From Court room petitions to constitutional questions: Why the new criminal codes are facing immediate pushback?
Before examining the intricacies of the new criminal codes and the legal challenges associated with them, it is important to understand certain foundational terms.
Law is a broad concept encompassing all rules enforceable by the state. It may derive from the Constitution, parliamentary or state legislation, or subordinate rules and regulations.
A statute or Act refers to a formal written law enacted by Parliament or a state legislature. The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) are all statutes.
A code is a systematic collection of laws relating to a specific subject. The BNS governs substantive criminal law, the BNSS governs criminal procedure, and the BSA governs the law of evidence. Therefore, these are not only laws and statutes but also codes.
On 1 July 2024, the landscape of the Indian criminal justice system underwent a significant transformation with the implementation of three new criminal codes: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA). These replaced the earlier colonial-era legislations—the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act.
The earlier framework was often criticised for being overly punishment-centric, contributing to delays in trials, overcrowding of prisons, and systemic inefficiencies. The new codes aim to adopt a more reformative approach, incorporate technological advancements into investigation and adjudication, and enhance procedural efficiency.
The new framework introduces several notable changes: Recognition of offences such as terrorism, organised crime, and mob lynching; Enhanced punishments for crimes against women and children; Provision for electronic First Information Reports (e-FIRs) and zero FIRs; Introduction of community service as a form of punishment for minor offences.
The Indian Penal Code was drafted by the First Law Commission under the chairmanship of Thomas Babington Macaulay pursuant to the Charter Act of 1833. It drew heavily from English law while incorporating certain indigenous legal principles. It came into force in 1862 and continued, with amendments, even after independence.
The Code of Criminal Procedure traces its roots to 1861 during British rule, with later revisions in 1898. Post-independence reforms culminated in the enactment of the modern CrPC in 1973, aimed at making criminal procedure more efficient and aligned with contemporary needs.
The Indian Evidence Act, 1872, drafted by James Fitzjames Stephen, was enacted to standardise evidentiary rules across India, replacing diverse customary practices. It was significantly influenced by English legal principles and has since undergone multiple amendments.
The BNS introduces new offences, removes certain provisions, and revises punishments: Terrorism has been defined as acts threatening the sovereignty, unity, or security of India, or causing widespread fear among the public. Mob lynching has been specifically criminalised with severe penalties, including life imprisonment or death. Attempt to commit suicide with the intent to obstruct a public servant has been criminalised. Community service has been introduced as a punishment for petty offences. Consensual homosexual acts remain decriminalised pursuant to the judgment in Navtej Singh Johar v. Union of India; the BNS does not reintroduce criminalisation. The offence of adultery has been omitted. Certain provisions relating to children have been made gender-neutral. Dissemination of false or misleading information has been criminalised. The scope of offences relating to acts against the state (earlier sedition) has been broadened. Punishment for causing death by …….,,negligence has been increased.
The BNSS introduces procedural reforms: Use of electronic means in investigation, inquiry, and trial has been encouraged. Restrictions have been placed on release on personal bond in serious cases. Arrest is not mandatory in all cases; appearance may be secured through bonds. Community service has been formally defined as court-directed, unpaid work benefiting society. Terminology changes, such as replacing “mental illness” with “unsoundness of mind,” have been introduced. Searches require audio-video recording in certain circumstances. Timelines have been prescribed (e.g., judgments within 30 days of arguments). Medical examination provisions have been expanded. Forensic investigation has been made mandatory for serious offences. Zero FIR procedures have been streamlined. Electronic FIR registration has been introduced. Witness protection schemes have been mandated. Police custody can now be sought in a fragmented manner within a broader time window. Under CrPC, police custody was limited to a maximum of 15 days and had to be exercised within the first 15 days of arrest (often as 5+3+7 days), after which only judicial custody was permissible. Under the BNSS, such custody may now be granted at any time, while the total days in police custody remain the same, within a period of 40 or 60 days (depending on the nature of the offence), thereby expanding the scope of police control and raising concerns regarding potential misuse.
The BSA modernises evidentiary law: Electronic records are recognised as equivalent to traditional documentary evidence. Digital and electronic evidence has been formally integrated into the evidentiary framework. Joint trials may proceed even in the absence of certain co-accused under specific conditions.
Several definitions remain vague and broad, potentially leading to arbitrary interpretation and raising concerns under Article 14 (equality before law). The definition of terrorism includes ambiguous terms such as “economic security,” which may invite overreach. Lack of clarity regarding concepts such as community service may result in inconsistent sentencing. Overlapping applicability with special legislations may create excessive discretion for enforcement agencies. While cyber offences are addressed under the Information Technology Act, 2000, the absence of integrated treatment within the BNS raises concerns about coherence. The framework does not comprehensively address emerging issues such as AI-generated misinformation and deepfakes. Rape provisions remain gender-specific, raising concerns about inclusivity and equal protection.
Expanded police powers, including extended custody frameworks, raise concerns under Article 21 (right to life and personal liberty). Search and seizure provisions in certain cases may weaken judicial oversight. Increased reliance on digital processes raises privacy and data protection concerns. Extended timelines for investigation (up to 180 days in serious cases) may lead to prolonged pre-trial detention. Property seizure powers lack robust checks and balances. The cumulative expansion of procedural powers may disturb the balance between state authority and individual rights.
Heavy reliance on electronic evidence raises concerns regarding authenticity, tampering, and evidentiary reliability. Digital infrastructure disparities may disadvantage rural and economically weaker populations. Increased scope for state surveillance may affect privacy and freedom of expression. Lack of clarity regarding certification authorities and procedures for electronic evidence creates ambiguity.
The introduction of the three new criminal codes marks a significant step towards reforming India’s overburdened criminal justice system. The shift towards a more reformative approach, including the introduction of community service and digital integration, reflects a conscious effort to modernise the system.
However, legal reform must be accompanied by robust procedural safeguards. The expansion of state powers must be balanced with constitutional guarantees, particularly those under Articles 14 and 21. Addressing ambiguities, strengthening safeguards, and ensuring equitable implementation will be essential to prevent misuse and uphold the rule of law.
A legal system may never be perfect, but it can evolve towards greater fairness and efficiency. The success of these reforms will ultimately depend on how effectively their shortcomings are addressed in practice.
(The Author is the student at School of Law, University of Kashmir. He can be reached at amaanw82@gmail.com)
