CRIMINAL LAW AND THE BHARATIYA TRINITY

Submitted by,
NAME:- Abhishek. S. M
CLASS:- 2nd Year, BA LLB (A)
E-MAIL:- [email protected]

August 11, 2023 was an important day in the minds of jurists, old, young and upcoming. This
day witnessed the emergence of three new Bills in the Parliament, which can write its own
history on the autobiography of the Indian Criminal Law. The Bharatiya Nyaya Sanhita Bill of
2023, the Bharatiya Nagrik Suraksha Sanhita Bill of 2023, and the Bharatiya Sakshya Bill of
2023, which, may or may not, the Indian Penal Code of 1860, the Criminal Procedure Code of
1973, and the Indian Evidence Act of 1872 respectively, can be collectively termed as the
“Bharatiya” trinity. These Bills can further decide the course of the existence, functioning and
the implementation of the Indian Criminal Law.

The Indian Penal Code of 1860, the Criminal Procedure Code of 1973, and the Indian Evidence
Act of 1872 are being planned to be disposed, because of its emergence from the colonial world
and its colonial nature. The concerned people are trying to change the numbers, not only in the
Bills, but also in its implementations.

Bharatiya Nyaya Sanhita Bill of 2023

The Bharatiya Nyaya Sanhita Bill of 2023 is intended to replace the Indian Penal Code of 1860,
which is an indispensable portion of criminal law for jurists, existing and upcoming. 1It consists
of 356 sections [instead of the 511 sections in the Indian Penal Code], in which 175 sections of
old law have been amended, 8 sections added and 22 sections repealed.

1
Ministry of Home Affairs, Union Home Minister Shri Amit Shah Introduces Three Bills in the Parliament (Aug,
11, 2023, 7:32 PM), https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1947941
Primarily, the first two chapters in Indian Penal Code, 2‘Preliminary’ and ‘General Explanations’
are joined to include major definitions in the first chapter of the Bill. The term ‘Court of Justice’
has been substituted as ‘Court’. 3The term ‘Trans-genders’ has been included in the definition of
‘Gender’. If the Indian Penal Code upheld sedition as a serious offence, the new Bill denies its
existence as an offence. Also, the chapter “Of Offences Relating to Weights and Measures“
[Chapter XII of the Indian Penal Code] have been avoided. The offences against women and
children, which came earlier under the sub-head “Sexual Offences” in the chapter “Of Offences
Against the Human Body” [Chapter XVI of the Indian Penal Code], has been made a separate
chapter in the new Bill [Chapter V]. Three new sections have been introduced in Chapter VI of
the Bill [Of Offences Affecting the Human Body]; Organized Crime [Section 109], Petty
Organized Crime or Organized in General [Section 110], and Offence of Terrorist Act [Section
111]. Moreover, the sub- chapters in Chapter XVI of the Indian Penal Code; ‘Of Hurt’ and ‘Of
Wrongful Restraint and Wrongful Confinement’, have been integrated into a single head ‘Of
Hurt’ in Chapter VI of the Bill. The title of Chapter XII of the Indian Penal Code, ‘Of Offences
Relating to Coin and Government Stamps’ has been extended in the Bill as ‘Of Offences
Relating to Coin, Currency Notes, Bank Notes, and Government Stamps’. The sections related to
the offence of Extortion, Criminal Breach of Trust, Stolen Property, and Defamation have been
reduced to 1. Earlier, in the Indian Penal Code, snatching was not recognized as an offence, but
now it is in the Bill. So, instead of relating the number 302 with the offence of murder, it should
be substituted to snatching. Crimes against children have been given utmost importance in the
Bill. For example, for the offence of buying minors for purposes of prostitution, earlier in the
Indian Penal Code, the term of imprisonment was up to 10 years [Section 373] , but in the Bill, it
is further extended to 14 years [Section 97].

Bharatiya Nagarik Suraksha Sanhita of 2023

The Bharatiya Nagarik Suraksha Sanhita Bill of 2023 is intended to replace the Criminal
Procedure Code of 1973, which lists out all procedures essential for the resolution of criminal
cases. It consists of 533 sections, in which 160 sections of the old law have been amended, 9
sections added and another 9 sections repealed.
2
Government of India, The Indian Penal Code (Oct, 6, 1860), file:///C:/Users/sabhi/Desktop/LAW/A1860-45.pdf
3
Legislation Department, Bharatiya Nyaya Sanhita Bill 2023 (Aug, 11, 2023),
file:///C:/Users/sabhi/Desktop/LAW/Bharatiya_Nyaya_Sanhita,_2023.pdf
Changes have been introduced in 4Chapter II of the Bill [Constitution of Criminal Courts and
Offices]. 5Chapter IV of the Criminal Procedure Code, which was divided into ‘Powers of
Superior Officers of Police’ and ‘Aid to the Magistrates and Police’, has been integrated into one
single chapter. The sub chapter ‘General Provisions Related to Searches’ in Chapter VII of the
Criminal Procedure Code [Processes to Compel the Production of Things] have been avoided.
The chapter ‘Reciprocal Arrangements for Assistance in Certain Matters and Procedure for
Attachment and Forfeiture of Property’, which was earlier a part of Chapter VII of the Criminal
Procedure Code, has been made a separate chapter. Part B of Chapter XVII of the Criminal
Procedure Code [The Charge], which is ‘Joinder of Charges’ has been avoided. The title of the
Chapter XXV of the Criminal Procedure Code [Provisions as to Accused Persons of Unsound
Mind] has been rewritten as ‘Provisions as to Accused Persons with Mental Illness’. More
sections have been added to Chapter XXVIII of the Bill [Provisions as to Offences Affecting the
Administration of Justice’, by integrating with Chapter XXVII of the Criminal Procedure Code
[The Judgement]. The subcategories of Chapter XXXII of the Criminal Procedure Code
[Execution, Suspension, Remission and Commutation of Sentences], which are ‘General
Provisions Regarding Execution’ and ‘Suspension, Remission and Commutation of Sentences’,
have been integrated into a single subcategory ‘General Provisions Regarding Execution’ in
Chapter XXXIII of the Bill. In Section 173 [Information in Cognizable Cases] in Chapter XIII
[Information to the Police and their Power to Investigate] of the Bill, the medium of electronic
communication is recognized, along with oral communication, as a way to provide information
relating to the commission of a cognizable offence, irrespective of the area where the offence
was committed, which is also known as Zero FIR. In this perspective, the main difference
between the Criminal Procedure Code and the Bharatiya Nagarik Suraksha Sanhita is that, the
Bill openly recognizes Zero FIR, whereas the Criminal Procedure Code didn’t.

Bharatiya Sakshya Bill of 2023

The Bharatiya Sakshya Bill of 2023 is intended to replace the Indian Evidence Act of 1872,
which is also an indispensable aspect in the criminal jurisprudence. It consists of 170 sections

4
Legislation Department, Bharatiya Nagarik Suraksha Sanhita Bill of 2023 (Aug, 11, 2023),
file:///C:/Users/sabhi/Desktop/LAW/Bharatiya_Nagarik_Suraksha_Sanhita,_2023.pdf
5
Government of India, The Code of Criminal Procedure, 1973 (Apr, 1, 1974),
file:///C:/Users/sabhi/Desktop/LAW/A1974-02.pdf
[instead of the 167 sections in the Indian Evidence Act], in which 23 sections have been
amended, 1 section has been added and 5 sections have been repealed.

Primarily, the definitions of various terminologies in the interpretation clause of Sections 3 and 4
of the Indian Evidence Act have been included under the head ‘Definitions’ in Section 2 in
Chapter I in Part I of the Bill [Preliminary].Earlier, 6in the Indian Evidence Act, a document was
defined as any matter expressed or described upon any substance by means of figures, letters, or
marks, or by more than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter. But now, 7in the Bill, a document is defined as any matter
expressed or described or otherwise recorded upon any substance by means of letters, figures or
marks or any other means or by more than one of those means, intended to be used, or which
may be used, for the purpose of recording that matter and includes electronic and digital records.
The definitions of ‘Disproved’ and ‘India’ in the Indian Evidence Act, have been avoided in the
Bill. The sections 25 [Confession to Police Officer not to be Proved] and 26 [Confession by
Accused While in Custody of Police Not to be Proved Against Him] of the Indian Evidence Act
have been merged in the Bill. Furthermore, the sections 24 [Confession Caused by Inducement,
Threat or Promise, When Irrelevant in Criminal Proceeding] and 28 [Confession Made after
Removal of Impression Caused by Inducement, Threat or Promise, Relevant] have also been
merged. Section 38 of the Indian Evidence Act [Relevancy of Statements as to Any Law
Contained in the Law Books] has been further expanded in Section 32 of the Bill as ‘Relevancy
of Statements as to Any Law Contained in Law Books Including Electronic or Digital Form’. In
Chapter II in Part II of the Bill [Relevancy of Facts], the two sub-heads ‘Statements Made under
Special Circumstances’ and ‘How Much of a Statement is to be Proved’ have been joined
together, 5 sections from the former and 1 section from the latter, summing up to 6 sections in
the sub-head ‘Statements Made under Special Circumstances’. A new section has been added in
the Bill, which is Section 170 [Repeal and Savings] in Chapter XI [Of Improper Admission and
Rejection of Evidence] in the Bill.

New explanations have been added in Section 57 [Primary Evidence] of the Bill. When an
electronic or digital record is created or stored and such storage occurs simultaneously or
6
Government of India, The Indian Evidence Act of 1872 (Mar, 15, 1872),
file:///C:/Users/sabhi/Desktop/LAW/A1872-01.pdf
7
Legislation Department, Bharatiya Sakshya Bill of 2023 (Aug, 11, 2023),
file:///C:/Users/sabhi/Desktop/LAW/BHARATIYA_SAKSHYA_BILL,%202023.pdf
sequentially in multiple files, each such file is primary evidence. Also, when an electronic or
digital record is produced from proper custody, such electronic and digital record is primary
evidence unless it is disputed. Moreover, when a video recording is simultaneously stored in
electronic form and transmitted or broadcast or transferred to another, each of the stored
recordings is primary evidence, and finally, when an electronic or digital record is stored in
multiple storage spaces in a computer resource, each such automated storage, including
temporary files, is primary evidence.

Three new materials have been added as secondary evidence, according to Section 58 of the Bill.
They are (i) oral admissions, (ii) written admissions, and (iii) evidence of a person who has
examined the document, the original of which consists of numerous accounts or other documents
which cannot conveniently be examined in Court, and who is skilled in the examination of such
documents.

Challenges

Even though the change is good, the questions are ‘How much?’ and ‘How Effective?’ These
Bills can be a sharpened knife, which can be used to cut off weeds as well as the flesh at the
same time.

Taking the case of the Bharatiya Nyaya Sanhita, it retains almost the same features of the Indian
Penal Code, so henceforth, exists no such massive difference. The only visible change is the
recognition of offences against women and children as a separate chapter. But, even after the
announcement of the Bills, crimes against women and children are still skyrocketing. The images
of the children, below 10 years of age, who was victimized to the hands of the evil, are still
unforgettable. It is to be admired that the punishments for these offences have been made more
rigid. But, the question is whether they are given to the deserving or not. Also, many sections
relating to the offence of hurt have been taking away, which could narrow the extent of the
applicability of the provisions for the protection of life and liberty of the citizens. Same is in the
case of criminal force and assault, which is mainly going to affect the women community. When
the most discussed section of criminal law, the Rape law, is taken for study with respect to the
Bill, the Indian Judicial system still does not recognize the sexual acts of the husband towards his
wife, against her will and without her consent, which is also known as marital rape, as a rape.
This could later be a shameful disgrace to the legal system of such a country, which highly
admires the existence of women in the society, but not to their roles and contributions towards
vital spheres of development of the nation, which includes education, healthcare, economy,
politics, commerce, art and so on. Also, the sections related to the offences of Extortion,
Criminal Breach of Trust, Stolen Property, Defamation, Wrongful Restraint and Wrongful
Confinement have been reduced to 1. This measure could, at some point, degrade their extent of
applicability and functioning. They may contain some important sub- categories which are
witnessing in our day- to- day lives and are actionable.

Taking the case of Bharatiya Nagarik Suraksha Sanhita, it can be considered as the Criminal
Procedure Code given an Indian name. The major changes that we can see with the introduction
of this Bill are the consolidation of various sub-sections of chapters in the Criminal Procedure
Code into a single sub-section, and the open recognition of Zero FIR. The Bill also displays the
introduction and functioning of technology in settling criminal cases, according to the procedure
established in law. But, it can impose several problems, mainly, the Bill does not mention about
the protection of electronic and digital records from unethical hackings, which could affect the
proceedings of the case concerned. There is also a possibility which could affect the privacy of
certain information which requires secrecy. The information relating to the commission of an
offence, whether it is written, oral, or electronic, is vulnerable to various threats. The Bill does
not mention about any procedure or precaution about the protection of digital evidence. The
recognition of receiving information about the commission of an offence through electronic
communication is still in debate. The concept of Zero FIR could, at a point of time, can affect the
coordination between police stations.

Taking the case of Bharatiya Sakshya Adhiniyam, it can be considered as the Indian Evidence
Act with an Indian pet name. There are only minute changes made in the Act, including its name,
and including every possibility of technology in as many sections as possible. But, as mentioned
above, there is always a dark side of technology which could affect the whole legal system in the
future. Similar to the case of Bharatiya Nagarik Suraksha Sanhita, information and evidences,
which are mostly in electronic or digital form in the modern era, are under various challenges,
like authenticity, unethical hackings, adversely affecting the secrecy of important judicial
proceedings.
Above all that, it would have taken at least two generations of the law community to make the
Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act a part of their
lives, so, there still remains a question, if these Bills are approved by the Parliament and signed
by the Honorable President of India/Bharat [How to address the nation in the tail-end is still in
progress], ‘How many generations would it take to make these the part of their lives, provided
the abundant technology?’

Whether these Bills become a reality or not, every citizen should not forget the two women in
Manipur, whose life and dignity were questioned through action by the mob. They, along with
others, known and unknown, should be the immortal figures in the minds of each, whether the
one is a lawyer or not, to be the change everyone and yourself deserve, make it happen and
motivate the upcoming the off-springs to rise from the depths.