LEGAL LANGUAGE AND LEGAL WRITING

NAME: EKTA TRIPATHI

CLASS/SECTION: TYBLS/B ROLL NO.:73

TOPIC: COMPARATIVE ANALYSIS BETWEEN THREE NEW CRIMINAL

BILLS REPLACING THE INDIAN PENAL CODE,1860, THE CODE OF
CRIMINAL PROCEDURE,1973, AND INDIAN EVIDENCE ACT,1872

SUBMITTED TO: PROF. MISS JAYOTI KARMOKAR

SUBMITTED ON: 26/09/2023

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TABLE OF CONTENTS
SERIAL TITLE PAGE NO.
NO.

1. INTRODUCTION 4

2. OVERVIEW 5

3. OBJECTIVE OF CRIMINAL LAWS? 5

4. WHAT WAS THE PROBLEM IN THE

6
EXISTING LAWS?
5. WHICH NEW BILLS WILL REPLACE
THE IPC, CRPC & THE EVIDENCE
ACT? 7
WHAT IS NEW IN NEW CRIMINAL
6. BILLS?
7-13
WAY FORWARD FOR THE
7. PROPOSED BILLS
13

WHAT ARE THE ISSUES IN THE

8.
CURRENT CRIMINAL JUSTICE
SYSTEM OF INDIA? 14

WHAT IS THE SIGNIFICANCE OF

9.
THE PROPOSED REFORM? 16

WHAT ARE THE ISSUES IN THE

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10. CURRENT PROPOSED REFORMS TO

THE CRIMINAL JUSTICE SYSTEM?
16-17

WHAT NEEDS TO BE DONE?

11. 17-18
OPINIONS OF EMINENT JUDGES AND
12.
LAWYERS:
18-20
CONCLUSION
13. 20

BIBLIOGRAPHY
14. 20-21

INTRODUCTION:

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The paper consists of twelve parts i.e., Introduction, Overview , the objective of criminal laws,
problems in existing laws, Detailed description and in-depth analysis of new bills, Positive
Changes, Inadvertent Errors in the judiciary, Negative Changes, errors in new bills, what should
be needed to be done, opinions of eminent judges and advocates and Concluding Remarks.
This research paper critically analyses the three new criminal bills with the old CRPC, IPC, and
IEA. This will provide a general overview of what changes have been made in the old criminal
laws. The scope of the paper would be restricted to only substantial changes made in criminal
procedure law, civil procedure code, and the Indian evidence act by doing an exhaustive
comparative analysis of provisions from CrPC, IPC, and IEA and BNSS, BNS, and BSB. This
paper will also delve into new sections added and give the information for the same.
The Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, and
Bharatiya Sakshya Bill, 2023 – introduced in the Lok Sabha on the last day of the monsoon
session – include key changes to deal with offenses of terrorism, crimes against women,
corruption in election processes and acts that are against the State.
The Bills hold the potential to shape the future landscape of criminal law. Therefore, testing their
sustainability; efficacy; adherence to the rule of law; and, justice delivery capacity, becomes
paramount. While some applaud this move to decolonize the existing criminal infrastructure,
many others have questioned the move as being abrupt and without proper public consultation,
which we will analyse at the last of the paper.

OVERVIEW:
In a move that prompted criticism from the opposition, the three Bills were introduced in the Lok
Sabha on August 11 and have now been sent to a parliamentary standing committee for further
reading and approval.
Speaking in the Lok Sabha, Union Home Minister Amit Shah revealed that the formulation of
the three laws involved extensive deliberations with various stakeholders over the last four years.

In 2020, the Home Ministry constituted a Committee for Reforms in Criminal Laws1 set up at
the National Law University, Delhi under the chairmanship of then Vice-Chancellor, Prof Ranbir

1HindustanTimes,https://www.hindustantimes.com/india-news/union-home-minister-amit-shah-introduces-bills-to-
overhaul-india-s-criminal-justice-system-in-parliament-101691778664127.html( last visited Sep 23,2023).

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Singh. Shortly after the formation of this Committee in 2020, stakeholders in the criminal justice
system flagged concerns over the constitution and functioning of the body.

OBJECTIVE OF CRIMINAL LAWS?

Now, there are many parameters for judging whether any criminal law is good or bad but
according to my understanding there are three parameters-
Firstly, Is there timely justice?
Secondly, did the accused get a fair trial?
Thirdly, did the victim get a fair compensation?
Actually, let’s come before this, Why were these acts made, and why are they written?
So, there are three good things for this- Knowledge, Uniformity& Certainity.
Now, we will come to our three existing criminal laws. First, we will understand this and then we
will understand the new criminal bills.
So, first is the Indian Penal Code or IPC. It tells about when an act becomes a crime, if it
becomes, then what will be the punishment?
After this is the Criminal Procedure Code or CRPC- It talks about the procedure of arrest,
investigation, bail, and trial, and lastly, The Evidence Act, as the name suggests talks about the
admissibility, burden of proof, and expert opinion of evidence.
If we simply understand with an example-
Let’s assume that a murder has occurred. Now the act, whether it is murder or not, if it is, what
will be the punishment for it, will be told by IPC. Now, if the murder has occurred then how will
that person be arrested, how will the investigation be done, and what will be the rights of the
accused that will be told by CRPC. And finally, the Evidence Act talks about the admissibility of
evidence.
All these Acts are amended from time to time as per the needs or view of society, by view of
increase in the crime.

WHAT WAS THE PROBLEM IN THE EXISTING LAWS?

“From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by
the British. I can assure the House that these bills will transform our criminal justice system. The
aim will not be to punish, it will be to provide justice. Punishment will be given to create a

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sentiment of stopping crime,”2 Shah said while noting that the laws made by the British were full
of signs of slavery and clearly aimed at punishing those opposed to their rule.
So, these laws were made by the Britishers. First of all the objective of making them was to
exploit the resources of India and to stop any kind of revolt from happening. Along with this, in
Parliament, Mr. Amit Shah said that in these laws, there are still in more than 400 places the
British Crown is mentioned which even after 75 years of Independence shows the colonial
slavery. Apart from this, there are other problems in the existing criminal laws. Like, they are
gender-neutral, they have complicated structures, etc., and all these problems are addressed in
new bills.
WHICH NEW BILLS WILL REPLACE THE IPC, CRPC & THE
EVIDENCE ACT?
For this purpose, Home Minister Amit Shah introduced these three bills to overhaul India's
criminal justice system:

1. The Bharatiya Nyaya Sanhita Bill, 2023 (to replace the Indian Penal Code)
2. The Bharatiya Sakshya Bill, 2023 (to replace The Indian Evidence Act, 1872)
3. The Bharatiya Nagrik Suraksha Sanhita Bill, 2023 (to replace The Code Of Criminal
Procedure, 1973)

The Bills have been framed after extensive consultation with several stakeholders, including
Supreme Court and High Court Judges, Law Universities, Chief Ministers, Governors, etc., with
the Committee’s recommendation.

WHAT IS NEW IN NEW CRIMINAL BILLS?

1. THE BHARTI NYAYA SANHITA BILL,2023: To replace the Indian Penal Code,
Bhartiya Nyaya Sanhita has been proposed. In the old Act, there were a total of 576 sections
which are only 356 in the new Bill. It has been discussed to modify around 175 sections, 8 new

2 Drishtiias,https://www.drishtiias.com/daily-updates/daily-news-editorials/reforming-country-s-criminal-justice-
system,(last visited Sep 24,2023)

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provisions have been added and 22 sections have been told to be removed, which will be added
in the new bill in some other way. If we compare IPC and BNSB,2023 Bill:

PROVISIONS REMOVED FROM THE NEW BILL:

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Section 14- Servant of Government Section 309- Attempt to commit suicide.

Section 18- India Section 310 to 311- Thug and punishment for thug

Section 29A- Electronic record Section 376DA&376DB-Gangrape on women under the

age 16 and 12 respectively.
Section 50- Person arrested to be informed of grounds of
arrest and of right to bail.

Section 53A- Construction of reference to transportation.

Section 377-Sexual intercourse against the order of nature
Section 124A- Sedition
Section 444-Lurking house trespass at night
Section 153AA- Punishment for knowingly carrying arms
in procession Section 446-Housebreaking at night

Section 254- Delivery of coin as genuine, which when first Section 497- Adultery
possessed, the deliverer did not know to be altered. Section 264 to 267- Offences relating to weights and
measures.

PROVISIONS ADDED

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Section 48- Abetment outside India for offenses in India

Section 69- Sexual intercourse by deceitful means or false promise to marry

Section70(B)- Gangrape on women under the age of 18

Section 93- Hiring, employing, or engaging a child to commit an offense

Section 101(2)- Punishment for mob lynching

Section 104(2)- Punishment for non-reporting of rash or negligent act causing death

Section 109- Organised crime

Section 110- Petty organized crime or organized in general

Section 111- Offence of terrorist act

Section 115(3)- Grievous hurt causing permanent disability or persistent vegetative state(4).
Hurt caused by a mob

Section 150- Acts endangering sovereignty, unity, and integrity of India

Section 224- Attempt to commit suicide to compel or restrain the exercise of lawful power

Section 302- Snatching

Key Highlights of the Proposed Changes

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● The bill prescribes provisions for new offenses such as organized crimes, offenses for
terrorist acts, mob lynching, and a modified provision for sedition i.e., Section 150.
● The bill prescribes imprisonment of 20 years or life imprisonment for gang rapes and the
death penalty for the rape of a minor. In addition to the same, the bill also prescribes
imprisonment of 10 years for sexual intercourse under the false pretext of marriage and
deceitful means.
● The bill also prescribes community services as a punishment for committing certain
specific offences, which was much needed in India
● The bill doesn’t prescribe any provision for the offence of adultery nor does it have any
provision criminalizing unnatural sexual offences against men.

2. THE BHARTIYA NAGARIK SURAKSHA SANHITA BILL, 2023:After

this, instead of the Code of Criminal Procedure, The Bhartiya Nagarik Suraksha Sanhita has been
proposed. There were 484 sections which have now become 533 in the new bill. 9 new
provisions have been added here and there are 10 such sections that have been removed and
added in some other way. If we compare the new bill with the old law.

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Provisions deleted in the New Bill
Section 8- Metropolitan Areas
Section 10-Subordinate of Assistant Sessions Judges
Section 16-Courts of Metropolitan Magistrates
Section 17- Chief Metropolitan Magistrate and
Additional Chief Metropolitan Magistrate
Section 18-Special Metropolitan Magistrates
Section 27-Jurisdiction in case of Juveniles
Section 144A- Power to prohibit carrying arms in
Procession or mass drill or mass training
With arms.
Section 153-Inspection of weights and measures
Section 166A- Letter of request to competent authority
For investigation in a country or place
Outside India.
Section 166B- Letter of request from a country or place
Outside India to a Court or an authority
For investigation in India
Section 197(3B)-Prosecution of Judges and public
Servants
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Provisions added in the New Bill
Section 86-Identification and attachment of property of
Proclaimed person
Section 105-Recording of search and seizure through
audio-video electronic means.
Section 112- Letter of request to the competent authority
for Investigation in a country or place outside
India.
Section 113- Letter of request from a country or place
outside India to a court or an authority for
Investigation in India.
Section 336- Evidence of public servants,experts, and
police officers in certain cases.
Section 356- Inquiry, trial or judgement in abstentia of
Proclaimed offender
Section 398- Witness protection scheme
Section 473-Mercy Petition in death sentence cases
Section 479- Bail and bond
Section 355- Metropolitan Magistrate’s judgment.
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Key Highlights of the Proposed Changes

● The bill proposes to add a new provision specifically prescribing that a copy of the FIR is
made available to the accused and the victim free of cost and within fourteen days from
the date of production or appearance of the accused.
● The bill also proposes to include new methods such as examination through video
conferencing and other electronic means in line with the technological advancements in
the present-day context. The bill also makes videography of statements made by
survivors of sexual violence mandatory, in order to protect any manipulation later.
● The bill prescribes mandatory summary trials for cases which are petty/less serious and
pre-consultation of victims before the withdrawal of cases lodged for offenses punishable
for more than seven years.
● The bill has modified the period of police custody for an arrested person from 60 days to
90 days and prescribed a time period for filing mercy petitions within thirty days before
the Governor and sixty days before the President.3

3. BHARTIYA SAKSHYA BILL, 2023: Instead of The Evidence Act, the Bhartiya
Sakshya Bill 2023 is proposed. The Act now has 167 sections and the new bill has 170 sections.
The proposed provisions will allow witnesses, accused, experts, and victims to appear through
electronic means.

These 5 sections have been removed from IEA and a new section has been added.

3 Deccanhelrald https://www.deccanherald.com/india/unravelling-the-new-bharatiya-criminal-law-bills-
2653712( last visited on Sep 24,2023)

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Provisions deleted in the new bill Provisions added in new Bill

Section 3(j)- India

Section 82-Presumption as to document admissible in

England without proof of seal or signature.
Section 61- Admissibility of electronic or digital record
Section 88- Presumption as to telegraphic messages

Section 113- Proof of cession of territory

Section 166- Power of jury or assessors to put questions

Key Highlights of the Proposed Changes

● The bill, as an attempt to revamp the methods of collecting evidence, prescribes the
admissibility and legal validity of electronic or digital records as documentary evidence
and also prescribes expert opinion as a recognized form of evidence.
● The bill also prescribes videography during the raids and during the process of
investigation.
● The most important aspect of this bill is that it has introduced the presumption of
innocence to be the fundamental principle of the Indian criminal justice system, which is
a commendable step.
● It also allows electronic evidence to have the same legal value as documents and seeks to
expand the scope of secondary evidence to include copies made from the original by
mechanical processes as proof of evidence.

“The existing law (IEA) does not address the technological advancement undergone in the
country during the last few decades,” the statement of object and reasons for BSB states.
WAY FORWARD FOR THE PROPOSED BILLS:

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Based on the holistic overview of the bills, it can be easily inferred the proposed modifications
are major with an intent to simplify the criminal justice system and modernize the same at the
same time. It is evident that the intent of the government is to address the changing psychology
behind crimes, and modern technology, and reflect the same in the concerned legislation.
The introduction of new offenses which were much needed such as organized crime, terrorism
offenses, endangering sovereignty, mob lynching, sexual intercourse by deceitful means, and a
false promise to marry, which were absent in the previous statute, have been introduced in the
proposed statute which is expected to bring exceptional results.
The newly introduced bill prescribing stricter punishment for crimes against women and
children is a welcoming move. The bills also ensure accountability of officers, time-bound trials,
etc. which will be considered high points of the bills in the coming times.
The bills have been introduced keeping in mind the technological advancement that has been
made to date and endeavors to include the same within the criminal justice system of the country,
and it is expected that it will eventually increase the utilization of electronic evidence from the
investigation process to the adjudication process.
Despite being a reformative legislative initiative, the implementation of the said bills might pose
challenges before the government since the same has been framed through a narrower
consultation process from the stakeholders and based on existing infrastructure. However,
modifications in the legislative framework would also require modification in every related
aspect in order to be implemented in its letter and spirit.

WHAT ARE THE ISSUES IN THE CURRENT CRIMINAL JUSTICE

SYSTEM OF INDIA?

■ Pendency of Cases: According to the National Judicial Data Grid, there are over
4.7 crore cases pending in Indian courts across different levels of the judiciary. This
leads to delays in justice delivery, violation of the right to speedy trial, and loss of
public trust in the system.
■ Lack of Resources and Infrastructure: The criminal justice system suffers from
inadequate funding, manpower, and facilities. There is a shortage of judges,
prosecutors, police personnel, forensic experts, and legal aid lawyers.

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○ For a country of 135 million, there are only 21 judges per million
population (as of February 2023).
○ There are almost 400 vacancies in the high courts. Around 35% of
the posts are lying vacant in the lower judiciary.
■ Poor Quality of Investigation and Prosecution: The investigation and prosecution
agencies often fail to conduct thorough, impartial, and professional investigations.
They face interference from political and other influences, corruption, and lack of
accountability.
■ Human Rights Violations: The criminal justice system is often accused of
violating the human rights of the accused, victims, witnesses, and other
stakeholders. There are instances of custodial torture, extrajudicial killings, false
arrests, illegal detentions, coerced confessions, unfair trials, and harsh punishments.
■ Outdated Laws and Procedures: The criminal justice system is based on laws and
procedures that were enacted by the British in 1860. These laws are archaic and not
in tune with contemporary times. They do not address new forms of crimes such as
cybercrime, terrorism, organized crime, mob lynching, etc.
■ Public Perception: The Second ARC has noted that police-public relations are
unsatisfactory in India because people view the police as corrupt, inefficient, and
unresponsive, and often hesitate to contact them.4

WHAT IS THE SIGNIFICANCE OF THE PROPOSED REFORM?

■ The reform aims to modernize and simplify the criminal laws, which are outdated
and complex. The reform will make the laws more in tune with the Indian spirit and
ethos, and reflect the changing nature of crime, society, and technology.

4 TheHinduhttps://www.thehindu.com/opinion/op-ed/new-bills-and-a-principled-course-for-criminal-law-
reforms/article67202560.ece( last visited on 18, Sep,2023)

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■ The reform will repeal the draconian sedition law under Section 124A of the IPC,
which has been widely criticized for being misused against dissenters and critics of
the government.
○ The reform will also introduce new offenses such as terrorism,
corruption, mob lynching, and organised crime, which are not
adequately covered by the existing laws.
■ The reform will make some of the sexual offences gender-neutral, by including
men and transgenders as potential victims and offenders, in addition to women.
■ The reform will increase the use of electronic evidence and forensics during
investigation, prosecution, and adjudication.
■ The reform will empower the citizens, by allowing them to register a police
complaint in any police station, regardless of the location where the crime took
place. The reform will also provide for effective protection of the constitutional
rights of citizens, such as the right to life, liberty, dignity, privacy, and fair trial.

WHAT ARE THE ISSUES IN THE CURRENT PROPOSED REFORMS TO

THE CRIMINAL JUSTICE SYSTEM?

● Lack of Consultation and Transparency: The bills were drafted by a Criminal Law
Reforms Committee,2020.

○ The composition did not include any representatives from the

judiciary, the bar, the civil society, or the marginalized communities.
The committee also did not make its report or draft bills public for
wider consultation and feedback.
■ Potential Violation of Human Rights: The bills have been criticized for using
vague and broad terms that could infringe on the human rights of the accused,
victims, witnesses, and other stakeholders.
○ For example, the BNS introduces a new offence of “acts
endangering sovereignty, unity and integrity of India” under

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Section 150, similar to the repealed offence of sedition under Section

124A of IPC. This could be used to suppress dissent and free speech.
○ Similarly, the BSB allows confessions made before a police officer
to be admissible as evidence under Section 27A, which could
increase the risk of custodial torture and coercion.
○ The BNSS also gives wide powers to the police to arrest, search,
seize, and detain without any judicial oversight or safeguards.
■ Lack of Coherence and Consistency: The bills have been accused of being
inconsistent and contradictory with each other and with other existing laws. For
example,
○ The BSB also introduces a new standard of proof for conviction
from “beyond reasonable doubt” to “clear and convincing evidence”,
which is not defined or explained in the bill.
○ The BNSS also creates a new category of offences called “social
welfare offences” that can be dealt with by imposing fines or
community service, but does not specify which offences fall under
this category.

WHAT NEEDS TO BE DONE?

To address the challenges and potential shortcomings in the proposed reforms a more inclusive
and comprehensive approach is needed.

■ Inclusive Consultation: Initiate a broader consultation process involving all the

stakeholders including the general public to accommodate diverse perspectives
before implementing any reforms.
■ Human Rights Safeguards: To explicitly incorporate human rights principles and
safeguards clearly define and narrow down vague terms to prevent potential misuse.
■ Coherent Legal Framework: Ensure consistency and coherence across the
proposed bills and other existing laws.

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■ Technology Integration: Enhance the use of technology in the criminal justice

process, including digitized evidence collection, online proceedings, and video-
recorded statements for quicker trials, reduced backlog, and enhanced transparency.
■ Capacity Building: Invest in training, recruitment, and infrastructure to bolster the
capacity of law enforcement agencies, judiciary, and legal aid services. Adequate
resources will lead to a more efficient and fair administration of justice.
■ Restorative Justice: Embrace restorative justice principles that focus on
reconciliation, restitution, and rehabilitation to address the root causes of crime,
reduce recidivism, and provide closure to victims.
■ Public Awareness: Awareness campaigns to educate the public about their rights
and responsibilities within the criminal justice system to improve police-public
relations.

By pursuing these progressive steps, we as a nation can work towards a criminal justice system
that upholds the rule of law, protects human rights, and effectively serves the needs of its diverse
population.

OPINIONS OF EMINENT JUDGES AND LAWYERS:

But what does the legal fraternity think about these proposed changes? Are they really a
departure from our colonial-era laws? Here are some thoughts of noted criminal lawyers and
former judges to find out this answer-

Old wine in a new bottle: Senior Advocate Rebecca John

According to Senior Advocate Rebecca John, the changes may cause more harm than good." To
a great extent, it's old wine in a new bottle. Essentially, they've altered the section numbers, and
this adjustment could pose significant challenges for both legal practitioners and judges," she
said.

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Elaborating further on the difficulties the new laws could pose for lawyers, she said,"Over the
past several decades, we've become accustomed to a particular structure, and this shift might
create difficulties in interpretation and application. If you retain much of the substance but
change the section placements, then it is not really a creative exercise. Now you suddenly say
302 is not 302 but it's 101. It'll take me a while to remember that!" John added that the new
provisions are mostly incomprehensible.

"If you were to look at the explanation to Section 150, which is the modified version of Sedition,
it’s an incomplete section. You can't make head or tail of it."

Referring to mob lynching being made punishable under the new law, John said,"Lynching has
been included as murder. It is punishable with death or imprisonment for life or imprisonment to
seven years. How is it justifiable when murder is punishable with death or life imprisonment? It
gives the impression that the drafting committee was not serious in punishing crimes of this
nature."

Only the future can reveal the impact on court proceedings: Former Supreme Court judge,
Justice BN Srikrishna
The Indian Penal Code and Evidence Act have withstood the test of time and served well, said
retired Supreme Court judge Justice BN Srikrishna.

"I do not know if the new Acts have the same terseness in definitions which is the hallmark of
good legislation. As for their functionality and impact on court proceedings, the future only can
tell," he said.

Shuffled provisions like a pack of cards: Former Madras High Court judge K Chandru
Justice K Chandru raised the question of why a complete overhaul of the Indian Penal Code was
undertaken without any public discussion.

"Even a thana police will know by heart IPC's provisions...CrPC was newly enacted only in 1973
and what is the need for its sudden change? Millions of copies of the various forms made under it

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will have to be discarded now by courts and law enforcement agencies. Why is this changing
provisions upside down like shuffling them as a pack of cards? Even if you give 420 any other
section number, it will still be called "char sau bees" only," he remarked.

"Let us not waste our time like Tughlaq who frequently changed his capitals and whose memory
you had desperately wanted to erase in Delhi. No more Tughlaq Adhiniyams. Enough is
enough," he opined.5

CONCLUSION:

In my opinion, the three new criminal bills are a welcome step towards revamping and reshaping
the Indian judicial system. Change is the law of nature and changes in the criminal law are the
need of the hour. The three criminal major acts were implemented more than a hundred years
ago and were in dire need of modifications.

By pursuing these progressive steps, we as a nation can work towards a criminal justice system
that upholds the rule of law, protects human rights, and effectively serves the needs of its diverse
population.

BIBLIOGRAPHY:

● https://www.deccanherald.com/india/unravelling-the-new-bharatiya-criminal-law-bills-
2653712eplacing-ipc-crpc-evidence-act-234984
● https://www.drishtiias.com/daily-updates/daily-news-editorials/reforming-country-s-
criminal-justice-system
● https://www.insightsonindia.com/2023/09/09/editorial-analysis-an-overhaul-the-criminal-
law-bills-and-the-big-picture/
● https://www.thehindu.com/opinion/op-ed/new-bills-and-a-principled-course-for-criminal-
law-reforms/article67202560.ece
● https://www.barandbench.com/columns/comparative-analysis-of-code-of-criminal-
procedure-1973-and-bharatiya-nagarik-suraksha-sanhita-2023

5 BarandBenchhttps://www.barandbench.com/columns/aap-chronology-samjhe-introduction-of-new-
criminal-law-bills-government-lawyers-concerns( last visited onSep 24,2023)

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● https://www.barandbench.com/columns/aap-chronology-samjhe-introduction-of-new-
criminal-law-bills-government-lawyers-

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