Image by Rezwan. Used with permission.

For almost two centuries, Indian citizens were governed by criminal laws enacted by the colonial British government in the 19th century. These were the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC, originally from 1861), and the Indian Evidence Act, 1872 (IEA). In an effort to modernize and Indianize the legal frameworks governing citizens in independent India, the government decided in August 2023 to move past the ‘colonial legacy’ and revamp the nation’s criminal legislation. This legislative overhaul was a momentous one, given that the earlier laws were deeply rooted in 19th-century British views of right and wrong, forcefully imposed and bolstered by racist perceptions of Indian peoples as sub-human savages needing to be controlled.

Soon after the announcement of this move in 2023, the Indian criminal law framework has seen the enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS) or ‘Indian Justice Code’, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) or ‘Indian Citizen Safety Code’ and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) or ‘Indian Evidence Act’, which replaced the IPC, CrPC, and IEA respectively. Coming into effect as of July 2024, these laws have drawn tremendous controversy despite being ostensibly based on the lofty ideals of decolonization, modernization and citizen-centricity.

Strategic failures in attempted reform

Despite the admittedly admirable objectives behind the new criminal laws, the government has been on the receiving end of severe criticism from experts and 100+ former bureaucrats, alongside the political opposition and the public at large. This has stemmed from a slew of reasons including the failure to truly rid the law of oppressive colonial influence, the increase in punitive measures, and the lack of stakeholder consultancy or impact assessing, transparency, or representative decision making in the legislative process.

Given that a significant portion of the old laws have merely been replicated as is, the proposed revamping of our centuries-old criminal laws did little for the removal of logical fallacies within the scope of criminal law’s application. The IPC was fairly consistent in inconsistently prescribing punishments for criminal offences. The BNS has remedied this neither by ensuring that punishments for all crimes are proportionate, nor by testing for reasonable nexus with the object of criminalization.

The new laws at large, and the BNS in particular, continue the colonial trend of an over-reliance on criminalization and harsh punishments, an increase in punishments prescribed for many offences, and the use of the death penalty. It also retains obscenity-related laws and the criminalization of adultery, sedition (although rephrased, not in a progressive-leaning manner), and gendered offences.

The new laws aim to bring in systemic changes and procedural improvements to advance the accessibility of justice. Not only does there continue to be excess police power and limited focus on rehabilitation, but the mechanization of new procedural requirements also remains in question. The timelines fixed for time-bound investigation, trial and judgments do not seem to be backed by trial court data, their enforceability remains unclear, and infrastructure remains inadequate.

Despite their ambitious goals, the new laws have been criticized for replicating much of the old and introducing contentious provisions. Instead of a true overhaul, the changes seem superficial, with significant issues remaining either unaddressed or exacerbated.

Promises much, delivers little

The overhaul of the three criminal laws has seen the addition of various provisions that were not present in the earlier legislations, intending to increase citizen-centricity in procedures, reduce delays, and incorporate technological advancement.

The BNS has introduced offences relating to organized crime, terrorist acts, acts endangering the sovereignty, unity, and integrity of India; murder by a group of five or more persons on the ground of race, religion, caste etc., making or publishing fake news, sexual intercourse by employing deceitful means, etc. It also increases punishments for various offences and adds mandatory minimum punishments. The addition of the offence of ‘endangering sovereignty, unity and integrity of India’ is eerily similar to the offence of ‘sedition,’ the usage of which had been stayed by the Supreme Court of India. Such offences tend to endanger fundamental rights such as freedom of speech and expression of citizens in a constitutional democracy.

Offender-specific gender neutrality has been introduced for voyeurism and attempting to disrobe a woman. Yet, the victim can still only be a woman, signalling a half-hearted approach overcoming gender biases. Sexual intercourse with animals and male-on-male rape has effectively been decriminalised.

A significant addition is the introduction of community service for certain criminal offences. Although this punishment has been prescribed for a mere six offences, it is a welcome step in the direction of reformation and rehabilitation. On the other hand, it continues to retain specific provisions which were used by the colonial government to protect its interest and suppress dissent, such as criminal defamation.

The BNSS adds provisions that restrict the power to arrest in certain cases. It introduces mandatory bail provisions and establishes timelines for various processes. Victims have been assured time-bound updates on the progress of investigation. It also provides for the use of audio-video recording for investigative procedures including the test identification parade, search and seizure operations, taking statements of the victim, and collection of forensic evidence to ensure transparency and accountability. It further bolsters the police's discretionary power to seek custody of accused persons, allows the increased use of handcuffs in contravention of various judicial pronouncements, and permits trial in the absence of the accused.

The BSA provides for the admissibility of electronic or digital records as primary evidence and expands the scope of secondary evidence to include oral admissions, written admissions, and the evidence of a person who has examined a document. Regrettably, the use of facial recognition technology continues to remain largely unregulated, with no guidelines having been laid down regarding its admissibility, despite the rapidly increasing use of technology in forensic procedures.

Even with these changes, the laws continue to be based on the premises of creating terror in the minds of citizens and viewing them with suspicion. The provisions relating to procedures, investigation, and criminal trials do not deviate from the colonial legacy of oppressive measures, increased discretionary powers given to the police, and vague definitions of offences.

Colonial legacy continues

The enactment of the three new laws were a chance for the government to redefine how India criminalizes and punishes. Yet, these laws do not seem to significantly rewrite or let go of any of the so-called colonial legacies they sought to shed, seen in the retention of most provisions, increased punitive measures, and the ever-expanding scope of criminal law.

Even as the government touts this exercise as the biggest reform of the century, it seems that the radical and comprehensive transformation it sought for the criminal justice system is, for now, limited only to the names of these laws. Whether these laws will truly provide for justice as intended and not just punishment, is a question yet to be answered.