Senaka Weeraratna

India has repealed three colonial-era laws that governed India’s Criminal Justice System namely the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act, and three new laws were enacted by the Parliament in December 2023.

The three new laws are Bharatiya Nyaya Sanhita (BNS) 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, and Bharatiya Sakshya Adhiniyam (BSA) 2023.

The earlier laws were based primarily on the protection of the colonial rulers. Now, a new era has begun in India which is firmly grounded in the principles of ‘Citizen First-Justice First-Dignity First’

The chief motive behind these reforms is to provide convenience to the general public. But before doing that the framers of the new laws thought that it was essential to break the shackles of colonialism by replacing the regressive colonial laws.

Prime Minister Shri Narendra Modi said in his Independence Day speech (August 15, 2023) delivered from the Ramparts of the Red Fort, that a nation burdened by a colonial legacy must dedicate itself to the ‘Panch Pran’ (five pledges). One of these pledges was the elimination of all remnants of colonial servitude.

The purpose of the new laws is to protect and reinforce the concept of justice rooted in India’s civilization inspired by the Sanatana Dharma.

Prime Minister Mody also said that India stood at a juncture between a thousand years of slavery and a thousand years of a new and energized nation. Now, we neither have to pause nor live in doubt”, he said. The laws made by the British before Independence, reflected a punitive mindset. Now, the new laws reflect a sense of justice by eliminating the imprints of the dark patches of colonial mindset”.

 The Home Minister and Minister of Cooperation, Shri Amit Shah, said that discussions, consultations, and deliberations for changes in these laws had been underway since August 2019. It is not just the names of the laws that have been changed, but there has been a fundamental transformation in their objectives,” he said.

Swaraj does not only mean ‘self-governance’. The word ‘Swa’ is not just connected to ‘governance’. Swaraj also means advancing ‘Swadharma’ and ‘Swabhasha’, by promoting ‘Sanskriti’ and establishing ‘Swashasan’. Mahatma Gandhi did not fight only to free us from British rule”, he said.

While introducing the three bills in the Lok Sabha on August 11, 2023, Shri Shah said that from 1860 to 2023, the criminal justice system of India had continued to be operated based on laws made by the British Parliament, but now those three laws would be replaced by imbibing the Indian soul, which would bring about a major change in our criminal justice system. Shri Shah said that a total of 313 changes have been made in the old laws, which would bring a widespread change in the criminal justice system.

New Criminal Laws: Salient Features

1)     The Bharatiya Nyaya Sanhita (BNS) 2023, replacing the Indian Penal Code, has 358 sections instead of the earlier 511 sections, 175 sections have been changed, 10 new sections have been added and 19 sections repealed.

2)     The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaced the Criminal Procedure Code, has 531 sections, 177 sections have been modified, 9 provisions added and 11 sections have been deleted.

3)     The Bharatiya Sakshya Adhiniyam (BSA) 2023, which replaced the Indian Evidence Act, of 1872, has 170 sections instead of the earlier 167. As many as 23 sections have been changed, 2 new sections have been added and 11 sections have been repealed.

4)     The entire process—from the first information report to the case diary, from the case diary to the chargesheet, and from the chargesheet to the delivery of justice—will be digitized.

5)     The presence of a forensic team at the crime scene for offenses with a punishment of seven years imprisonment or more has been made mandatory, providing the police with scientific evidence that will greatly reduce the likelihood of the accused being acquitted in court.

6)      In cases of sexual violence, video recording of the victim’s statement is now required.

7)      Police will give the status of the investigation within 90 days to the victim.

8)     A time limit of 90 days is fixed for filing supplementary chargesheet during the trial and depending on the situation, the court can further permit 90 more days.

9)      The scope of summary trials in minor cases has been expanded, it now includes offenses with up to three years of imprisonment. This provision alone will eliminate over 40% of cases in the courts.

10)                         Provision of the death penalty has been included in cases involving gang-rape of girls under 18 years of age, and provisions for life imprisonment and death penalty have been made for mob-lynching cases

Here are some of the new Changes:

Speedy Justice

*Maximum three-year timeframe for dispensing justice, eliminating prolonged waiting for justice.

*Timeline has been added in 45 sections.

* If a complaint is given electronically, the e-FIR is to be registered within three days.

 * The medical examination report for rape cases must be submitted within seven days.

*Charges to be framed within 60 days from the commencement of the first hearing on the charge.

* Prosecution proceedings against declared offenders in absentia should be initiated after completion of 90 days from the date of framing of the charge.

*Judgments required to be delivered within 45 days after the conclusion of the trial.

* Sanction for prosecution, supply of documents, committal proceedings, filing of discharge petitions, framing of charges, pronouncement of judgment, and filing of mercy petitions have been mandated to be completed within stipulated timelines.

* No more than two adjournments are allowed to be given in criminal proceedings.

* Use of technology for issuance and service of summons and deposition of evidence before court removes unnecessary delay and cost attached to court proceedings.

Terrorism

For the first time, a terrorist act has been defined clearly and made a punishable offense.

A terrorist act is punishable with a death sentence or life imprisonment.

Activities such as damage or destruction of property, disruption of supply of essential services, damage to the monetary stability of India, and destruction of any property in India or abroad used for the defense of India are covered in terrorist acts.

Acts such as organizing camps for imparting training in terrorist acts, recruiting any person to commission a terrorist act, and being a member of a terrorist organization are made punishable. Possessing property derived or obtained from terrorist acts is made punishable

Promoting Technology

The new laws promote digitalization and emphasize e-FIRs.

Police officers must provide information to victims through digital means within 90 days. Promoting forensics, mandatory visits to crime scenes, and mandatory videography for collecting evidence in cases with sentences of seven years or more.

The entire process of police search or seizure of any property must be video graphed through electronic devices.

Statements of rape victims are to be recorded in audio-video mode.

Appearance before the court can be done by the use of audio-video electronic means. Audio-video recording of all search and seizure processes. Use of audio-video conferencing modes for deposition of evidence by the accused, victim, and witnesses. Leveraging technology for service of summons and electronic supply of document

 There are many other law reforms undertaken under the following titles:

1)      Focus on Justice, not Punishment

2)      Addressing Offences against Women & Children

3)      Eliminating Corruption – Establishment of a Directorate of Prosecution

4)      Trial in Absentia

5)      Boosting Forensics

6)      Provisions Related to Reclassification of Courts

7)      Mob-lynching

8)      Organized Crime

9)      Victim-centric

The Victim gets a chance to express his/her views. Right to Information and Right to Compensation for Loss. Zero-FIR has been institutionalized, now an FIR can be filed anywhere. Victims are entitled to a copy of the FIR and possess the right to be informed about the progress of the investigation within 90 days. The accused-centric approach in defining the term ‘victim’ has been removed in the new law. Victims are entitled to receive police documents. The victim’s right to participation has been recognized at the stage of withdrawal of prosecution.

10)   Organized Crime

11)   Accountability of the Police

12)   Sedition Decriminalized

The offense of sedition, considered one of the most potent tools of colonial suppression, has been abolished. Stringent penalties have been introduced for anti-national activities. Activities against the sovereignty and integrity of India can now result in imprisonment for up to seven years or life. The IPC did not mention ‘intent or purpose’, but the new law includes ‘intent’ in the definition of treason, providing safeguards for freedom of speech and expression. Mere showing disaffection to the Government or contempt/hatred towards the Government is no longer a criminal act under the new law.

13)   Expediting the Judicial Process

Mandatory summary trials are now required for minor and less serious cases. Magistrates are empowered to conduct summary trials in cases that involve imprisonment of up to three years. Decision.  A timeline has been set for initiating criminal proceedings, proceedings before a magistrate, framing of charges, plea bargaining, the appointment of public prosecutors, trial, bail, judgment, sentencing, mercy petitions, etc. As many as 45 sections have been added with timelines to enable speedy delivery of justice. e-FIR must be placed on record within three days by a person filing a complaint through electronic communication. After the conclusion of a trial.  Discharge provision has been introduced in summon cases. The timeline has been prescribed for making discharge applications, charge framing, etc.

14)   Undertrial Prisoners

The maximum period of detention for a first-time offender has been reduced. A person who has committed a crime for the first time and has served ‘one-third of the maximum imprisonment’ will be released on bail by the court. In such cases, the Jail Superintendent must immediately apply in writing to the court, for bail. Release on bail will not be available for undertrial prisoners in cases carrying life imprisonment or death sentences.

15)   Witness Protection

16)   Measures against Declared Criminals

17)   Community Service as Punishment

18)   Search & Seizure

The procedure of search and seizure by the police will rely on technology. The entire process of searching or acquiring evidence will be video graphed through electronic devices. The records will be sent to the magistrate without any delay

19)   Disposal of Property

Since a large number of case properties are lying in police stations, new provisions have been made for their swift disposal. After creating a description of the property by the court or magistrate and photograph/video graphing of such property, they can be used as evidence in any investigation, inquiry, trial, or other proceedings. Orders will be given for the disposal, destruction, confiscation, or delivery of the said property within 30 days of taking photographs/videos.

Removing Colonial Imprints from Indian Legislation

Framed in the 19th Century, the old laws were enacted to fortify and uphold British dominance. They were debated in the British Parliament and not in India. When the old criminal laws were made no Indian leaders were consulted. The essence of the new laws is centered on safeguarding the rights granted to Indian citizens by the Constitution of India. Crafted with the spirit of Indian ethos, these three laws are poised to bring about a significant transformation in India’s criminal justice system. The three old laws, tainted by the specter of colonialism, were originally imposed by the British Parliament and were merely adopted by India after Independence. The old criminal laws used terms such as Parliament of the United Kingdom, Notification by the Crown Representative, London Gazette, Possession of His Majesty, Jury, Her Majesty, Privy Council, Court of Justice, United Kingdom of Great Britain and Ireland, Queen’s Printer, Commonwealth, Her Majesty’s Dominions, etc. They have been removed in the new laws. Traditional legal titles such as ‘barrister’, ‘pleader’, and ‘vakil’ have been updated to ‘advocate’. Additionally, outdated terminologies such as ‘metropolitan area’ have been discarded. Terms considered derogatory or demeaning such as ‘idiot’, ‘lunatic’, and ‘mental retardation’, have been updated to more respectful terms such as ‘intellectual disability’ and ‘unsound mind’, aligning with the Mental Healthcare Act, 2017. These changes signify the shedding of the British legacy, removing the symbols of colonial subjugation.”

Shri Amit Shah said that India was committed to running its criminal justice system with Indian ideas and ethos. India’s criminal justice system is also ready to leap from the 19th Century to the 21st Century. He said that after the implementation of these laws, India’s criminal justice system will become the most modern in the world.

Note: The above information was extracted from a new digital Magazine called

‘Vigilant India’ Magazine

Issue: 1-31 December, 2023 Year: 1 Volume: 17/18 (Joint Edition)

https://jan-sampark.nic.in/campaigns/2024/05-Mar/BPRD/images/eng.pdf

Law Reform in Sri Lanka

The British Colonial Govt. enacted the Penal Code (Ordinance No. 2 of 1883), Code of Criminal Procedure Ordinance, No. 3 of 1883 (later replaced by Act No 15 of 1979) and the Evidence Ordinance (No. 14 of 1895) in British occupied Ceylon around the same time that the British Raj imposed the counterpart legislation in India.

Though many amendments have been introduced by the Sri Lanka Govt. to these statutes in the post-colonial era there is no resolve within Sri Lanka as yet to follow India in this manner of total replacement. There is no political will to do so. The best example of a lack of political will to reform pre-colonial legislation is the 1907 statute ‘Prevention of Cruelty to Animals ‘No. 13 of 1907’, where the maximum punishment is a mere Rs. 100 fine. It still prevails to this day.  It has become a big joke.

The Animal Welfare Bill prepared by the Law Commission in 2006, pro – Animal Welfare document, to replace the ‘Prevention of Cruelty to Animals’ Ord of 1907, has been subject to mutilation of a significant kind such that the latest version of the Animal Welfare Bill (2022) is no longer Animal friendly or pro-animal welfare.

 The Animal Welfare Bill proposed by the Law Commission and handed over to the then President, Mr. Mahinda Rajapaksa in June 2006, was a comprehensive document. Upon enactment, it was felt that it would set the standard for other countries, particularly in Asia to adopt. Unfortunately, the Bill has had an uneasy ride over the last 18 years largely owing to the opposition of people with vested interests e.g. Meat vendors and Abattoirs.

 It has reappeared in a new incarnation in the year 2022 as a Bill of Parliament with many of the outstanding features that made the 2006 draft Animal Welfare Bill admirable and highly valued, discarded. Today, the Bill (2022 Version) is at the penultimate stage of its passage. Some of the content is draconian. It has fallen short in critical areas vis-à-vis the original Animal Welfare Bill, henceforth referred to as the 2006 Version. The potential of creating room for possible committing of greater harm to a wider number of animals through misinterpretation and misconstruction of words, though not conceived at the time of drafting, is very high and alarming.

The moral challenge for the people of Sri Lanka is to either give effect to the long-suppressed voice of the voiceless animals via an effective piece of Animal Welfare legislation or accommodate the demands of those who see animals in an entirely different light i.e., as fit only for abuse and exploitation for profit, and thereby belying the noble purpose of the Animal Welfare Bill.

Concluding Remarks: The entire Animal Welfare Bill proposed by the Law Commission in 2006 has been hijacked by the Meat trade and its acolytes and converted into an AWB (2022) protecting not the innocent animals but more the interests of the Poultry and Meat trade, and those who use live Animals in unnecessary experiments despite the availability of viable non-violent and harmless alternatives.

Can the friends of voiceless animals remain silent in the face of enactment of a bad piece of draft legislation to be incredulously called the ‘Animal Welfare Act’ upon enactment?

Senaka Weeraratna