The Government of India Act, 1833 (often known as the Charter Act, 1833) authorised the East India Company to enact laws for British India and to govern it as a government. A Law Commission was established that was headed by Lord Macaulay in 1833. It was tasked with the codification of laws for British India, which it completed by 1837.  The codification exercise was primarily influenced by the works of Jeremy Bentham who insisted on the necessity of codification for the sake of clarity and uniformity in the law and its application. Accordingly, the Indian Penal Code, 1860, the Code of Criminal Procedure, 1898 and the Indian Evidence Act, 1872 were drafted under the same auspices and the codification approach was symbolised through these legislative acts.

After the Independence of India from Great Britain in 1947, and the subsequent Partition of India and Pakistan, both India and Pakistan attempted to reform their criminal laws as an expression of decolonisation and in order to meet the expectations of their citizenry. Pakistan’s experience of re-writing and reforming the criminal laws was initially informed by religious considerations – colloquially referred to as ‘Islamisation’ of the legal system – which resulted in the Hudood laws of 1979, the Qanun-e-Shahadat Order, 1984, and the Qisas and Diyat laws of 1992. However, these were changed in subsequent years, with changes being shaped by global trends and necessities. Subsequent special criminal laws related to juvenile protection, protection from gender-based violence and terrorism were enacted in response to Pakistan’s international legal obligations and the need to update the law. 

On the other hand, India made efforts to amend its legislations from time to time in the 20th century. The Indian Penal Code was drafted by the Law Commission in 1850 and came into force in 1862. The Code has not undergone any major reforms until 2023. The first CrPC was drafted in 1882, and then amended in 1898. A series of reforms by the Law Commission were undertaken between 1958 and 1969, at the end of which it issued the 41st Law Commission Report. Amendments to the CrPC were then made in 1973, taking into account the Report’s findings. Similarly, the Indian Evidence Act was passed in 1872 and has not undergone significant amendments since then.

In 2023, these three statutes were re-written. The significance of the re-writing process and its potential impacts will be explored in this article.

Title Changes

Three major criminal laws have been renamed by the ruling Bharatiya Janta Party (BJP) with names in Sanskrit. By repealing the colonial names, new vernacular names of the laws have been provided; these are:

• The India Penal Code, 1860 (IPC) was repealed and re-enacted as ‘Bharatiya Nyaya Sanhita’ (BNS), which literally translates to the ‘Indian Justice Code’;
• The Code of Criminal Procedure, 1973 (Cr. P. C) was repealed and re-enacted as ‘the Bharatiya Nagarik Suraksha Sanhita’ (BNSS), which literally translates to the ‘Indian Citizen Protection Code’; and
• The Indian Evidence Act, 1872 was repealed and re-enacted as ‘the Bharatiya Sakshya Adhiniyam’ (BSA), which literally translates to the ‘Indian Evidence Law’.  

The Bharatiya Nyanya Sanhita (BNS)

The BNS largely retains the features of the repealed IPC. However, there are some notable additions, particularly with regard to offences against women and children and organised crime, along with some other modifications.

Under the BNS, there is a dedicated chapter on ‘Offences Against Woman and Child’ under Chapter V. Notably, the definition of rape under the law is not gender neutral and only criminalises rape against a woman under section 63. In contrast, Pakistan amended its provision on rape under the PPC to include a gender-neutral construction of the offence. Another notable addition to the BNS is section 72, which criminalises the disclosure of the identity of the victim of rape. Other added offences to the BNS under this chapter include sexual harassment (section 75), voyeurism against women (section 77), stalking and criminal intimidation (section 78). Under section 78, the law on criminal intimidation now includes the use of technology to intimidate individuals as well.

In terms of offences against children, the procuration of a child has been added as a new offence under section 96. Similarly, buying and selling children for prostitution, and engaging in illicit intercourse with children have been criminalised under sections 98 and 99 respectively.

The BNS has also added provisions on organised crime of different levels. The definition of organised crime added under section 111 is quite expansive and includes kidnapping, robbery, vehicle theft, extortion, land-grabbing, contract killing, economic offences, cybercrimes, and the trafficking of persons, drugs, weapons, and illicit goods. Petty-organised crime, including selling tickets, unauthorised betting and selling examination papers, is dealt with separately under section 112. 

Certain offences that Pakistan deals with under special legislation separate from the PPC have been incorporated in the BNS, rather than in separate legislation. The BNS also includes a provision on terrorism under section 113, which causes confusion with regard to the applicability of the Unlawful Activities (Prevention) Act, 1967, which previously dealt with terrorism offences in India. It is yet to be seen whether terrorism is to be tried under the new BNS upon its passing, or whether the Unlawful Activities Act will continue to apply. Similarly, offences of trafficking in persons and forced labour have been made part of the BNS between sections 143-146. However, in Pakistan, these are dealt with under special laws, with dedicated agencies established to deal with these offences. 

Other notable modifications to the BNS include the removal of the offence of sedition, and the addition of community service as a form of punishment under section 4. Altogether, the BNS has 358 provisions, whereas its predecessor IPC had over 500 provisions. While the date of coming into force is not provided in the bill, it is expected to come into force in mid-2024. 

The Bharatiya Nagarik Surakhsha Sanhita (BNSS)

The new criminal procedure code, the BNSS, similarly has some notable additions and modifications, particularly when one compares it to the CrPC in Pakistan.

Police powers have been significantly increased in the BNSS. For example, the state governments/provincial governments have been authorised to confer the power of executive magistrate to a Commissioner of Police or Superintendent of Police under sections 14 and 15 respectively. The commissioner system of police is prevalent in some cities in India and this law supplements the police laws on the subject. Furthermore, the BNSS provides for a directorate of prosecution for every state government under section 20. In contrast, in Pakistan, dedicated criminal prosecution services have been established in the provinces by special provincial laws. 

Similarly, the BNSS expands the powers to police for arrest without a warrant. These powers include cases when a police officer is obstructed from execution of his duty. Likewise, the arrest without warrant is permissible if the accused is requisitioned to be arrested on the request of another police officer (section 35). Under the same section, the law of notices has been added to authorise police officers to issue notices before arrest. Under section 106, the police has also been given the power to seize property for an investigation. They have also been given significant preventive powers under sections 168-172. Furthermore, the period of detention with the police for remand can be extended up to ninety days for heinous offences under section 187. Final reports must be submitted by the police to the Magistrate within two months in cases related to women and children, under section 193. 

Other notable additions include the definitions of ‘audio-video electronic’ and ‘electronic communication’ under sections 2(1)(a) and (i). This has facilitated certain stages in the criminal process, including the serving of summons through encrypted electronic communication, and/or with the use of digital signatures under section 63. Similarly, the search of a place shall be carried out preferably through audio-video electronic means under section 105. 

Apart from these, notable modifications include the right of the accused to appoint and meet a lawyer of his choice under section 38. In financial crimes, the BNSS provides clarification on the processes for international and national cooperation in criminal matters under section 112, and the strengthening of forfeiture law regarding property and proceeds of crime under sections 118-121. Under section 289, plea bargaining has been added as a permanent feature of criminal justice processes. Under section 398, all medical officers are obliged to treat victims immediately and free of cost under certain sections of the BNS and the Protection of Children from Sexual Offences Act, 2012. The state governments can notify witness protection schemes under section 398 and there is also a specific provision for making mercy petitions in death sentence cases under section 472.

The Bharatiya Sakshya Adhiniyam (BSA)

The BSA largely reproduces its predecessor Indian Evidence Act. Some modifications include the expansion of the terms ‘document’ and ‘evidence’ to include digital documents and electronic evidence, records and statements. 

Another significant change is the inclusion of both oral and written submissions as categories within secondary evidence, along with the evidence of an expert examining a document. Under section 39, the person dealing with retrieving, storing and processing of digital evidence has been included in the definition of an expert to protect technical persons from attending courts for testimonies. 

The admissibility of electronic evidence has been clarified, with detailed processes laid out in the BSA. Under section 63, the persons submitting electronic evidence have to certify the chain of custody (owned, or maintained, or managed, or operated) and the type of algorithm through which data or information is obtained (SHA1, or SHA256, or MD5, or any other) and has to be declared.

Thus, major changes to the law of evidence in India pertain predominantly to the categories of secondary evidence and to the admissibility of digital documents and electronic evidence. Read in line with the changes incorporated in the BNSS, the BSA seems to facilitate greater use of electronic evidence and reducing confusions pertaining to admissibility. However, the majority of the modifications to the Evidence Act remain largely cursory and the predecessor Act remains largely intact in the BSA. 

Concluding remarks

Though the aforementioned laws have been passed by the Parliament, these have yet to come into force on a date to be notified. With India and Pakistan sharing a colonial history, the penal codes for both were passed as legislation in 1860 and have been used ever since. By its nature, criminal law requires updating with the rising use of technology to commit offences, as well as with emerging crimes requiring a proactive legislative approach. This inevitably has implications on procedural and evidentiary matters as well, as new forms of evidence must be scrutinised for admissibility during criminal trials. Thus, criminal codes have to be revised and updated to reflect modern times.

The reform process is easier said than done, as criminal practice often becomes entrenched around these codes and jurisprudence develops around said codes as well. Changes are therefore met with resistance and pushback from the legal community and the judiciary, who require regular training and continuing education on emerging trends in criminal law. Bearing this in mind, while it remains to be seen what sort of impact the three new laws have for India’s criminal jurisprudence, the redrafting of the laws is a highly commendable effort by the Indian government.

Centre for Criminal Justice Sector Reform & Capacity Building (C3) blog