers an exception to non-consensual matrimonial intercourse from the offence of rape, is at present pending adjudication earlier than the Supreme Court.

Bharatiya Nagarik Suraksha Sanhita Bill, 2023

The Bill will change the CrPC by repealing 9 of its provisions. It proposes modifications to 160 provisions and introduces 9 new provisions. It comprises a complete of 533 sections.

A proper provision (Section 230) has been launched to make sure that a duplicate of the FIR is made accessible to the accused and the sufferer freed from value and inside fourteen days from the date of manufacturing or look of the accused. The Bill additionally permits the submitting of a zero FIR from any a part of the nation — when a police station receives a criticism relating to an alleged offence dedicated within the jurisdiction of one other police station, it registers an FIR after which transfers it to the related police station for additional investigation; that is known as a zero FIR.

Other modifications to expedite the process embrace the ability for an accused particular person to be examined by way of digital means, like video conferencing. Summary trials have been made obligatory for petty and fewer severe instances. The magisterial system has additionally been streamlined.

Bharatiya Sakshya Bill, 2023

The Indian Evidence Act shall be changed by Bill which proposes modifications to 23 provisions and introduces one new provision. It comprises 170 sections in whole.

The Statement of Objects and Reasons of this Bill highlights that the Indian Evidence Act has been repealed as a result of it fails to ‘address the technological advancement undergone in the country during the last few decades.’

The Bill permits the admissibility of an digital or digital report as proof and can have authorized validity as documentary proof. The ambit of what constitutes secondary proof has additionally been expanded to incorporate the next: copies produced from the unique by mechanical processes, copies produced from or in contrast with the unique, counterparts of paperwork as towards the events who didn’t execute them and oral accounts of the contents of a doc given by some one that has himself seen it. 

• The Centre on August 11 launched three new Bills within the Lok Sabha that suggest an entire overhaul of the nation’s prison justice system.

• The IPC, which was launched by the British within the 12 months 1860, has been the bedrock of India’s prison justice system for greater than 160 years.

• It is ready to get replaced by the Bharatiya Nyaya Sanhita, 2023. The CrPC of 1973 shall be changed by the Bharatiya Nagarik Suraksha Sanhita, 2023 whereas the Indian Evidence Act of 1872 shall be changed by the Bharatiya Sakshya Bill, 2023.