Bhartiya Nagarik Suraksha Sanhita: Decolonising India’s Criminal Justice System

The idea of ‘Yato Dharmastato Jayah’, i.e. “where there is Dharma there will be victory”, is the underlying principle guiding India’s civilisational jurisprudence since time immemorial and has found its place today as the motto of the Supreme Court of India.

Bharat has the world’s most ancient legal system, unrivalled in its venerable and esteemed lineage. Some of the greatest jurists and lawgivers of the human race – Manu, Yajnavalka, Brihaspati, Katyayana, Kautilya – were born in ancient India and gave shape and structure to a legal system that lasted for centuries and still inspires Indian governance and jurisprudence. Ancient India had a hierarchy of courts much similar to what we have today. According to Brihaspati Smriti, at the lowest level were the family courts, followed by the court of local/provincial judges. This was followed by the court of the Chief Justice, also known as the ‘Praadivivaka’, followed by the King’s court. Right from the king to the judges, bureaucrats, soldiers, traders, and citizens, everyone was assigned duties, and there were checks and balances in place to ensure that ‘Dharma’ (righteous law) was followed. In fact, ‘Raj-dharma’ (duty of the king) took precedence over ‘Raj-neeti’ (politics), emphasising the importance of the rule of law and the social contract between the governing and the governed.

But over time, after centuries of invasions and colonisation, many foreign elements were gradually added to the Indian legal system. Islamic law was introduced in most parts of the Indian subcontinent after the Arab invasions. Similarly, European laws, primarily the English Common Law, were imposed on India by the colonial powers. What evolved was the modern Indian legal system, which for the most part, is an adaptation of the English Common Law inherited from the British imperialists, with some remnants of Islamic/Mughal laws. For example, as recently as April 2023, complex Persian and Urdu words were used to file a simple FIR in Delhi. Archaic words like Rojnamcha, Saredast Surat, Majroob, and Mulaki, which are not even part of the vocabulary for about 99% of Indians, were being used in the FIRs. The use of black robes as a dress code by Indian lawyers and judges is also a colonial legacy. Such examples are but a glimpse of how the Indian legal system is still so deeply entrenched in coloniality. The criminal justice system, being an integral part of the larger judicial system, is naturally not bereft of it.

Since independence, the Indian State failed to shed much of its colonial hangover. Attempts to reform were few and symbolic. But this has changed in the past 9 years. Under the Narendra Modi Government, there has been a drastic shift in decolonisation attempts across the institutions. As India celebrates 75 years of independence as Azaadi ka Amrit Mahotsav, Prime Minister Narendra Modi has given the clarion call of ‘Panch Pran’, or the five vows that will usher India into Amrit Kaal. One of the vows among the five is the removal of colonial mindset and ending all signs of slavery. In line with this, the Modi Government plans to overhaul India’s criminal justice system through three bills recently introduced in the parliament. These bills aim to replace the British-era criminal laws with indigenous laws that are made in India and made for India.

On 11th August 2023, Union Home Minister Amit Shah introduced the three bills – the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Bharatiya Nyaya Sanhita (BNS), 2023, and the Bharatiya Sakshya Bill (BSB), 2023. These bills seek to replace the Code of Criminal Procedure (CrPC), 1973, the Indian Penal Code (IPC) 1860, and the Indian Evidence Act (IEA), 1872 respectively.

Since 1860, Macaulay’s criminal laws were colony-centric with a pro-government approach, where the focus was to punish the offenders and safeguard the interests of the colonial government, above all else. The new criminal laws will transform that and instead of punishing, it will focus on delivering justice, with a citizen-centric approach. While the BNS deals with the criminal code (IPC) and the BSB deals with evidence (IEA), the BNSS deals with the most important part, which is the procedural side of the law. Therefore, some of the salient features of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 are discussed below.

Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

This bill repeals the CrPC, which is currently the main legislation on procedure for the administration of substantive criminal law in India. The Code provides for the procedure for arrest, prosecution, and bail for offences under various Acts including the Indian Penal Code, 1860. Various changes have been brought under the BNSS, the core of them are as follows:

1. Prompt Delivery of Justice/Timeline for Procedures

a. To ensure speedy justice, chargesheets must be filed within 90 days, with provisions allowing for an extension of up to an additional 90 days.

b. To ensure the timely completion of investigations, the probe is to be finalized within 180 days, after which the case is to be forwarded for trial.

c. For prompt delivery of judgements, it is mandated that judgments must be delivered within 30 days after the trial concludes.

d. The new section 184(6) of BNSS, which corresponds to the old section 164A(6), now imposes a time-bound medical examination of a rape victim, replacing the term ‘without delay’ with ‘within seven days.’

2. Greater Use Of Technology/Digitalisation

a. In line with advancing PM Modi’s vision of a Digital India, a significant addition to the BNSS is Section 532. This new provision allows for the digitalization of all aspects of trials, inquiries, and proceedings, including the recording of evidence, examination of parties, issuance, service, and execution of summons and warrants, as well as various other related processes.

b. Under Section 153 of BNSS, executive magistrates can serve notices online.

c. Similarly, the supply of police reports and other investigation-related documents can be carried out digitally, as specified in Sections 193(8) and 230 of BNSS.

3. Progressive Reforms/Safeguards/Women’s Safety

a. The BNSS is also aligning itself with modern practices by introducing amendments related to the utilization of forensic science in crime investigations. In Section 349 of BNSS, the scope has expanded to include the collection of not only specimen signatures or handwriting samples, as was the case in the previous version of the code, but also fingerprints and voice samples.

b. Under Section 176(3) of BNSS, when the police receive information about the commission of a crime punishable for more than 7 years, it is mandatory for a forensic team to visit the scene and collect samples as well as cause videography of the process. This will ensure that evidence is not tampered with.

c. An important safeguard has been introduced with the inclusion of Section 105 in the BNSS. This section mandates that police officers conducting searches under Section 185 must electronically record the proceedings of the search and subsequently transmit the record to the relevant magistrate. This provision serves to prevent any potential abuses during police search operations, ensuring transparency and accountability.

d. Section 193(3) of the BNSS mandates that the police must keep the informant/victim informed about the progress of the investigation within 90 days, and this communication can be facilitated electronically.

e. Additional safeguards have been provided for the recording of statements of a woman by a judicial magistrate. If a woman is giving such a statement, it should be recorded by a female judge.

f. The proviso giving safeguards for women arrestees under subsection (1) of Section 43 of BNSS has been expanded. Now, information regarding such a woman’s arrest needs to be given to her relatives or friends.

4. Removal of Archaic and Insensitive Terms- substitution of outdated and insensitive language like ‘lunatic person’ or ‘person of unsound mind.’ These references have been replaced with more empathetic terms, such as ‘having an intellectual disability’ or ‘person with mental illness.

5. Removal of obsolete sections- BNSS does away with many obsolete provisions in the CrPC such as section 153 of CrPC where police were granted power to enter and search any place without a warrant to inspect or search for accuracy of weights and measuring instruments.

6. Restrictions on Punishment Conversion- places a limit on conversion of death sentences to life imprisonment and pardon for life imprisonment to within seven years.

7. Trial in Absentia- Empowers Session Courts to declare individuals’ absconders and proceed with trials in their absence.

Towards Legal Aatmanirbharta

The three bills have been forwarded to the Standing Committee on Home Affairs for review. It is anticipated that these bills will be presented for discussion in Parliament during the upcoming winter session. The Bills have been in development for two years, with input and consultation sought from a broad spectrum of stakeholders, including those in academia, law enforcement, practitioners, and judges spanning from the Appellate to the Courts of first instance.

India became the world’s most populated country in April 2023. Meanwhile, as of July 2023, more the 5 crore cases are pending in the Indian courts. Two things are clear from this – (i) With the ever-increasing population, rise in economy, trade, technology and the changes in society, the number of legal cases will also increase – (ii) The coloniality of India’s legal system inherited from the British imperialists has been one of the major roadblocks in the timely dispensation of justice. The new criminal laws help solve a major part of this dilemma, and the ensuing reformation of India’s criminal justice system will go a long way in the decolonisation of India as a whole. It will revive Bharat’s civilisational jurisprudence, which has been inherent in its ethos since time immemorial, and pave the way for legal Aatmanirbharta, i.e. laws made by India and for India.