ELIMINATING THE SIGNS OF SLAVERY OF THE

BRITISH ERA: A SIGNIFICANT STEP TO A

COMPLETE INDIAN LAW

By Nithya Sri S, BA.LLB ( Hons.)

5th Year Law Student,

ICFAI LAW SCHOOL, Hyderabad

INTRODUCTION

The three laws that govern the nearly 150-year-old criminal justice system have changed for
the first time under Prime Minister Shri Narendra Modi's leadership. The Indian Evidence
Act, 1872 will be replaced by the Bharatiya Sakshya Adhiniyam 2023, the Criminal
Procedure Code (CrPC) by the Bharatiya Nagarik Suraksha Sanhita 2023, and the Indian
Penal Code (IPC) by the Bharatiya Nyaya Sanhita, 20231.

THE BHARTIYA NYAYA SANHITA ACT, 2023

The Indian Penal Code (IPC), 1860, is the main body of criminal law in India. The IPC has
been revised over time to include new offenses, modify those that already exist, and alter the
severity of penalties. A number of offenses, including consenting to sexual relations between
adults of the same sex, adultery, and attempted suicide, have also been decriminalized by
courts.

Three criminal laws bills, including the BNS Act, are intended to replace the historical IPC,
1860, which will contain 358 sections. 175 sections have undergone changes, with the
addition of 8 new sections and the repeal of 22 existing ones. It recognizes new offenses,
does away with offenses that have been court-validated, increases penalties for some
offenses, and keeps most of the IPC's provisions2.

Notable modifications to the law include3:

1
New Service Division All India Radio, https://newsonair.gov.in/Main-News-Details.aspx?id=473661 ( last
visited on 5th January 2024 )
2
PIB Delhi Ministry of home Affairs , https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1947941 ( last
visited on 11th January 2024 )
  Crimes against the body: The Indian Penal Code makes crimes like murder, aiding
and abetting suicide, assault, and causing great harm illegal. These clauses are
retained in the BNS. It includes new crimes including terrorism, organized crime, and
killing someone or causing serious harm to a number of people for specific reasons.
 Sexual offenses against women: The Indian Penal Code makes crimes including
rape, voyeurism, stalking, and demeaning a woman's modesty illegal. These clauses
are retained in the BNS. The minimum age for a victim of gang rape to be classified
as a major is increased from 16 to 18 years old. A clause introducing the death
sentence is applied to crimes against girls under the age of eighteen. BNS have
included marital rape a crime and making rape a gender-neutral offense.
 Hit and Run : The British-era Indian Penal Code (IPC), which imposed a maximum
2-year sentence for escaping an accident scene without reporting it, has been repealed
by the BNS and have increased the punishment to 10-year sentence.
 Section 377 of the IPC, which the Supreme Court read down, is absent from the BNS.
This ends the legal status of bestiality and male rape.
 Section 69 of the BNS establishes fines for having sex while hiding one's identity or
making false promises about marriage, career promotion, or other commitments.
 Section 226 outlines the penalty for attempting suicide with the intention of
preventing the exercise of lawful authority.
 Section 101 criminalizes collective actions based on race, caste, sex, or place of birth,
therefore broadening the definition of murder.
 Sedition: In order to protect citizens' rights to free speech, the Act repeals the sedition
statute and creates a new definition of sedition in Section 150, which includes
subversive activities that carry a life sentence. Rather, it sanctions the following: (i)
inciting or seeking to incite armed insurrection, subversive actions, or secession; (ii)
propagating sentiments favorable to separatist activity; or (iii) jeopardizing India's
sovereignty or unity and integrity. These offenses could include using money,
exchanging words or signals, or communicating electronically.
 Section 111 of the Indian Penal Code, Acts intended or likely to endanger India's
unity, integrity, security, sovereignty, or economy, or to inspire fear among people
both domestically and abroad, are punishable

3
PRS Legislative Research, Legislative Brief The Bharatiya Nyaya (Second) Sanhita, 2023 , December 13,
2023https://prsindia.org/files/bills_acts/bills_parliament/2023/Legislative_Brief_The_Bharatiya_Nyaya_(Secon
d)_Sanhita_2023.pdf
  Disseminating false information via spoken words, signs, writing, representation, or
electronic means is punishable under Section 195.
 Terrorism: An act that aims to: (i) undermine the nation's unity, integrity, security, or
economic security; or (ii) instill fear in the Indian populace or any particular group
within it is considered terrorism. If terrorism attempts or succeeds, the penalties are as
follows: (i) death or life in jail, together with a fine; (ii) five years to life in prison,
along with a fine.
 Organised crime: Section 109 defines organized crime as a crime and details the
punishment for it. Crimes committed on behalf of a criminal syndicate, such as
kidnapping, extortion, contract killing, land grabbing, financial frauds, and
cybercrime, fall under this category. If an individual is killed while attempting or
conducting organized crime, they will face the following penalties: (i) death or life
imprisonment, together with a fine of Rs 10 lakh; (ii) imprisonment ranging from five
years to life, along with a fine of at least five lakh rupees.
 Snatching is defined as a crime under Section 302 along with the associated
punishment.
 Mob lynching: As per the BNS, it is currently prohibited to kill or seriously injure
five or more people for specific reasons. These grounds can be based on personal
beliefs, language, caste, sex, or race. Such murder carries a life sentence in jail or the
death penalty.
 Supreme Court rulings: The BNS complies with a number of the court's rulings.
These include making life imprisonment an additional punishment for murder or
attempted murder committed by a life sentence prisoner, as well as eliminating
adultery as a crime.

THE BHARATIYA SAKSHYA ADHINIYAM, 2023

The admissibility of evidence in Indian courts was governed by the Indian Evidence Act,
1872 (IEA). Both civil and criminal cases are covered by it. The IEA has undergone
modifications over time to conform to specific criminal laws and technology breakthroughs.
To allow for the acceptance of electronic records as secondary evidence, the IEA was revised
in 2000. It was revised in 2013 to include clauses pertaining to consent in rape situations. It
said that the victim's personality and past sexual activity would not be taken into
consideration when evaluating consent, shifting the burden of proof to the accused.
With some significant modifications, the Indian Evidence Act, 1872 will be replaced by the
BSA Act. Specifically, 23 parts have been changed, one provision is completely new, and
five sections have been eliminated. The Act, which has been updated to reflect modern
cultural shifts and technology improvements, aims to set general guidelines and standards of
evidence for a fair trial. BS Act retains many provisions of IEA, 18724.

Notable modifications to the law include5:

 Documentary evidence: Writings, maps, and caricatures are all considered

documents under the IEA. Electronic records will likewise be regarded as documents,
according to the BSA. Primary and secondary evidence are both included in
documentary evidence. The original document and its components, such as
computerized records and video recordings, are considered primary evidence under
BS. Oral testimony and written records that support the original's contents as primary
evidence under Section 57 of BSA are considered secondary evidence.
 Oral evidence: As per the IEA, utterances made by witnesses in court on a fact under
investigation are considered oral evidence. Oral testimony may be presented
electronically thanks to the BSA. This would allow victims, accused parties, and
witnesses to testify electronically.
 Acceptability of digital or electronic records as evidence: Information from
electronic records that has been printed or saved on computer-produced optical or
magnetic media is considered documentary evidence. Such data could have been
processed or stored by several computers working together or separately. According
to the BSA, digital or electronic records are just as legally binding as paper records. It
broadens the definition of electronic records to encompass data kept on
semiconductor memory or on any kind of communication device, such as a laptop or
smartphone.
 Secondary evidence: The BSA broadens the definition of secondary evidence under
Section 58 to include the following: (i) written and oral admissions; and (ii) the
testimony of an individual who has reviewed the document and is qualified to review
it.

4
PIB Delhi Ministry of home Affairs , https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1947941 ( last
visited on 11th January 2024 )
5
PRS Legislative Research, Legislative Brief The Bharatiya Sakshya (Second) Bill, 2023, December 13, 2023
https://prsindia.org/files/bills_acts/bills_parliament/2023/Legislative_Brief_The_Bharatiya_Sakshya_(Second)_
Bill_2023.pdf
  Joint trials: When multiple people are tried for the same offense, it's referred to as a
joint trial. According to the IEA, in a joint trial, if a confession from one accused
party that also impacts the other accused party is confirmed, it will be interpreted as a
confession against both of them. This provision is expanded upon by the BSA. It
specifies that a multi-person trial will be handled as a joint trial under Section when
one of the accused has escaped or not answered to an arrest warrant.

THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

A procedural legislation known as the Code of Criminal Procedure, 1973 (CrPC) was created
to administer the Indian Penal Code, 1860 (IPC). It controls the process for looking into
crimes, making an arrest, prosecuting them, and setting bail. To solve the issue of India's
multiple legal systems, the CrPC was initially passed in 1861. It has undergone several
revisions since then. The previous statute was repealed and the current CrPC took its place in
1973. It was revised in 2005 to include new clauses pertaining to rights of arrested
individuals and plea bargaining. The Supreme Court has changed how the CrPC is applied
and interpreted it throughout time.

The Code of Criminal Procedure, 1973 will be replaced by the BNSS Act, which will propose
changes to 160 sections, repeal nine of the current Act's provisions, and add nine new ones6.

Notable modifications to the law include7:

 Under-trial detention: In accordance with the CrPC, an accused individual shall be

released on personal bond after serving half of the allowed amount of time in custody.
Crimes carrying a death sentence are not covered by this. Furthermore, according to
the BNSS2, this clause will not apply to individuals who are the subject of on-going
legal processes for more than one offense, or to offenses carrying a life sentence.
 Zero FIR : Section 173(1) introduces the idea of Zero FIR, which requires police
stations to register a police report regardless of their jurisdiction.

6
PIB Delhi Ministry of home Affairs , https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1947941 ( last
visited on 11th January 2024 )
7
PRS Legislative Research, Legislative Brief The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023, 13
December, 2023
https://prsindia.org/files/bills_acts/bills_parliament/2023/Bhartiya_Nagarik_Suraksha_(second)_Sanhita_Brief.p
df
  Medical examination: In some situations, including rape trials, the CrPC permits the
accused to undergo medical examination. A registered medical professional does this
type of examination upon the request of a police officer, at minimum the rank of sub-
inspector. Any police officer may seek such an examination, according to the BNSS.
 Section 173 of the BNSS Act allows for the use of electronic mode in all trials,
inquiries, and proceedings.
 Mercy Petitions: The BNSS under Clause 473(1) permitted undertrail prisioners, as
well as their heirs or family members, to submit mercy petitions, outlining the process
and deadline for doing so.
 Community Service: The BNSS has implemented "community service" as a punitive
punishment for offenses such as making an attempt on one's life, impeding the
exercise of legitimate authority theft, defaming public servants, and showing up in
public areas while intoxicated and causing disturbance8.
 Section 356 of the BNSS Act allows for the proclamation of a judgment in the
absence of a proclaimed offender who has absconded to escape trial.
 Forensic investigation: Section 176 of the BNSS requires forensic investigations for
offenses carrying a minimum sentence of seven years in prison. In these situations,
forensic specialists will go to crime sites to gather evidence and document the
proceedings using a cell phone or other electronic equipment. A state must use
forensics facilities located in another state if it lacks its own.
 Impressions of Finger and Signatures: A magistrate may require someone to
produce specimen signatures or handwriting under the CrPC. This is expanded to
include voice samples and finger impressions in BNSS section 349. It makes it
possible to obtain these samples from someone who hasn't been taken into custody.
 Procedure timelines: The BNSS specifies deadlines for a number of procedures. For
example, medical professionals who examine victims of rape are required to report
their findings to the investigating officer within seven days. Additional deadlines are
as follows: (i) a decision must be made within 30 days of the conclusion of the
arguments (with a 45-day extension possible); (ii) the victim must be notified of the
investigation's progress within 90 days; and (iii) charges must be filed by a sessions
court within 60 days of the charges' initial hearing.

8
SCC ONLINE BLOG https://www.scconline.com/blog/post/2023/12/22/parliament-passes-new-criminal-law-
bills-to-replace-colonial-era-ipc-crpc-evidence-act-legal-news/ ( Last Visited on 17th January 2024 )
  Court System: The Criminal Procedure Code (CrPC) creates a court system in India
for the resolution of criminal cases. These courts are: (i) Sessions Courts, which are
presided over by Sessions Judges and hear appeals from Magistrate's Courts; (ii) High
Courts, which have inherent jurisdiction to hear and decide criminal cases and
appeals; and (iv) the Supreme Court, which hears appeals from High Courts and also
exercises its original jurisdiction in certain cases. The CrPC gives state governments
the authority to designate as a metropolitan region any city or town having a
population of one million or more. There are Metropolitan Magistrates in these
districts. The designation of metropolitan areas and Metropolitan Magistrates is
eliminated by the BNSS.
 Handcuffs : The BNSS Act under clause 43 (3) permits handcuffs to be used during
an arrest, but only in the case of habitual offenders, fugitives, or those charged with
major crimes including rape, acid assaults, organized crime, economic crimes, etc.
 The BNSS Act changed the process for police custody, permitting partial detention
over the first 40 or 60 days, which might lead to the refusal of bail if necessary.
 In order to accelerate case procedures, the BNSS Act permits a successor officer, such
as a public servant, medical officer, or investing officer, to testify in place of the
original officer in the event of death, transfer, retirement, etc.
 The BNSS Act also gives immovable properties the ability to be attached.

CONTROVERSIAL PERSPECTIVES OF THREE CRIMINAL LAWS

 The three laws supersede those from the British era, but it will take several months for
the Acts to take effect because they do not yet have the necessary equipment on hand
or sufficient training for police officers. There was confusion about the application of
the three criminal statutes in police stations and courts the day after they were notified
in the official gazette and obtained the president's approval9.
 Certain modifications to the Criminal Procedure Code, including extending the
amount of time that individuals may be detained by the police, are highly concerning.
 Truck Drivers Protest : Drivers across have begun to demonstrate against the new
Bharatiya Nyaya Sanhita, 2023, which increases jail terms in "hit-and-run" instances.
The Indian Penal Code (IPC), which was enacted during the British colonial era, was
repealed by the BNS. Leaving the scene of an accident without reporting it has a

9
NDTV India News https://www.ndtv.com/india-news/criminal-law-bills-in-lok-sabha-while-nearly-2-3rd-
opposition-mps-suspended-4703182 ( Last visited on 20th January, 2024 )
 maximum 10-year sentence, as opposed to the former 2-year maximum. The drivers
insist that nobody causes accidents on purpose and that they are compelled to leave
the scene because the outraged crowd is threatening to kill them. The demonstrators
said that the new regulations would deter drivers and make them fearful for their
careers. The drivers stated that several elements are at play, some of which are outside
of their control, while describing the circumstances surrounding an accident. In the
event of an accident caused by foggy, low visibility, the drivers will be condemned to
rot in prison without being held accountable. There have also been reports of traffic
jams in certain places as drivers protested in support of the law's repeal or a reduction
in its penalty10.
 It was said that the new laws essentially presented an old wine in a new bottle by
preserving provisions from their colonial-era equivalents. Concerns were raised about
the possibility of delays and setbacks in the legal system due to the new criminal laws
and their new provisions. India's court system is overloaded with almost 50 million
unresolved cases.Furthermore, it is alleged that certain parts of the new laws may
bring evidence that is not admissible or of lower quality in court, leading to a time-
consuming trial.
 Aligning the modifications with the current legal framework and institutional
framework presented difficulties. For example, which statutes will apply in ongoing
trials—the new ones or the old ones? What about changing circumstances like
ongoing investigations, concerns, and trials? Which statute would be in effect if an
investigation was conducted under the previous criminal procedure code but more
research was requested under the current one? These are important questions that have
not been addressed by the Indian government.

CONCLUSION

While the nation's current legal frameworks have been in place for a while, the recent
changes to the criminal code mark a significant step forward in the direction of improving the
judicial system and creating laws that are more adaptable, equitable, and better adapted to the
changing requirements of society. Recognizing the historical limitations in the laws that were
first enacted during the colonial era for the purpose of upholding rather than influencing

10
THE HINDU https://www.thehindu.com/news/national/why-have-truck-drivers-called-for-a-strike-
explained/article67713913.ece#:~:text=The%20story%20so%20far%3ATruck,Sanhita%20(BNS)%2C
%202023. ( last visited 18th January 2024 )
justice, these law reform measures are viewed as essential improvements to the Indian Justice
System.

The goal of Bharatiya Nyaya Sanhita, 2023, is to completely revamp and restructure the penal
law. Humanizing our criminal justice system is the goal of Bharatiya Nagarik Suraksha
Sanhita, 2023. The growing significance of technology in judicial proceedings is
acknowledged by Bharatiya Sakshya Adhiniyam, 202311.

The modernization of criminal law represents more than just a change in the law; it also
stands for a dedication to making justice responsive to the shifting requirements of society.
About 70-75% of the current law is unaffected by the three bills that replaced the current
criminal code. Nevertheless, despite their quantifiable limitations, several changes proposed
by the three Acts are fundamentally revolutionary.

In order to fully prepare police and courts to implement the laws by December 22, 2024, all
state and union territories must complete the infrastructure, software, human resource
training, and court computerization tasks by December 2024. Thus, the laws will take
effect before January 31, 202412.

With this legislative step, India's legal system is moving in the direction of being more
modern, accessible, and equitable. These revolutionary legislation herald a future in which
justice is not just served, but also inclusive and representative of our country's dynamic spirit.

11
Deccan Herald https://www.deccanherald.com/india/unravelling-the-new-bharatiya-criminal-law-bills-
2653712 ( Last visited on 22nd January 2024 )
12
PIB Delhi Ministry of Home Affairs https://pib.gov.in/PressReleseDetailm.aspx?PRID=1989730 ( Last visited
on 22nd January 2024 )