Why in News?
In a complete overhaul of colonial-era criminal laws, Union Home Minister Amit Shah on Friday introduced three Bills in Lok Sabha to replace the Indian Penal Code (IPC), 1860; The Code of Criminal Procedure, 1973 (originally enacted in 1898); and the Indian Evidence Act, 1872.
The Bills — 
·         Bharatiya Nyaya Sanhita (BNS), 2023, to replace the IPC; 
·         Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, for CrPC; and 
·         Bharatiya Sakshya (BS) Bill, 2023, for the Indian Evidence Act — were referred to a standing committee.
  
History of the Criminal Justice System:
·         The codification of criminal laws in India was done during British rule, which more or less remains the same even in the 21st century.
·         Lord Thomas Babington Macaulay is said to be the chief architect of codifications of criminal laws in India.
·         Criminal law in India is governed by Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Indian Evidence Act, 1872, etc.
·         Criminal law is considered to be the most apparent expression of the relationship between a state and its citizens.
 
Need for Reforms: 
Colonial Era Laws: The criminal justice system is a replica of the British colonial jurisprudence, which was designed with the purpose of ruling the nation and not serving the citizens.
Ineffectiveness: The purpose of the criminal justice system was to protect the rights of the innocents and punish the guilty, but nowadays the system has become a tool of harassment of common people.
Pendency of Cases: According to Economic Survey 2018-19, there are about 3.5 crore cases pending in the judicial system, especially in district and subordinate courts, which leads to actualisation of the maxim “Justice delayed is justice denied.”
Huge Undertrials: India has one of the world’s largest number of undertrial prisoners.
According to National Crime Records Bureau (NCRB)-Prison Statistics India (2015), 67.2% of our total prison population comprises undertrial prisoners.
Investigation: Corruption, huge workload and accountability of police is a major hurdle in speedy and transparent delivery of justice.
Madhav Menon Committee: It submitted its report in 2007, suggesting various recommendations on reforms in the Criminal Justice System of India (CJSI).
Malimath Committee Report: It submitted its report in 2003 to the CJSI.
The Committee had opined that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”
 
How the new Legislations try to bring Change? 
·         Bharatiya Nagarik Suraksha Sanhita repeals 9 provisions of the CrPC, proposes changes to 160 provisions thereof and introduces 9 new provisions. The Bill contains total 533 Sections. 
·         Bharatiya Sakshya Bill repeals 5 existing provisions of the Evidence Act, proposes changes to 23 provisions and introduces one new provision. It contains 170 Sections in total.
·         From a new provision on mob lynching, punishable by seven years imprisonment or life imprisonment or death penalty; to enabling speedy justice through video trials, e-filing of FIRs; expanding the definition of sedition; bringing corruption, terrorism and organised crime under the penal laws; introducing community service and solitary confinement as new forms of punishment; holding trials in the absence of an accused; and expanding the scope of offence against women pertaining to sexual intercourse by employing “deceitful means” — the new Bills provide for substantive changes in criminal jurisprudence.

Objective:  
·         These three laws will have an Indian spirit and ethos, and will bring a big change in our criminal justice system.
·         They would achieve the objective of removing a “mentality of servitude” — one of the five pledges (“paanch pran”) that Prime Minister Narendra Modi mentioned in his Independence Day address last year.
·         These three laws were passed by the British Parliament; their central theme was to strengthen and protect colonial rule. Their aim was to punish, not to provide justice
·         The new laws that will replace the colonial laws will place a citizen’s constitutionally guaranteed rights at the centre and protect them. The aim will be to provide justice, not to punish
·         The statement of object for the BNSS said the government’s mantra was “Sabka Saath, Sabka Vikas, Sabka Vishwas and Sabka Prayas” and it was committed to ensuring “accessible and speedy justice” to all citizens in conformity with these constitutional democratic aspirations.
  
Key Changes:
Few new provisions under IPC:
 Section 109: Organised crime
Section 110: Petty organised crime or organised in general 
Section 111: Offence of terrorist act 
Section 150: Acts endangering sovereignty unity and integrity of India 

1. Among the key changes, the new penal code would place the IPC provision on sedition would be repealed.  
However, the proposed Bharatiya Nyaya Sanhita contains a provision that penalises “endangering sovereignty, unity and integrity of India”. While it doesn’t name sedition, it expands its definition, including aiding through financial means and acts of “subversive activities”, or those encouraging “feelings of separatist activities.”
The Bill makes provision to penalize the offence of 'Mob Lynching' and the same is punishable with 7 years or life imprisonment or death penalty.
2. Sexual exploitation of women on the pretext of marriage, job, promotions or by concealing identity will be considered a crime. 
For gangrape, there is provision for punishment of 20 years imprisonment or life imprisonment.
Punishment for Rape of minor includes imposition of death penalty;
3. Terrorism has been defined under the law for the first time.
A terrorist has been defined as one who commits any act in India or a foreign country with the intention to threaten the unity, integrity and security of India, to intimidate the general public or a segment thereof, or to disturb public order. There is also a provision for attaching the property of the terrorist.
4. According to the proposed Bill, a chargesheet will have to be filed within 90 days, and the court can give permission for another 90 days. Probe will have to be completed in 180 days and sent for trial. After trial, judgment will have to be given in 30 days.
5. Another key change is the provision for trial in absentia. Ex:  “Dawood Ibrahim is wanted in many cases. He has fled the country. Trial of such people doesn’t take place. 
So it has been decided that Session Courts, after due process, will declare them absconders. The trial will take place in their absence and sentence will be pronounced. They may hide anywhere but sentence will be given. This will have a big impact. 
6. Punishment of death penalty can at max be commuted to life term, punishment of life term may at max be commuted to 7 years imprisonment and Punishment of 7 years may be commuted to 3 years imprisonment and no less. This provision has been made to ensure that those with political influence do not escape law.
7. The use of forensic science to increase conviction in cases is also in focus. “The aim is to take the conviction rate to 90 per cent”. 
8. Formal provision for 'Zero FIR'- this will enable citizens to lodge a FIR with any police station, no matter their jurisdiction; Zero FIR must be sent over to the concerned Police Station having jurisdiction in the alleged crime within 15 days after registration;
9. Digitization of complete process starting from registration of FIR to maintenance of Case Diary to filing of Charge sheet and delivery of Judgment; 
Complete trial, including Cross-examination, appeal, to be facilitated via Video conferencing;
10.  Judgment to be mandatorily delivered within 30 days after conclusion of hearing; -Judgment to be mandatorily made available online within 7 days of pronouncement;
 
What role do legislative measures play in bringing about lasting change? 
There has never been any disagreement about the need for reforming the criminal justice system and criminal law framework. However, legislative change by itself cannot be sufficient.
The Bills in their current form do not rectify long-identified problems with the law and the process. But even if they had addressed those problems, it is doubtful whether it would have been sufficient.
An area of relative disengagement and apathy remains institutional reforms. The attraction that the immediacy of legislative change offers has overshadowed the less immediately observable change that accompanies institutional reform, even as it is the more urgent and helpful change to effect.
The barrier to bringing about reforms in the police force, the prison administration, or even courts is not just one of inertia, but also one of intention. For instance, informal and problematic incentives and disincentives that form part of institutional culture are rules that actors in those institutions play by because that is the acceptable mode of executing responsibility — those playing by the rules are often worse off. These informal incentives and disincentives find their way in because of ever-widening gaps that are often caused by low pay, harsh service rules, poor working conditions, constant pressure, and ultimately an uncared-for system.
Multiple reports have highlighted problematic practices in the police and prisons, but the solution often becomes about an individual as an errant, not about the institution. The inertia that has beset the institutions in the criminal justice system is perhaps because the intention to bring about those changes has been dimmed by the effort it requires and the delay in any rewards it will reap.
So while legislative changes are important, centuries-old institutional culture and realities can undo even meaningful legislative changes.
This is not the first time that changes are being made to criminal laws. The effort to truly understand the colonial legacy and undo it has remained an unsatisfactory effort through the decades. The present attempt does not take the country further along that path by merely deleting certain references.
Truly undoing the colonial legacy would mean fundamentally changing the conception of the relationship between the state and citizens.
 
Mains Practice question:
  Q. What does the proposed legislation to overhaul criminal justice system mean? What must be done to bring about the critical changes that are needed?