By Md. Arif Imam
Published on: January 16, 2024 at 19:23 IST
The BNSS, replacing the Code of Criminal Procedure (CrPC), is a legislative milestone designed to modernize legal proceedings, enhance the utilization of technology in criminal justice, and improve protections for victims and witnesses. This article on the potential advancements the BNSS brings, such as faster judicial processes, improved management of electronic and forensic evidence, and a more efficient criminal justice structure.
This article examines the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in India, a substantial reform aimed at overhauling the nation’s criminal justice system. However, the article also scrutinizes the challenges in implementing the BNSS. These include ensuring the protection of individual rights amidst a more expedient justice process, the potential for misuse of increased police authority, handling complexities associated with new forms of evidence, and addressing implementation disparities across India’s varied regional settings. Moreover, successful implementation of the BNSS requires significant investments in resources, comprehensive training programs, and infrastructure improvements.
On August 11, 2023, India’s Home Minister, Amit Shah, introduced three significant bills in Parliament aimed at overhauling the country’s criminal justice system. These bills were designed to replace the long-standing Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act. The proposed new laws are:
- The Bharatiya Nagarik Suraksha Sanhita (BNSS): This bill is set to replace the Code of Criminal Procedure (CrPC) that has been in effect since 1973.
- The Bharatiya Nyaya Sanhita (BNS): This bill will replace the Indian Penal Code (IPC), which has governed criminal law in India since 1860.
- The Bharatiya Sakshya Sanhita: This aims to replace the Indian Evidence Act of 1872.
These reforms were initiated following the establishment of a committee in 2020, led by Dr. Ranbir Singh, former head of NLU Delhi. The committee’s task was to review and propose improvements to India’s three primary criminal laws – the IPC, CrPC, and IEA. Their focus was on ensuring the safety and security of individuals, communities, and the nation, while upholding the values of justice and human dignity.
On December 20, 2023, during the winter session of Parliament, the Lok Sabha passed these three revised criminal bills, namely, the Bharatiya Sakshya (Second) Bill, 2023, Bharatiya Nyaya (Second) Sanhita (BNS) 2023, and Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS) 2023. The following day, the Rajya Sabha also approved these bills. This approval came after the original versions of the bills – Bharatiya Sakshya Bill, 2023, Bharatiya Nyaya Sanhita (BNS) 2023, and Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 – were withdrawn by the Central Government. These initial versions were replaced by the second set of bills, which included amendments and changes suggested by a Parliamentary Standing Committee chaired by Rajya Sabha member Brij Lal.
The passage of these bills occurred amidst a significant parliamentary event, where around 141 Members of Parliament were suspended from both the Lok Sabha and the Rajya Sabha.
CrPC the Colonial Era Law
The colonial era law Code of Criminal Procedure, 1973 (CrPC), was a procedural law in India that provides the framework for the administration of criminal law, specifically the Indian Penal Code, 1860 (IPC). It outlines the procedures for investigation, arrest, prosecution, and bail in criminal cases.
The CrPC was initially enacted in 1861 to unify the diverse legal systems in India, and it has undergone several revisions since then. The most significant overhaul occurred in 1973 when the existing CrPC replaced the old act, introducing changes such as the concept of anticipatory bail. Further amendments were made in 2005, including the introduction of plea bargaining and expanded rights for arrested individuals.
Over the years, the Supreme Court of India has made numerous interpretations and revisions to the CrPC. Key developments include the mandatory registration of an FIR for cognisable offences, limiting arrests for crimes with a punishment of less than seven years to exceptional cases, and reinforcing that bail for bailable offences is a fundamental and non-discretionary right.
Additionally, the Court has established guidelines for custodial interrogations and underscored the importance of speedy trials. Despite these changes, the criminal justice system in India continues to grapple with issues such as case backlogs, trial delays, and the fair treatment of marginalized groups.
Need For Replacement
The introduction of new criminal laws in India, Bharatiya Nagarik Suraksha Sanhita (BNSS) was driven by several important reasons:
- Outdated Laws: The existing criminal laws in India were very old, colonial era law dating back to the 19th century. They were not well-suited to address the challenges of modern society.
- Slow Legal Processes: Investigations and trials under the old laws were slow and causing delays and frustration for everyone involved.
- Limited Victim Protection: The existing laws didn’t provide strong protection for victims and witnesses, leaving them vulnerable to intimidation.
- Electronic Evidence: With the increase in digital crimes, there was a need for new rules to handle electronic evidence properly in court.
- Unclear Legal Provisions: Some parts of the old laws were unclear, leading to inconsistent interpretations and affecting the fairness of justice.
- Emerging Challenges: The nature of crimes was changing, especially with the rise of cybercrime and organized crime. The old laws were not equipped to handle these new challenges effectively.
- Public Demand: People were unhappy with the slow legal system and wanted reforms. Many felt that the laws were outdated and couldn’t deliver justice efficiently.
- Technological Advances: New laws were needed to deal with the impact of technology on crimes, investigations, and trials.
- International Standards: India aimed to align its legal system with international best practices in criminal justice to improve victim protection, witness safety, and overall efficiency.
- Addressing Social Concerns: Changes in society and concerns about issues like gender-based violence, environmental offenses, and economic crimes required updates to the legal framework for better legal solutions.
President Assent
India has introduced three essential bills into law, receiving approval from President Droupadi Murmu on 25th December 2025 passed during the Winter session, these laws focus on stringent punishments for terrorism, lynching, and offenses endangering national security. Union Home Minister Amit Shah assures that justice will be expedited, addressing long-standing delays.
Notably ‘Bharatiya’ (Indian) in character, these laws mark a departure from past structures. Clear definitions of terrorism demonstrate the government’s commitment to a zero-tolerance stance.
Prime Minister Narendra Modi calls it a pivotal moment, ending colonial-era laws and emphasizing public service. These transformative laws integrate technology, ensuring enhanced protection and a firm stance against organized crime and terrorism.
In the ‘Amrit Kaal’ era, these reforms redefine the legal structure, providing efficient and contemporary solutions to evolving challenges.
Major changes in new law
The Bharatiya Nagarik Suraksha Sanhita (BNSS) emerges as a transformative force set to redefine India’s criminal justice system, replacing the age-old Criminal Procedure Code (CrPC). Taking a closer look at the details of these changes and conducting a comparative analysis sheds light on the potential impact of this legal overhaul:
1. Speeding Up Justice Delivery:
Investigation Timelines: BNSS introduces stringent deadlines, aiming to conclude investigations within 6 months for serious offenses. This contrasts starkly with the prolonged processes often witnessed under CrPC, promising a significant reduction in backlogs.
Trial Timelines: The BNSS ambitiously targets completing trials within one year, addressing the chronic issue of cases dragging on for years under CrPC. This acceleration promises swifter justice delivery, easing the burden on victims and defendants alike.
2. Embracing Technology and Modern Evidence:
Electronic Evidence: Recognizing the importance of digital evidence, BNSS explicitly regulates its handling, addressing a notable gap in CrPC. The lack of clear guidelines in CrPC hindered investigations involving emails, videos, and social media records.
Forensic Focus: BNSS mandates forensic investigations for offenses carrying sentences exceeding 7 years, ensuring thorough evidence gathering. This is a departure from CrPC, which left the use of forensics at the discretion of the police, leading to potential inconsistencies.
3. Empowering the Police:
Detention and Questioning: While BNSS grants the police broader powers to detain and question suspects for extended periods in specific situations, concerns arise about potential misuse and individual rights infringement. CrPC, in contrast, provided more limited detention powers with stricter safeguards.
4. Enhancing Victim and Witness Protection:
Comprehensive Measures: BNSS introduces dedicated provisions for witness anonymity, relocation programs, and victim compensation, addressing a significant gap in CrPC’s protection measures. This comprehensive approach aims to shield victims and witnesses effectively.
Focus on Vulnerable Groups: Recognizing the needs of vulnerable groups, BNSS includes specific safeguards within the criminal justice system, a significant improvement over CrPC’s lack of specialized protection mechanisms.
5. Streamlining Procedures and Processes:
Focus on Technology: Encouraging paperless processes and electronic documentation, BNSS aims to enhance efficiency and accessibility. This modernization contrasts with CrPC’s reliance on manual procedures, often resulting in delays and administrative challenges.
Bail Reforms: BNSS strikes a balance by easing bail in less serious cases while tightening it for repeat offenders and serious crimes. This approach addresses criticisms of CrPC’s bail system, which faced inconsistencies and potential abuse.
Potential Challenges and Areas of Scrutiny:
Balancing Efficiency with Rights: While the expedited processes of BNSS are commendable, concerns linger about ensuring due process and upholding individual rights within this streamlined system.
Implementation Hurdles: Effective implementation demands extensive training, infrastructure development, and resource allocation, posing challenges across India’s diverse environment.
Police Power Misuse: Expanded police powers in BNSS, while intended to aid investigations, must be accompanied by robust safeguards and rigorous oversight to prevent potential abuse and ensure accountability. This scrutiny is important for maintaining the delicate balance between efficiency and individual rights.
Understanding the Challenges in Implementing the Bharatiya Nagarik Suraksha Sanhita (BNSS)
The implementation of the Bharatiya Nagarik Suraksha Sanhita (BNSS) carries the promise of a revamped criminal justice system in India. However, its path to reality also comes with potential legal challenges that need careful consideration. Here’s a look at some of the key issues:
1. Balancing Speed with Due Process:
- Timelines and Shortcuts: While BNSS’s strict investigation and trial deadlines aim to expedite justice, concerns arise about sacrificing thoroughness for speed. Defense lawyers might argue that rushed investigations and abbreviated trials could compromise due process and lead to miscarriages of justice.
- Presumption of Innocence vs. Efficiency: The BNSS’s focus on faster proceedings might potentially shift the emphasis from the presumption of innocence to swiftness, making it harder for defendants to prove their case within tighter timeframes.
2. Challenges in Evidence Handling:
- Electronic Evidence: While recognizing electronic evidence is a vital step, its admissibility and presentation in court could face challenges. Establishing clear guidelines for handling digital records, ensuring data integrity, and preventing tampering will be crucial to avoid legal disputes.
- Forensic Standards and Expertise: BNSS’s emphasis on forensic investigations necessitates robust quality control measures and readily available trained professionals. The lack of proper infrastructure or qualified experts could raise questions about the reliability and admissibility of forensic evidence.
3. Police Powers and Potential Misuse:
- Detention and Questioning: The expanded police powers for detention and questioning raise concerns about potential abuse and violation of individual rights. Clear guidelines, strict judicial oversight, and robust grievance mechanisms are necessary to prevent arbitrary detentions and protect against false confessions or forced statements.
- Privacy Concerns: Increased police access to personal information, including fingerprints and voice samples, under the BNSS might raise privacy concerns. Establishing strict procedures, data protection safeguards, and clear limitations on police discretion will be vital to address these concerns.
4. Implementation Hurdles and Resource Allocation:
- Training and Infrastructure: Effectively implementing the BNSS requires extensive training for law enforcement, judicial officers, and other stakeholders. This includes understanding the new provisions, handling electronic evidence, and adopting technology-driven procedures. Building the necessary infrastructure and allocating adequate resources will be crucial for successful implementation across India’s diverse landscape.
- Uniformity and Interpretation: The complexity of the BNSS and its potential for varying interpretations across different states could lead to inconsistencies in application. Ensuring uniform training, standardized protocols, and clear guidelines for legal interpretation will be crucial to maintain consistency and fairness in the system.
5. Potential Misinterpretation and Public Perception:
- Media and Public Scrutiny: BNSS’s streamlined procedures and faster pace might be misconstrued as cutting corners or undermining due process in the public eye. Effective communication and public education about the reforms will be essential to garner trust and understanding.
- Balancing Public Safety with Individual Rights: While public safety concerns motivate some of the BNSS provisions, striking a balance with individual rights and preventing unwarranted intrusions into personal liberties will be an ongoing challenge.
Conclusion
The introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS) marks a pivotal moment in the evolution of India’s legal system. Replacing the age-old Code of Criminal Procedure (CrPC), the BNSS aims to address the inadequacies of the previous system by accelerating justice delivery, incorporating modern technology and evidence practices, strengthening police capabilities, and enhancing victim and witness protection. These changes represent a significant effort to modernize and streamline India’s criminal justice procedures, ensuring they are more responsive to contemporary challenges and societal demands.
While the BNSS’s focus on expedited processes, technology integration, and comprehensive protective measures is commendable, it also brings forth substantial challenges.
The balance between efficiency and safeguarding individual rights, the potential for misuse of increased police powers, the complexities in handling electronic and forensic evidence, and the varying interpretations and implementation across India’s diverse territories are areas that warrant meticulous attention.