On 11th December the Central government has re-introduced three bills to amend India’s criminal laws, namely the Bharatiya Nyaya (Second) Sanhitathe Bharatiya Nagarik Suraksha (Second) Sanhita and the Bharatiya Sakshya (Second) Bill, 2023. and the Central government had withdrawn the earlier versions of the three criminal law bills, namely the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya (Second) Bill, 2023.

Union Home Minister Amit Shah addressing the Lok Sabha had earlier stated that the process of drafting the three proposed laws involved consultations with 18 States, 7 Union Territories, judges from the Supreme Court and High Courts, 22 law universities, 142 Members of Parliament (MPs), 270 Members of Legislative Assemblies (MLAs) and numerous members of the public. This effort spanned four years and encompassed a total of 158 meetings.

The bills have now been re-introduced with certain changes.

Bharatiya Nyaya (Second) Sanhita

  • The Bharatiya Nyaya (Second) Sanhita now comprises 358 sections. The first version of this bill had 356 sections, with 175 sourced from the Indian Penal Code (IPC) with alterations, and by which 22 Sections were proposed to be repealed, and 8 new Sections introduced.
  • In this bill two new provisions have been added to the revised bill, Sections 73 (publishing court proceedings without permission) and 86 (cruelty defined).
    • Section 73 Printing or publishing any matter relating to Court proceedings without permission.
      • Whoever prints or publishes any matter in relation to any proceeding before a Court with respect to an offence referred to in section 72 without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
        • The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.
    • Section 86 Cruelty defined.
      • For the purposes of section 85, “cruelty” means—
        1. any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
        2. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
  • The term “mental illness” in the first iteration of the BNS has been replaced by the phrase “unsound mind”, as suggested by the Parliamentary Standing Committee.
  • There has also been a change to Section 23 of the Bill, which deals with acts of a person incapable of judgment by reason of intoxication caused against his will.
    • The revised provision: – “Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.”
      • The earlier provision had the word “unless” instead of “provided”.
  • Section 150, which is akin to the repealed offence of Sedition, has undergone a change.
    • The revised provision:- “Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the Government of India, intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
    • The older provision: –Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”

Bharatiya Nagrik Suraksha (Second) Sanhita

  • The Bharatiya Nagrik Suraksha (Second) Sanhita now has 531 sections. two provisions have been deleted from the revised version of the law slated to replace the Code of Criminal Procedure (CrPC). The first bill consisted of 533 sections, out of which 150 were sourced from the Code of Criminal Procedure (CrPC) after revisions, 22 Sections of the earlier CrPC were proposed to be repealed, and 9 Sections were to be newly added.
  • Sections 445 (statement by magistrate of grounds of his decision to be considered by High Court) and Sections 479 (bail and bail bond) that were part of the earlier version of this bill have been deleted.
  • Section 43(3), which provides that handcuffs may be used on persons accused of certain offences, has been changed to exclude economic offences.
  • Magistrates of first and second class can now pass orders sentencing offenders to community service. The explanation to Section 23 defines community service as: “Community service” shall mean the work which the Court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration.
  • There has also been a change to Section 262 of the Bill, which deals with that a discharge application can be filed ‘within a period of sixty days from the date of framing of charges,’ while it is settled law that discharge can occur before charges have been framed.
    • The new Section 262:- (1) The accused may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under section 230.
  • Clause 266, which deals with recording of evidence, contains a new proviso, which states: Provided further that the examination of a witness under this sub-section may be done by audio-video electronic means at the designated place to be notified by the State Government.

Bharatiya Sakshya Bill

  • The Bharatiya Sakshya Bill remains unchanged and has 170 sections. Of these, 23 sections have been sourced from the Indian Evidence Act with amendments, 1 Section is entirely new, and 5 Sections are proposed to be removed.

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