1. What are the key changes in the criminal laws for the corporate sector?

- Classification of Cybercrime as organized crime under Section 111 of BNS 2023 1

Acknowledging the sophisticated nature of digital offenses such as hacking and online
fraud, this classification increases potential liability for online platforms, requiring them
to implement security measures and monitor user activities to prevent cybercrime. The
broad language of Section 111 raises concerns about the potential for expansive
interpretations, particularly regarding the liability of digital platforms for user-generated
content. As a result, businesses operating in the digital space will need to recalibrate
their compliance measures and user agreements to mitigate the risks associated with
these new legal provisions.

- Practical ramifications of trials in absentia for multinational companies

2

According to Section 356 of the BNSS, a court can commence a trial in the absence of the
accused if the individual has been declared a proclaimed offender under Section 84, is
evading trial, and there is no immediate prospect of arrest. This provision enables legal
proceedings to continue without the accused’s presence, raising concerns regarding the
fundamental rights to a fair trial and due process. For multinational companies, the
implications are profound. If an accused executive is not represented during the
proceedings, the court can use evidence presented in their absence against them, as
outlined in Section 356(5). This situation poses a serious threat to the defence rights of
multinational companies, as they may find themselves liable for actions taken by their
representatives without the opportunity to contest the evidence.

2. Do you have any views, if this could have been done differently?

- Failed to address protection of Corporate Whistleblowers

The Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces a witness protection scheme
under Section 398, aimed at ensuring the safety and security of witnesses involved in
criminal proceedings. This provision reflects a recognition of the importance of witness
testimony in the judicial process and acknowledges the potential risks witnesses may face in
the aftermath of their cooperation with law enforcement.
However, despite this progressive step, the BNSS notably lacks specific provisions
addressing the protection of corporate whistleblowers. While whistleblower protections are
critical in fostering an environment where employees can report misconduct without fear of
retaliation, the current framework does not extend these safeguards beyond traditional
criminal witnesses. This gap is particularly concerning given the rise of corporate
governance issues and white-collar crimes, where insiders often have the most pertinent
information regarding unlawful activities within their organizations.

1
https://www.lexology.com/library/detail.aspx?g=19877e24-cf39-4b8b-b99b-a2065706e983
2
https://www.azbpartners.com/wp-content/uploads/2024/07/Part-V-Trial-In-Absentia-Implications-Under-
New-Law.pdf
 In many modern economies, comprehensive whistleblower protection laws are in
place to encourage reporting of fraudulent or unethical behaviour. These protections
typically include confidentiality provisions, protection against retaliation, and mechanisms
for legal recourse if a whistleblower faces adverse actions 3. The absence of such provisions in
the BNSS indicates a missed opportunity to create a robust framework for corporate
whistleblowers, who play a crucial role in uncovering fraud, corruption, and other illegal
activities in the corporate sector.

- Vagueness of False information under section 197(d) under Section 197(d) of the Bhartiya
Nyaya Sanhita, 2023 (BNS)

Businesses may face uncertain legal penalties. The vagueness of what constitutes "false
information" can lead to legal uncertainties, where companies may inadvertently violate this
provision through internal communications, marketing materials, or data reporting practices.
This ambiguity heightens the risk of legal repercussions, including fines or criminal charges,
further complicating compliance for businesses operating in a rapidly evolving regulatory
environment.

KEY CAHNGES AND INCLUSIONS IN THE NEW CRIMINAL LAWS:

1. Incorporation of Special Laws into the Penal Code: (BNS)

Provisions from the Unlawful Activities Prevention Act (UAPA) [BNS – Section 113
Terrorist Act - (1) (c)] and the Maharashtra Control of Organised Crime Act (MCOCA)
[BNS – Section 111 organised crime] have been included within the new BNS 2023. This
effectively broadens the scope of regular penal statutes to encompass offenses that
were previously dealt with under these special laws. MCOCA, although initially limited to
Maharashtra, now applies nationally in criminal statutes, particularly affecting states like
Delhi.

“As far as penal provisions are concerned, there is a lot of emphasis on speech, on what
is considered to be speaking against the sovereignty and integrity of India. All of which
used to be materials that were prosecutable under the UAPA. I think bringing it into the
penal statute and allowing a superintendent of police to decide which of the two
statutes would apply in a particular case, is an arbitrary exercise of power. There was no
need for that. We were arguing that UAPA and PMLA itself is draconian, its bail
provisions are draconian, and why should you put people in jail for years just because
they have a particular thought process? Now, you brought that into the new penal code,
and that makes it a little problematic.” – Rebecca John

2. Change in Remand and Custody Procedures: (BNSS)

Under the old CrPC (Section 167), a person arrested had to be presented before a
magistrate within 24 hours, and custody was granted for a maximum of 15 days initially,
after which it would shift to judicial custody for a total period not exceeding 60 or 90
days, depending on the gravity of the offense. Under the new remand provisions of
BNSS (Section 187), while the initial production and custody rules remain, the significant
3
https://www.whistleblowers.org/whistleblower-laws-around-the-world/
 change is that police custody can now be staggered. For cases requiring a charge sheet
within 60 or 90 days, police custody can be intermittently sought for up to 40 or 60 days,
respectively, rather than being confined to the first 15 days. The wording of Section
187(3) has created ambiguity. In the earlier Section 167, the third proviso explicitly
stated that after 15 days, the accused must be in judicial custody ("otherwise than in the
custody of the police"). This phrase has been removed in the new law, leading some to
interpret that police custody could extend beyond the previous 15-day limit, potentially
up to 40 or 60 days.4

3. Mob Lynching: Recognized and punishable by death - yet no framework of

presumptions set for the same. (BNS)

Categorizing it as a serious offense (Section 103 (2), with potential punishment

extending to the death penalty if the lynching results in death. From a legal standpoint,
when mob lynching leads to a fatality, it is classified as murder, an offense already
punishable by either life imprisonment or death under existing law. However, what the
statute has done is to formally recognize mob lynching as a specific type of murder,
similar to how dowry deaths have been recognized within the Indian Penal Code (IPC).
Despite this classification, the statute does not include parallel presumptions like those
in cases of dowry deaths. In the case of dowry-related offenses, there are legal
presumptions that work against the accused under the law. For example, if a woman
dies within seven years of marriage in connection with dowry, the law presumes dowry
harassment, and the burden of proof shifts to the accused. Such presumptions make
dowry-related crimes more prosecutable.

4
https://frontline.thehindu.com/interviews/rebecca-john-lawyer-supreme-court-india-new-criminal-laws-
problems-penal-code-bns-bsa/article68384946.ece