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BHARATIYA SAKSHYA BILL 2023 : AN OVERVIEW

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India was ruled by British before its independence and continues to be ruled by British-made laws.

The fact that most of the laws that are in force now are made during the colonial period is not unknown to us. The  Indian Contract Act 1872, Indian Partnership Act 1932, Indian Penal Code 1860, Indian Evidence Act, 1872 etc. are all glorious examples of how still, India follows the colonial rules and regulations. Keeping this background, the Home Minister Sri. Amit Shah ji, introduced three bills – Bharatiya  Sakshya Sanhita, 2023 (which will replace Indian Evidence Act, 1872), Bharatiya Nagarik Suraksha Sanhita, 2023 (which will replace CrPC) and Bharatiya Nyaya Sanhita, 2023 (which will replace IPC) that, if accepted, will mark the new era of Indian sovereignty by reforming Criminal Law in India.

Colonial Criminal law was made hundreds of years ago  and  only with the view to safeguard the British Rule in India. Amit Shah while introducing  those three bills  remarked, “ From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. I can assure the House that these bills will transform our criminal justice system. The aim will not be to provide justice.” He further added, “I assure the House that these three laws will have an Indian Spirit and Ethos, and will bring a big change in our criminal justice system. To summarize, the new bills will have more humanitarian and Indian ethical values instilled in them.

Bharatiya Sakshya Sanhita, 2023

‘Sakshya’ means evidence or witness. Bharatiya Sakshya Sanhita, 2023 if accepted, shall replace the Indian Evidence Act, 1872.  The old Act was not able to address the problems that came with time and technology. Thus, this Bill was proposed so as to  deal with new problems and the developments of technology. The objective of the Act is to consolidate and to provide for general rules and principles of evidence for fair trial.

The new Bill consists of 170 sections as compared to the old 168 sections. It provides for 23 amended sections, 1 new section and repeal of 5 sections.

What shall change if the Bill is accepted?

1.Changes in Definition Clause:

  • There shall be only one definition clause in the Act that will be under Sec. 2 (1) (a) to (m) and 2(2) of the Proposed Bill. Previously, definition clause extended from sections 3 to 4.
  • The proposed bill under Sec. 2(1)(c) proposes to accept electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices as documents and thereby as evidence under the Sec. 2(e)(ii). This can be seen as an important step considering how India has become more digitised.
  • The new Bill has also removed the definition of a fact “disproved” and of “India”. However, it provides that the words used here, but not defined shall carry the same meaning as given under IT Act, 2000, Bharatiya Nagarik Suraksha Sanhita, 2023 and Bharatiya Nyaya Sanhita,

2.Changes in the law relating to facts in issue and relevancy of facts

  • Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding (Sec. 24 of the Old Act) has undergone some changes in the New Bill. Under Sec. 22 of the New Bill, New Proviso Clauses have been added that specify that if the confession is made after such inducement, etc. has been fully removed is relevant (S.28 of the Old Act). Such confession does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it or if it made in a condition where the person was drunk (S.29 of the Old Act).
  • The new Bil merges the old sections 25 and 26 relating to confession to police-officer need to be proved and that confession made while being in police custody is invalid, unless made before a Magistrate. This has been included in the form of 23(1) and (2).
  • Under Sec. 32 of the new Bill, e-books or any other electronic form of books is considered is relevant.
  • The old S.45A. Opinion of Examiner of Electronic Evidence which was a separate section then, has now been included under 39(2) of the Bill.
  1. Changes in Proof
  • Previously 57(6) included all the Courts and Tribunals, Courts of Admiralty etc. by Courts to take Judicial Notice. In the new Bill, these have been included in separate sub-sections (d) and (e) of Sec. 52.
  1. Changes relating to evidence
  • Section 57 of the New Bill that provides the definition of Primary evidence, now includes more explanations as compared to the old Act. The new provisions include explanation regarding admission of electronic or digital data or video recording as primary evidence.
  • Secondary evidences mentioned in Sec. 58 of the Bill, now provides for oral admissions, written admissions and also evidence of a person who has examined a document, which weren’t mentioned in the old Act.
  1. Changes in Presumptions
  • The old Section 88 Which dealt with the presumption as to telegraphic messages, has now been replaced by the new bill under Sec. 90 as electronic messages sent through e-mails. This can be seen as an improvement and an approach to adapt with the change of technology through time.
  • The old Section 113 that dealt with the Presumption as to cession of territory, has been repealed completely.
  1. Changes in evidence relating to Witnesses
  • It is also very interesting to note that in sec.124 of the Bill which relates to the testification by witness, the term “person with mental illness” has been used as against the old “lunatic.” It can be seen as a woke approach to address the issue of mental illness amongst the people that make them unfit to testify as witnesses.

Advantages:

The new Bill has certain plus points as compared to the old Act.

  • Addresses issues of admissibility of evidences in electronic form – The old Act was not this open to e-evidences. The Bill also widens the scope of secondary evidence by including evidences in electronic form and such copies (soft copy) made thereof.
  • It has more Indian-ness in it: The Bill has more Indian-ness than the Act, it must be noted that all the words that relate to the Crown, British Queen, General Gazette etc. are all replaced by words like “India”, “President”, Official Gazette etc.
  • More sensitive to mental illnesses – In the above-mentioned section, the word ‘lunatic’ has been replaced by ‘person suffering from mental illnesses.’ This is indeed, an advancement of the society. For so long, it has been a taboo-ed topic in India. However, the question that if mental illnesses include panic disorder or Depression or such other issues are included or not, cannot be known as yet.
  • The old Act had become obsolete – Many sections in the old Act unnecessarily related to British Crown, British Queen, Common wealth, cession of territory etc. As the time passed by, there have changes since those Acts; we gained freedom and we merged parts of India to form this Union of States. It is now quite irrelevant to have mention of British queen or presumption as to cession of territories etc.
  • By repealing the British laws, India can truly emphasise its sovereignty

CHALLENGES:

  • Digital record can be easily tampered: Digital records such as video recordings, photos or even documents can easily be edited; with the advent of AI nothing seems impossible nowadays. So, the evidence given by digital means may not be 100% true all the time.
  • Breach of privacy: Since there is a lot of pressure on use of electronic means in these Bills, it can lead to infringement of Privacy Rights of the people. Where there is electronic data, there is always a risk of hacking and cybercrime.
  • Lots of law practitioners are not tech-savvy – Although India has become digitised, a huge part of India still remains technically challenged. Old Advocates or judges may not have clear understanding of digital evidence or digital record. There may be errors regarding this as well.
  • Yet to be accepted: As it has been said, it is only a Bill that is yet to be passed. It will become the law only after it is finally signed by the President. So, currently, it is ne of the challenges.

CONCLUSION

Although the Bill has its own disadvantages and the reform of Criminal Law in India is a huge step, it is for the greater good. The Bill, if accepted, shall provide e-data, e-evidences etc. and it is important since India has now become digitised.

When even schools and colleges have moved online, our law lagged behind in the race of development. This step will take us forward in the long-run. This is the true “Indian” Evidence Act or the Bharatiya Sakshya Adhiniyam.

The Bill is yet to be accepted, it has only been introduced by Amit Shah. It still has to be accepted by both the Houses and then finally by the President; only then can it become the Act.

Jai Hind!

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Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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BHARATIYA NAGARIK SURAKSHA SANHITA BILL, 2023: An Overview

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ABSTRACT

This research paper critically examines the significance, motivations, and implications of the Bharatiya Nagarik Suraksha Sanhita Bill of 2023, which aims to replace the outdated Criminal Procedure Code of 1898 with comprehensive changes across its 533 sections, including amendments to 160 sections, introduction of 9 new sections, and repeal of 9 sections. The bill’s introduction aligns with India’s transition from 75 to 100 years of independence, resonating with the Prime Minister’s call to eliminate remnants of subjugation and infuse an authentic Indian essence into the criminal justice system. The paper analyzes proposed amendments like technological integration, communication tools, protective measures, and handcuff regulations, as well as provisions related to mercy petitions, non-arrest sampling, police detention, and trials in absentia. While acknowledging the bill’s commendable efforts to modernize the system and expedite legal proceedings, the paper also highlights potential drawbacks, including evidence misuse, privacy concerns, and challenges in implementation. It concludes by stressing the need for a balanced approach that upholds individual rights while enhancing justice delivery through holistic legal reforms.

INTRODUCTION

In a significant move aimed at modernizing and strengthening India’s legal infrastructure, Mr. Amit Shah, the Minister of Home Affairs and Minister of Cooperation, took an exceptional stride by presenting three revolutionary bills in the Lok Sabha on August 11, 2023. These legislative proposals comprise the Bhartiya Nyaya Sanhita Bill 2023, the Bharatiya Nagarik Suraksha Sanhita Bill 2023, and the Bharatiya Sakshya Bill 2023, demonstrating the resolute dedication of the government to reforming the criminal justice system. By emphasizing the replacement of outdated laws inherited from the colonial era—the Indian Penal Code of 1860, the Criminal Procedure Code of 1898, and the Indian Evidence Act of 1872—these bills indicate a profound shift towards a legal framework that is fair, impartial, and centered around the well-being of citizens.

The Bharatiya Nagarik Suraksha Sanhita Bill of 2023, intended as a substitute for the Criminal Procedure Code of 1898, initiates comprehensive modifications within its 533 segments. It is noteworthy that the bill makes revisions to 160 sections, introduces 9 novel sections, and abolishes 9 sections.

The unveiling of these legislations occurs amidst a period characterized by swift technological progress, shifts in societal dynamics, and evolving international norms. The current regulations, established during the British colonial period, have frequently faced censure for their antiquated nature and lack of relevance to modern requirements. The fresh bills mirror the administration’s desire to harmonize the legal framework with the demands of the 21st century, highlighting legal architectures that prioritize citizens, encompass gender neutrality, embrace digital modernization, and emphasize justice as opposed to mere punitive measures.

ANALYSIS

 

WHAT PROMPTED THE INTRODUCTION OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL?

The Azadi ka Amrit Mahotsav will conclude on August 15, 2023, marking the transition from 75 to 100 years of India’s independence, commencing on August 16. During his speech on August 15, 2022, from the Red Fort, the Prime Minister of India outlined the Panch Pran, or five vows, before the nation. Among these, one pledge is to eliminate all remnants of subjugation.

Spanning from 1860 to 2023, India’s legal framework for the criminal justice system persisted based on statutes enacted by the British Parliament. In light of this historical context, three bills have been introduced, aligning with the fulfillment of one of the five vows – infusing a distinct Indian essence to catalyze substantial transformation within the country’s criminal justice system.

SEVERAL KEY ALTERATIONS SUGGESTED IN THE PROPOSED AMENDMENTS TO THE CRPC INCLUDE:

  • Enhanced Technological Integration: The proposed amendments emphasize an increased utilization of technology in legal proceedings. This includes conducting trials, appeal procedures, and recording depositions, including those of public officials and law enforcement personnel, through electronic means. Accused individuals’ statements can also be documented via video conferencing. Electronic formats may be employed for summonses, warrants, documents, police reports, and statements of evidence.
  • Incorporation of Communication Tools: The bill introduces the concept of electronic communication, encompassing “communication devices.” As per court or police directives, individuals may be required to present any digital evidence-containing document or device for investigative purposes.
  • Handcuff Use Regulation: In cases involving repeat offenders who have escaped custody or committed serious crimes like organized criminal activities, terrorism, or offenses against the state, police officers may be authorized to employ handcuffs during arrests.
  • Specific Protective Measures: A prominent safeguard against arrests, currently outlined in Section 41A of the CrPC, will be renumbered as Section 35 and revised. An additional clause mandates that individuals cannot be arrested without prior permission from an officer ranked no lower than Deputy Superintendent of Police (DSP) if the offense carries a punishment of less than 3 years or if the individual is over 60 years old.
  • Mercy Petitions Framework: The bill establishes procedures concerning the timeframes for submitting mercy petitions in cases involving death sentences. Following notification from prison authorities about the disposal of a death row convict’s petition, the convict, their legal heir, or relative can submit a mercy petition to the Governor within 30 days. If denied, the person can appeal to the President within 60 days. No legal recourse against the President’s decision is permissible.
  • Prosecution Sanction: The government must decide on granting or denying sanction to prosecute a public servant within 120 days of receiving a request. Failure to do so will result in automatic sanction being assumed. Sanction is not mandated in cases involving offenses such as sexual crimes or trafficking.
  • Procession-Related Regulations: While the provisions empowering district magistrates under Section 144 of the CrPC remain unchanged, the power to prohibit carrying arms during processions, mass drills, or training sessions is omitted from Section 144A.
  • Non-Arrest Sampling: The proposed amendments permit magistrates to order individuals to provide samples of their signature, handwriting, voice, or finger impressions for investigative purposes without necessitating their arrest.
  • Police Detention Provisions: Provisions are outlined to empower the police to detain or remove individuals who resist, refuse, or ignore lawful directives during preventive actions.
  • In Absentia Trials: The framework for trials in absentia is outlined, particularly in stringent anti-terrorism legislation like the Unlawful Activities (Prevention) Act (UAPA). In such cases, the burden of proof shifts to the accused, requiring them to prove their innocence rather than the state having the responsibility to prove guilt.

 

IMPORTANCE OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

This legislation holds immense significance as it aims to consolidate and modify the legal provisions governing criminal procedures. It introduces explicit timelines for expeditious investigations, trials, and verdicts, ensuring a swift dispensation of justice.

The bill’s essence lies in its commitment to hastening the delivery of justice, a crucial aspect in today’s fast-paced world. It aligns seamlessly with the Digital India initiative of the government, embracing the use of technology to enhance legal processes. For instance, the bill grants admissibility to digital or electronic records as evidence, granting them the same legal weight and enforceability as traditional paper records.

A notable feature is its focus on citizen-centricity, exemplified by the provision for promptly supplying a First Information Report (FIR) to complainants. Furthermore, victims are kept informed about case progress through digital means.

The bill introduces the concept of a summary trial for minor offenses, enabling a swifter resolution in such cases. Additionally, the innovation of a ‘Zero FIR’ is significant. This provision empowers individuals to lodge an FIR at any police station, transcending jurisdictional limitations. Moreover, it mandates the transfer of this FIR to the appropriate police station within 15 days, ensuring efficient handling of cases regardless of the location of the crime.

 

DISADVANTAGES OF THE BHARATIYA NAGARIK SURAKSHA SANHITA BILL:

While the Bharatiya Nagarik Suraksha Sanhita Bill brings about notable reforms in the criminal justice system, it is crucial to critically examine its potential drawbacks and concerns. These disadvantages can raise questions about the effectiveness and impact of the proposed changes:

  • Potential for Misuse: The increased use of technology, while beneficial in many ways, can also open avenues for manipulation and misuse. The admissibility of digital evidence might inadvertently allow fabricated or tampered evidence to be presented, raising questions about the reliability and authenticity of such records.
  • Privacy Concerns: The greater emphasis on electronic communication and digital records could potentially infringe upon individuals’ privacy rights. The collection and storage of electronic evidence raise concerns about data security and the potential for unauthorized access or breaches.
  • Summary Trials and Fairness: While summary trials are meant to expedite proceedings, they might compromise the principles of a fair trial. The swift resolution of cases might not allow adequate time for gathering evidence, cross-examination, or presenting a comprehensive defense, potentially leading to unjust outcomes.
  • Zero FIR Implementation Challenges: The provision of filing a ‘Zero FIR’ at any police station, although seemingly progressive, might pose practical challenges in terms of coordination between different police stations and determining the appropriate jurisdiction for investigation. The transfer of cases within 15 days might not always be feasible, causing delays and confusion.
  • Lack of Judicial Oversight: The bill places considerable responsibility on law enforcement agencies to decide whether to arrest an individual or not. This might lead to situations where the threshold for arrests becomes arbitrary, potentially resulting in the violation of individual rights and liberties.
  • Absence of Comprehensive Torture Prevention: The bill falls short in addressing comprehensive measures to prevent torture and custodial violence, which are significant concerns. The focus on speedy justice should not come at the expense of safeguarding the rights and dignity of individuals in custody.

 

CONCLUSION

In conclusion, while the Bharatiya Nagarik Suraksha Sanhita Bill presents commendable efforts to modernize and streamline India’s criminal justice system, it is important to acknowledge the potential disadvantages that come with such extensive reforms. Striking a balance between expeditious justice delivery and safeguarding individual rights is a delicate task. As the legal community and society as a whole engage in discussions surrounding these proposed changes, it is imperative to carefully address these concerns and ensure that the spirit of justice prevails, upholding both the rule of law and the protection of citizens’ rights.

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Written by- Mansi Malpani