BNS, BNSS, BSA: How different are India’s new criminal laws

Hyderabad: On July 1, three new criminal laws will come into force. Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) aim to overhaul the criminal justice system.

These Bills, presented in the August 2023 Monsoon session of Parliament, seek to replace the archaic Indian Penal Code (IPC)1860, Code of Criminal Procedure (CrPC)1973, and Indian Evidence Act of 1872.

Bharatiya Nyaya Sanhita: Modernizing Penal Law

The BNS will supersede the 163-year-old Indian Penal Code (IPC) 1860, featuring 358 sections, down from the IPC's 511. It introduces 20 new offenses, hikes prison terms for 33 crimes, raises fines for 83 offenses, and imposes mandatory minimum sentences for 23 crimes. Notably, community service becomes a penalty for six offenses, and 19 sections are abolished.

Stringent penalties for sexual offenses, including up to 10 years for deceitful promises of marriage. The BNS also severely punishes organized crime, such as kidnapping, extortion, and trafficking. Terrorist activities and mob lynching, based on discriminatory motives, face the harshest punishments, including death or life imprisonment.

Bharatiya Nagarik Suraksha Sanhita: Revamping Criminal Procedure

Replacing the CrPC of 1973, the BNSS introduces significant procedural reforms. First-time offenders, barring those sentenced to life or facing multiple charges, can secure bail after serving one-third of their sentence. The law mandates forensic investigations for crimes punishable by seven years or more, facilitating thorough evidence collection and allowing states without forensic facilities to utilize those in other regions.

Bharatiya Sakshya Adhiniyam: Modernizing Indian Evidence Act

The BSA, replacing the Indian Evidence Act, introduces critical updates, particularly for electronic evidence. It sets out detailed formats for disclosing the authenticity of electronic records, previously managed through affidavits and self-declarations. The BSA’s implications extend to other civil laws, modernizing the approach to evidence in legal proceedings.

Criticisms and Concerns

Despite government claims of revolutionary reforms to decolonize India's criminal justice system, legal experts express skepticism. Prof Tarunabh Khaitan of the London School of Economics, in a social media post, said he had compared the new bills with the acts they seek to replace through the online similarity detection service, Turnitin. According to his plagiarism checks, the Bharatiya Nyaya Sanhita, 2023, has an 83% match with the Indian Penal Code, 1860. Similarly, the Bharatiya Nagarik Suraksha Sanhita, 2023, has an 82% match with the Code of Criminal Procedure, 1973, and the Bharatiya Sakshya Bill, 2023, too bears 82% similarity with the Indian Evidence Act, 1872.

Prof.Anup Surendranath from National Law University Delhi argues that the new laws fail to seize the opportunity for genuine transformation. Instead of dismantling the colonial legacy, they perpetuate it by expanding state control and retaining vague provisions and broad police powers, thus failing to fundamentally reform criminal justice institutions. The colonial logic persists, suggesting these laws are merely repackaged versions of their predecessors.

Conclusion

The BNS, BNSS, and BSA, despite their presentation as groundbreaking, appear to be little more than rebranded colonial-era laws with only superficial changes. The government’s claims of dismantling the colonial legacy in India's criminal justice system lack substance. Critics argue that these changes could have been achieved through amendments rather than introducing new laws. The reforms fail to challenge the retributive and perpetrator-centric nature of the current justice system, thus missing a crucial chance to create a more transformative and just legal framework.

In essence, the new criminal laws embody the adage "old wine in a new bottle," offering minor revisions without addressing the systemic issues rooted in the existing colonial legislation.