• The Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB), replace the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC), and the Indian Evidence Act, 1872 (IEA), respectively.  These Bills seek to modernise the current legal framework and overhaul the criminal justice system.   

• Punitive versus reformative justice:  The Bills seek to move towards a reformative justice system by providing for community service instead of imprisonment.  However, they mostly retain the current punitive character of the criminal justice system. 

• Civil versus criminal jurisprudence:  The Bills retain several offences from the IPC and CrPC which may be civil disputes, that is, these cause injury to a person instead of being offences against the public or state.  

• Trial procedure and maintaining public order:  The BNSS contains procedures for investigation and trial, as well as provisions on maintaining law and order.  The question is whether a law on criminal procedure should deal with maintaining public order as well. 

• Overlap with special laws:   The Bills retain several provisions from the IPC, which have been incorporated in other special laws.  Removing these might help in reducing inconsistencies and administrative duplication.  The Bills also add provisions from other special laws related to terrorism and organised crime.  

• Age for criminal responsibility:  The minimum age for criminal responsibility has been retained at seven years, which is lower than the norm in international conventions and other jurisdictions.  

• High proportion of undertrials in jails:  The BNSS retains the current provisions in CrPC.  It also prohibits bail for the accused if they have multiple cases pending.  It does not allow plea bargains to be struck for a lesser offence.  

• Court judgements and committee recommendations not codified:  The Bills have not codified several directions given by Courts, such as those related to anticipatory bail and arrest procedure.   The Bills have also not incorporated several recommendations made by various high-level committees related to arrest, confessions, bail and the death penalty.  

• Institutional bottlenecks:  Several bottlenecks in the justice system, such as police vacancies and poor forensic capacity, affect speedy justice delivery.  The Bills do not address these challenges.  

• Drafting issues:   The Bills do not address certain gaps with respect to offences, contain several drafting errors, and use obsolete illustrations.

Context

The Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872 (IEA), the Code of Criminal Procedure, 1882, the Police Act, 1861, and the Prisons Act, 1894 were enacted as the main laws to govern criminal justice in British India.   The Code of Criminal Procedure was replaced in 1898 and again by the Code of Criminal Procedure, 1973 (CrPC).   After the commencement of the Constitution, police and prisons were placed in the State List of the Seventh Schedule.  

While, the IPC, CrPC, and IEA govern the overall criminal justice system, over the years various special laws have been enacted to penalise certain offences and provide for separate procedures.  For instance, the Unlawful Activities (Prevention) Act, 1967 deals with terrorist activities and unlawful activities of individuals and associations.  The Protection of Children from Sexual Offences Act, 2012 protects children from sexual assault and pornography.  The Food Safety and Standards Act, 2006 is a regulatory law that penalises offences including food adulteration.  Various states have also enacted laws to control organised crime.

On August 11, 2023, three Bills were introduced in Lok Sabha to replace the IPC, CrPC and IEA.  These are the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Bill, 2023 (BSB), respectively.  The three Bills have been examined by the Standing Committee on Home Affairs.[1]

KEY ISSUES IN CRIMINAL LAW REFORMS 

Modernising the criminal justice system 

The IPC, IEA, and a large section of the CrPC are older than independent India.  Given that the Bills are replacing laws from the 19^th and 20^th century (though amended several times), the question is whether they reflect current norms of criminal jurisprudence.  We examine nine aspects.

Should criminal laws be reformative or punitive in character  

In 1979, the Supreme Court indicated that reformation and rehabilitation of offenders were the foremost objects of the administration of criminal justice in India, rather than solely deterrence of crime.[2]  The idea of punishment being reformative and aimed at reintegrating offenders into society is central to reforming the criminal justice system.[3]  The Report on the Draft National Policy on Criminal Justice (2007) recommended introducing certain reformative elements into criminal law.[4]  These include: (i) decriminalising offences that can be dealt through civil process, (ii) mainstreaming settlement without trial (compounding and plea bargaining), and (iii) allowing compensation and community service for offences such as vagrancy.  The Bills move the needle a bit towards reformative justice by providing for community service as an alternative to incarceration for some offences.   However, they largely retain the punitive character of the criminal justice system.  

There are inconsistencies in classifying offences as bailable and compoundable.  For instance, theft is punishable with rigorous imprisonment between a year and five years.  The BNS adds that community service may also be imposed as punishment for theft.  This is provided for cases where: (i) the value of the stolen property is less than Rs 5,000 (ii) the person is a first-time offender, and (iii) the stolen property is returned or its value is restored.  However, theft remains a non-bailable offence.  On the other hand, the BNS adds snatching as an offence (aggravated form of theft) punishable by imprisonment up to three years but makes it a bailable offence.  In addition, many minor offences that can be tried summarily are not compoundable and will require trial and conviction (even with a fine).  For example, the BNS penalises keeping an unauthorised lottery office with imprisonment up to six months.  Although, the severity of the punishment suggests that it is considered a minor offence and eligible for summary trial, it is not included in the list of compoundable offences under the BNSS.  

There has been a move towards reformative process in other jurisdictions.  For example, the California Criminal Code was amended in 2022 to state that legislatures should intend for criminal cases to be disposed of by the “least restrictive means available”.  It also requires judges to “consider alternatives to incarceration, including, without limitation, collaborative justice court programs, diversion, restorative justice, and probation”.[5]

Certain offences under the Bills may be treated as civil cases 

Typically, civil law deals with disputes between private parties and negligent acts of individuals that cause harm to others.[6]  Criminal law deals with intentional acts of harm to individuals and offences that can be against the public, society or the state.  The CrPC provides a list of offences that may be compounded by the affected person, resulting in the accused being acquitted.  The BNSS retains similar provisions as the CrPC.   For example, in the case of cheating, the person who is cheated may compound the offence.  By giving this power to the affected person, the CrPC treats such offences as against the person rather than against society at large.   The question arises whether such cases should be treated as civil cases instead of being in BNS.

The BNSS and BNS also retain several provisions from the CrPC and IPC that may be considered as civil disputes.  These include provisions related to providing maintenance to wives, children and parents.   The IPC penalises defamation, which is retained in the BNS.  While some countries such as the United Kingdom and New Zealand now consider defamation a civil offence, some others such as Canada and Germany have included defamation in their criminal codes.[7]  

The BNSS also deals with public order functions

The CrPC provides for the procedure for investigation and trial for offences.  It also contains provisions for security to maintain peace, and maintenance of public order and tranquillity.  It contains provisions that allow a District Magistrate to issue orders needed to preserve public order.  The BNSS has retained these provisions (in separate chapters).  Since trial procedure and the maintenance of public order are distinct functions, the question is whether they should be included in the same law or if they should be dealt with separately.  As per the Seventh Schedule of the Constitution, public order is a state subject.[8]  However, matters under the CrPC (prior to the commencement of the Constitution) fall under the Concurrent List.[9]

Codification of directions of the Supreme Court and High Courts

Courts have laid down the procedure for several aspects of the criminal justice system.  Codifying these procedures and guidelines in law is recommended for two important reasons.  First, there may be multiple judgements dealing with the same issue, which may not be easily accessible or understood by the general public and law enforcement officers.  Second, the legislature has the constitutional mandate and the deliberative processes to enact appropriate law with sufficient safeguards, while courts only fill the gap.  For example, the Vishakha judgement which established guidelines to protect women against sexual harassment at the workplace, was followed by an Act of Parliament in 2013.[10]^,[11]

These Bills partially adhere to the principle.  The BNSS adds that every state will prepare and notify a witness protection scheme to protect witnesses.  The inclusion of this provision may be attributed to the repeated emphasis on protecting witnesses by the Supreme Court and the subsequent implementation of the Witness Protection Scheme in 2018.[12]  However, the Bills do not codify certain other aspects, such as those related to arrests and bail.  Since these functions are carried out by police officers and judges nationwide, codifying them would help bring about some uniformity in implementation.  For instance, the Supreme Court (2021) held that for offences punishable up to seven years imprisonment under the IPC, the Court may decide bail application of the accused in his presence without taking him in custody.[13]  

Sentencing guidelines may help addressing judicial disparity in sentencing

Many offences specify a range for the penalty.  For example, the punishment for a man who deceives a woman, who is not married to him into thinking they are married and cohabits with her will be imprisoned up to 10 years with a fine.  This means that the judge may impose a sentence anywhere between a day and 10 years.   The judge is tasked with exercising judgement based on the circumstances of the case to determine the appropriate sentence.  With such a wide range, different judges may impose varied sentences on similar cases, resulting in an outcome that is dependent on which judge is assigned the case.  Judicial disparity in sentencing for similar cases may affect fairness and consistency in the legal system.  This may be addressed by narrowing the range of allowable penalties and providing sentencing guidelines for judges to ensure consistency across judges.  

To ensure that sentences are proportional, several jurisdictions have introduced sentencing guidelines.  The United Kingdom, and the US states of Minnesota and California, give judges the discretion to determine the sentence according to sentencing rules.[14]^,[15]  These rules provide guidelines including a range of punishment for each offence, taking into account factors such as the offender’s personal circumstances and the severity of the crime.[16]  The Malimath Committee (2003) had recommended adopting sentencing guidelines to minimise uncertainty in imposing sentences.[17]   

The minimum age of criminal responsibility is set at seven years

The age of criminal responsibility refers to the minimum age at which a child can be prosecuted and punished for an offence.  Advances in understanding the neurobiological processes affecting adolescent behaviour have raised questions on the extent to which children should be held accountable for their actions.[18]  Under the IPC, nothing is considered an offence if it is done by a child below the age of seven years.  The age of criminal responsibility increases to 12 years, if the child is found to not have attained the ability to understand the nature and consequences of his conduct.  The BNS retains these provisions.  This age is lower than the age of criminal responsibility in other countries.  For instance, in Germany, the age of criminal responsibility is 14 years, whereas in England and Wales, it is 10 years.[19]^,[20]  In Scotland, the age of criminal responsibility is 12 years.[21]   It may also contravene international conventions that India is a signatory to.   In 2007, the UN Committee on the Rights of the Child recommended states to set the age of criminal responsibility to above 12 years.[22]  

Scope of bail limited in case of multiple charges

As per the CrPC, if an undertrial has spent half of the maximum period of imprisonment for an offence in detention, he must be released on his personal bond.  This provision does not apply to offences which are punishable by death.  BNSS retains this provision and adds that bail will be granted to undertrials who are first-time offenders if they have completed one-third of the maximum sentence.   However, it also expands the offences and individuals this provision will not apply to: (i) offences punishable by life imprisonment, and (ii) persons who have pending proceedings in more than one offence.  Since chargesheets often mention multiple offences, this may make many undertrials ineligible for mandatory bail.

Limited plea bargaining 

Plea bargaining is an agreement between the defence and prosecution where the accused pleads guilty for a lesser offense or a reduced sentence.  It was added to the CrPC in 2005.  Certain offences punishable with a death penalty, life imprisonment, or an imprisonment term exceeding seven years are not subject to plea bargaining.  The CrPC does not permit a bargain to be struck for a lesser offence or for compounding the offence – the accused will be considered to have confessed and been convicted of the offence.  The BNSS retains this provision.  This limits plea bargaining in India to sentence bargaining, that is getting a lighter sentence in exchange for the accused’s guilty plea.   

Incorporating recommendations of various high-level Committees

Several Committees have examined aspects of criminal law over the years.  These include the Law Commission, the Parliamentary Standing Committee on Home, the Justice Malimath Committee (2003), and the Justice Verma Committee (2013).  Aspects covered by these Committees include those related to arrest, confessions, bail, compensation for wrongful prosecution, and the death penalty.   Several major recommendations of these Committees have not been incorporated in the Bills.  

For example, the Malimath Committee (2003) recommended adding a chapter in the CrPC to provide compensation for people who are wrongfully accused.17  The Law Commission (2003) recommended that that facts discovered using any threat or violence as a result of information received from the accused in police custody will not be provable.[23]  In 2017, the Law Commission also recommended inserting a new section in the CrPC, which would require Courts to record reasons for denying bail.[24]  For a detailed list of recommendations, please refer to our Legislative Briefs on the three Bills.  

Institutional bottlenecks in the criminal justice system 

The criminal justice system is reliant on the functioning of various entities, including the police, judiciary, bureaucracy (District Magistrates), and prison officials.   Police officers have the power to enforce laws, arrest suspects, and take them to custody.  These suspects may appear before a judge who will determine their guilt or innocence.  Upon conviction, prison officials are tasked with managing imprisonment, parole, and probation.  However, logistical issues arise in the criminal justice system due to understaffing, lack of experts, and high rates of pending cases and prison occupation, which ultimately impacts the entire system.  

Vacancies in police and additional workload hampers investigations

Vacancies:  As on January 1, 2021, about 21% of police posts were vacant across states.[25]   This vacancy rate varies across states.   For instance, Bihar (42%) and West Bengal (38%) reported higher vacancy rates in their state police than Kerala (4%) and Himachal Pradesh (9%).²⁵  Vacancy rates also differ across positions with an 8% vacancy rate for Superintendent posts and 28% vacancy rate for Inspector positions.²⁵  Women represent about 10% of the police force.[26]   To address administrative bottlenecks due to understaffing, the Standing Committee on Home Affairs (2022) recommended states/UTs to conduct police recruitment drives.³³ 

Improving investigation:  Another concern highlighted by the Standing Committee on Home Affairs (2022) was a low conviction rate, which was below 45%, for major crimes like murder, rape, kidnapping.²⁶  Contributing factors included: (i) lapses in investigation, (ii) lack of time for investigation due to other duties, (iii) failure to write case diaries regularly, and (iv) non-collection and preservation of evidence.²⁶  The Committee recommended senior police officers to conduct on-the-spot assessments and submit monthly progress reports on important cases and the performance of investigating officers.²⁶ 

To prioritise investigation, the Mooshahary Committee (2005) had recommended separating core police functions (investigation and maintenance of law and order) from the non-core functions (serving of summons).[27]  The Committee on Home Affairs (2022) emphasised that separating investigation from law and order is vital for police accountability and autonomy in investigating crimes.²⁶  It noted that only six states, including Tamil Nadu, Maharashtra, and Punjab, have fully separated the duties of investigation and law and order.

Lack of forensic facilities

Forensic laboratories serve a key role in investigations by providing analytical support to law enforcement and the judiciary.[28]  These laboratories also conduct DNA-based forensic investigation on crimes such as homicide, sexual assault, and robbery.[29]  The BNSS introduces a mandatory visit from a forensic expert at a crime scene to collect evidence for every offence punishable with at least seven-year imprisonment.  If a forensic facility is unavailable, the state government may notify the use of facilities from other states.  While the Bill expands the use of forensics in investigation, the availability of forensic facilities remains a concern.  

Currently, there are six Central Forensic Laboratories (CFL) and one additional CFL in Delhi under the Central Bureau of Investigation.[30]  As of March 2023, there are 32 State Forensic Laboratories, 106 Regional Forensic Science Laboratories, and 516 Mobile Forensic Science Vehicles with states and UTs.[31]  Forensic labs are not evenly distributed across states/UTs.  For instance, as of January 2021, Uttar Pradesh had four and Odisha three regional forensic science laboratories, while Maharashtra had seven and Tamil Nadu ten.[32]   The Committee on Home Affairs (2022) recommended the MHA set up one forensic laboratory in every state capital and in every city with a population over one million persons within a two-year timeframe.[33]   Currently, the Forensic Science Laboratories face several challenges such as: (i) limited capacities for timely investigation, (ii) upgrading technologies, (iii) availability of trained manpower, and (iv) ensuring quality assurance and control.[34]  

High pendency of cases

The Indian judiciary faces an increasing number of pending cases at all levels and a large vacancy at most levels.  As a result of growing backlog of cases for a long period, the number of undertrials (accused awaiting trial) has also increased.   As of December 2021, India’s prisons housed over 5.5 lakh prisoners, with an overall occupancy rate of 130%.[35]  Around 77% of these prisoners were undertrials (4.3 lakh), while the remaining 23% were convicts and detenues.[36]  Delhi (91%), Jammu and Kashmir (91%), Bihar (89%), West Bengal (88%), and Odisha (87%) reported a high undertrial population.[37]   

The burden of pending cases and a large undertrial population affects multiple tiers of the judicial system.  As on March 30, 2022, around 20% of cases pending with the Supreme Court were criminal matters.[38]  As of December 12, 2021, criminal cases accounted for 74% of the overall pending cases in lower Courts in India.[39]  As on November 2023, over 30 lakh criminal cases are pending for more than 10 years.[40]

Overlap between the Bills and special laws 

When the IPC was enacted, it encompassed all criminal offences.  Over time, special laws have been enacted to address specific subjects, and related offences.  Some of these offences have been removed from the BNS.  For example, offences related to weights and measures which were incorporated in the Legal Metrology Act, 2009 have been removed from the BNS.[41]  However, several offences are still retained, such as offences related to adulteration of food and drugs, bonded labour, motor vehicles, and human trafficking.   Further, the BNS adds terrorism and organised crime as offences.  These offences are covered under relevant special laws.  

In certain cases, duplication of laws could create a parallel regulatory and administrative framework which could lead to additional compliance burden and costs.  Penalties for the same offences also vary across these laws.  Certain laws also provide different definitions for the same subject.  Deleting provisions related to such offences could remove duplication, possible inconsistency, and multiple regulatory regimes.  Please see our Legislative Briefs on the BNS and BNSS for examples of such overlaps.

Criminal identification: In 2006, the CrPC was amended to empower a Magistrate to obtain handwriting or signature specimens from a person.  The BNSS expands this provision by empowering the Magistrate to also collect finger impressions and voice samples, and widens the ambit of persons whose data may be collected.  The Criminal Procedure (Identification) Act, 2022 allows the collection of more identifiable information about individuals for the investigation (such as biological samples).  It also permits collection of data of individuals who may not be the accused.   The question is whether there is a need for the provision if it is already covered by an existing law with wider provisions for such data collection.  

Gaps in the law and drafting issues

The Bill contains gaps which are not covered in other laws.  For example, the BNS drops the erstwhile section 377 of the IPC, leaving no law that makes rape of an adult man an offence.  Further, there are several instances of drafting errors.   For example, the replacement of “provided that” by “unless” reverses the cases when an intoxicated person cannot be held liable for an offence.  

There are illustrations that are obsolete, which refer to swords, horsewhips, cannons, chariots and palanquins.  Illustrations are meant to make it easy for the public (as well as judges) to understand what would fall under that section.  Therefore, illustrations should relate to examples found in ordinary life.   Please see our Legislative Briefs on the respective Bills for some examples of gaps, drafting errors, and obsolete illustrations.