CRIMINAL LAWS REVISITED: KEY DIFFERENCES BETWEEN OLD AND NEW LEGAL FRAMEWORKS

Stuti Suman, Student, Reva University

Abstract 

This article highlights the reasons for the growth of criminal laws and their impact on society by conducting a thorough comparison of both new and old laws. This blog seeks to upskill readers about the effectiveness of reforms in tackling contemporary difficulties while fostering a thorough understanding of the changing character of the justice system by examining the fundamental legislative changes and their implications.

Introduction

The criminal laws have been changed for both pragmatic and symbolic reasons. Even though India gained its freedom more than 70 years ago, its laws are still from the colonial era. A change was long overdue. India’s laws got antiquated over time. Certain clauses and practices were completely nonsensical. Reform was therefore required. The majority of political parties and legal professionals concur that change is required. The previous laws were created by the British to take advantage of India’s resources and put an end to any uprising. The previous rules were not gender-neutral and had intricate frameworks; there are over 400 instances in which the British crown is described that illustrate colonial enslavement. 

 Highlights of the New Laws 

  • First, murder committed on the basis of caste or community is now recognized by the new legislation as a different crime from other types of murder. Lynching is now a distinct crime as well. 
  • Two, new regulations for terrorism and organized crime. The UAPA Unlawful Activities (Prevention) Act was one of the statutes that had these prohibitions. States with region-specific legislation include Maharashtra. Eliminating all of it and centralizing and streamlining the regulations is the goal.
  • Third, this legislation penalizes sexual contacts through deception. For example, if someone concealed their identity or made a false promise of marriage or employment in order to engage in sexual relations with a woman, this law will take effect. Although ten years in prison is the maximum penalty, some legal experts worry that the voluntary partnership might eventually become illegal. 
  • Fourth, there are issues with the expansion of police custody since longer periods of time in detention give rise to worries about tampering and torture. 
  • Five emphasizes prompt justice.
  • Sixth, community service is incorporated.
  • Seven, no FIR.  
  • Eight, sedition is no longer an issue. 
  • Nine, having sex with a minor spouse is considered rape. 
  • A trial in absentia is then presented. 
  • The first case under the new criminal rules was a motorcycle theft case that was filed in Gwalior, Madhya Pradesh. 

Historical context of old criminal laws

The Roots of the Indian Penal Code (IPC)

Thomas Babington Macaulay aimed to standardize India’s criminal justice system in 1860 when he authored the Indian Penal Code. To consolidate power and streamline procedures, the British developed the Indian Penal Code (IPC) and then procedural rules like the Code of Criminal Procedure (1861) and the Indian Evidence Act (1872). Prior to this, laws were divided according to regional traditions and religious regulations.

The British replaced the local laws with a single criminal law for four reasons. The following are the causes: 

  • Not all of these laws were the same. It was therefore incongruous. 
  • Due to the laws’ lack of codification, there were several misunderstandings.
  • This legislation took a long time to implement. 
  • under the East India Company’s authority. Their need to develop procedures and acquire authority was intense. 

A well-known British politician and historian, Thomas Babington Macaulay, was instrumental in bringing Western legal and educational reforms to India. He was asked to lead important reforms in India, such as reorganizing the educational system. 1834: In accordance with the Charter Act of 1833, Macaulay was named president of the first Law Commission of India. He and his colleagues created the initial draft of the Indian Penal Code during his tenure, which was primarily a codification of English law with a few sections taken from the Louisiana Civil Code and the Napoleonic Code. Enacted in 1860, the Indian Penal Code came into effect in 1862.
Procedural laws were required to guarantee the application of substantive legislation. The original purpose of these procedural regulations was to stifle British objections and set up systems that supported colonial control. The Code of Criminal Procedure, which included procedures for investigation, conviction, and punishment, was first enacted in 1861. The Code of Criminal Procedure from the colonial era was superseded after India attained independence. A revised draft, reflecting the legal priorities of the independent nation, was finally enacted in 1973 after a 1970 draft had lapsed.

The Indian Evidence Act was introduced in 1872 in large part to the efforts of Sir James Fitzjames Stephen, a renowned British barrister and judge who specialized in evidentiary and procedural rules. An important turning point in the evolution of India’s legal system was reached with this Act, which defined the principles of evidence.

India’s Legal Reform Process

Changes to Indian laws are mostly influenced by the Law Commission of India’s reports and recommendations. Before creating comprehensive reports, the Law Commission carries out a great deal of research and consultation. These findings are subsequently given to influential legal experts and legislators for review.

Key Reports by the Law Commission

22nd Report: Advocated for the removal of sedition laws.

87th Report: Introduced the Prisoner Identification Act.

262nd Report: Recommended abolishing the death penalty, except for terrorism-related offences.

Working with prestigious academic institutions is a common step in the creation of new legislation. The National Law University in Delhi, for example, was instrumental in the most recent reforms carried out by the “Committee for Reforms in Criminal Laws.” Following extensive discussions and stakeholder consultations, the amended legislation went into effect on July 1, 2024.

Types of Laws in India

There are two categories for India’s legal system:

  • Laws that identify crimes and outline the appropriate penalties are known as substantive laws.
  • Laws that specify the actions that must be taken in the event of a crime, such as submitting a formal complaint, court hearings, and trial procedures, are known as procedural laws.

Important Modifications to the Law

  • Section 576 of the Indian Penal Code was lowered to 356 in the Bharatiya Nyaya Sanhita (BNS), which also included offenses against women and children.
  • Bharatiya Nagarik Suraksha Sanhita (BNSS) adopted the Code of Criminal Procedure, which expedited police detention processes and introduced digitization.
  • The Indian Evidence Act to Bharatiya Sakshya Sanhita broadened the definition of digital and electronic evidence.

Advantages of new laws 

The new rules’ move toward gender neutrality, which addresses a key critique of the previous legal system, is one of their notable improvements. The guidelines are now gender-neutral from the standpoint of the offenders. For example, people of either gender are now able to commit the crime of making fun of a woman’s modesty, which was formerly exclusive to men. Both men and women may also be the target of legal action. From the victim’s point of view, the laws are not totally gender-neutral, though.

Timely justice is emphasized in the new legal system. To provide fair justice in three years, the long-standing system of drawn-out trials is being addressed. Additionally, there is a 180-days maximum time limit for filing charge sheets.

The laws are strengthened even more by the addition of new offenses. Stricter punishments are now imposed for crimes like snatching, mob lynching, phony marriage pledges, question paper leaks, ATM robberies, and Ponzi schemes. The new framework clearly recognizes crimes that pose a danger to India’s security and sovereignty, including armed rebellion, separatist operations, and terrorism.

Progressive measures for minor offenses are also introduced under the new legislation. For example, community service is now a punishment for little crimes such thefts under ₹5,000. Although a similar section addressing activities threatening national security has been inserted, the removal of sedition remains a major step.

Criticisms

There have been a number of discussions and criticisms since the new laws were introduced. One well-known criticism is the statute names, which some believe to be an attempt to impose Hindi. Nonetheless, the government explained that in order to preserve accessibility and inclusivity, the titles are derived from Sanskrit, while the laws’ contents are given in English. 

The inability to keep the current names is another point that has been brought up. As the new framework places a higher priority on justice and rehabilitation than the previous framework, which was primarily focused on punishment, the answer highlights the need for a symbolic change in vocabulary. 

A third criticism is that rather than creating completely new laws, the previous ones may have been changed or adjusted. The argument goes that a fundamental shift in principles would not be possible through additions or changes. The new laws were required to update out-of-date legislation and include contemporary procedures, such as mandated video recordings during statement collection, digitization, the use of forensic teams in investigations, and stringent deadlines for filing charge sheets. 

Key provisions of the Bharatiya Sakshya Bill 2023

The Indian Evidence Act undergoes major modifications thanks to the Bharatiya Sakshya Bill. Part 1 (Preliminary, Chapter I, Sections 1-2), Part 2 (Relevancy of facts, Chapter II, Sections 3-50), Part 3 (On proof, Chapters III-VI, Sections 51-103), and Part 4 (Production and effect of evidence, Chapters II-XI, Sections 104-170) comprise the four sections of the Bharatiya Sakshya Bill. One significant distinction is how dying declarations are handled. The Bharatiya Sakshya Bill moves the section on dying declarations from Section 32 of the Indian Evidence Act to Section 26. Similarly, Section 23 of the Bharatiya Sakshya Bill streamlines the application of the confession requirements that were formerly dispersed among Sections 25, 26, and 27 of the Indian Evidence Act. 

Significant changes to the Indian Evidence Act are introduced by the Bharatiya Sakshya Bill. Four sections make up the Bharatiya Sakshya Bill: Part 1 (Preliminary, Chapter I, Sections 1-2); Part 2 (Factual Relevance, Chapter II, Sections 3-50); Part 3 (On Proof, Chapters III-VI, Sections 51-103); and Part 4 (Production and Effect of Evidence, Chapters VII-XI, Sections 104-170). The way death declarations are handled makes a significant effect. Section 32 of the Indian Evidence Act deals with deathbed declarations; however, Section 26 of the Bharatiya Sakshya Bill moves this clause. Similar to this, the conditions for confessions that were previously dispersed throughout Sections 25, 26, and 27 of the Indian Evidence Act have been simplified in their applicability by being combined into Section 23 of the Bharatiya Sakshya Bill. 

With a focus on providing definitions for “document” and oral and documentary evidence, a new provision, Section 61, has been added. These definitions now cover digital and electronic records, bringing the law up to date with contemporary technical developments. To further streamline the evidentiary process, clauses pertaining to the oral admission of electronic records have been removed.
The addition of Section 63(11) broadens the definition of secondary evidence. This comprises oral reports of the contents of documents, counterparts of documents, and mechanically produced copies from the original. Digital and electronic records now have the same legal weight as paper documents and are specifically acknowledged as admissible evidence. A thorough attempt to modernize evidence law is also shown by the bill, which introduces one new provision, amends 23 requirements, and repeals five of the Evidence Act’s provisions.

Key Provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023

Criminal procedure undergoes structural modifications as a result of the BNSS. The elimination of metropolitan magistrate courts is one of its noteworthy developments. The process for filing a FIR is described in Section 173, while Section 187 permits up to 15 days of extended police custody, which can be granted gradually over the 40–60 days court detention period. These additions have, nevertheless, sparked worries about possible abuse. 

The 1973 Code of Criminal Procedure and the BNSS have very different bail requirements. Accused people who spent half the maximum sentence for their offense were granted bail under the CrPC, but those who are facing multiple offenses are not granted this privilege by the BNSS, which may restrict their access to bail. Furthermore, contrary to earlier Supreme Court rulings, handcuffs have been allowed in a variety of situations, including economic offenses.

Tighter plea negotiating rules now mandate that applications be submitted within 30 days of the charge being framed. The efficacy of plea bargaining as a technique for reduced punishment may be limited by this strict schedule.

Key Provisions of the Bharatiya Nyaya Sanhita (BNS) 2023

The goal of the Bharatiya Nyaya Sanhita is to modify and combine the laws pertaining to offenses. Under Section 4, community service has been implemented as a form of punishment to encourage rehabilitation rather than jail for minor offenses. The BNS’s Chapter V streamlines legal references by combining offenses against women and children that were previously dispersed throughout several chapters into a single section. 

Important topics pertaining to sexual offenses are covered under the provisions. According to Section 63, a man and his wife engaging in sexual activity as long as she is older than 18 does not amount to rape. This clause is consistent with the Supreme Court’s 2017 ruling in Independent Thought v. Union of India, which increased the legal age of consent in marriage to 18. Furthermore, gang rape of minors and sexual contact through dishonest means now carry harsher penalties.

The BNS eliminates adultery as a crime and decriminalizes abnormal sexual relations by removing Section 377. Additionally, it adds new clauses, such as making mob lynching a distinct crime with the death penalty. Section 111 recognizes organized crime, while Section 112 recognizes small organized crime. Both are now legislated, and offenses carrying a death sentence carry harsh consequences. In addition, the BNS replaces the sedition laws and includes a more expansive definition of terrorist acts, punishing actions that jeopardize India’s unity and integrity and emphasizing “country” rather than “government.” 

Suicide attempts are no longer considered crimes, snatching is now recognized as a separate offense, and severe penalties for hit-and-run incidents are among the other important improvements. Section 10 promotes inclusivity by expressly include transgender people in the definition of gender. Increased penalties for carelessness involving animals demonstrate how the law takes into account the wellbeing of society. 

CONCLUSION

The historical injustices inflicted during British administration are not adequately addressed by the current legislation, according to legal specialists. They contend that in addition to legislative adjustments, a thorough reform of the criminal justice system is necessary. However, the implementation of these laws marks a critical turning point in India’s legal history and was made possible by intense consultations with the legal community, academic institutions, advocates, judges of the Supreme Court and High Court, members of Parliament, members of Legislative Assemblies, and representatives from several states. Since criminal law has such a significant influence on residents’ daily lives, these reforms represent a turning point for the nation. A society’s moral compass and dedication to justice are frequently reflected in the development of criminal law.

Criminal laws are a fundamental component of any contemporary legal system because they highlight the fine line that must be drawn between preserving social order and defending individual liberties. Modernizing the criminal justice system to make it more reflective of modern society and more in line with the values of justice and fairness is the main goal of these reforms. The new laws aim to preserve individual liberty while promoting a fair and just society by resolving inefficiencies and out-of-date regulations. 

References

  • Independent Thought v. Union of India, (2017) 10 SCC 800, Supreme Court of India
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