General statutes of criminal law are here for the ages. They will affect the lives of the whole population of India including the economically weaker Sections and the marginalized. General statutes of criminal law have to be crafted with utmost care, it is imperative to scrutinize and dissent when necessary. The following is an examination of the Criminal Law Bills, aiming to shed light on their potential ramifications and stimulate critical discussion. In an effort to ensure that the principles of justice and fairness remain at the heart of our legal system, this dissent seeks to address concerns, ensure due process is followed, spark debate, and advocate for a more equitable and balanced approach to the new criminal legislations under consideration of the Parliamentary Standing Committee on Home Affairs.

INDEX

Particulars	Page No.
1. Methodology and Procedure of this Committee in Drafting these Reports	1
2. Demerits of the Draft Report	9
3. Annexure A- Intervention- Parliamentary Standing Committee on Home Affairs (Part I)	23
4. Annexure B- Intervention- Parliamentary Standing Committee on Home Affairs (Part II)	38
5. Annexure C – Letter to Chairman Dated 19 August 2023	58
6. Annexure D – Letter to Chairman Dated 11 September 2023	59
7. Annexure E – Letter to Chairman Dated 13 September 2023	61
8. Annexure F – Letter to Chairman Dated 14 September 2023	64
9. Annexure G – Letter to Chairman Dated 22 September 2023	67
10. Annexure H – Letter to Chairman Dated 27 September 2023	68
11. Annexure I – Letter to Chairman Dated 3 October 2023	74
12. Annexure J – Letter to Chairman Dated 23 October 2023	76
13. Annexure K – Letter to Chairman Dated 30 October 2023	81

A. METHODOLOGY AND PROCEDURE OF THIS COMMITTEE IN DRAFTING THESE REPORTS

I. NO NEED FOR NEW BILLS WHICH ARE 93% COPY PASTE LEGISLATION

The fact that approximately 93% of the existing Criminal Law remains unaltered, 18 out of 22 chapters have been copy pasted in these new bills implies that the pre-existing legislation could have been effortlessly modified to incorporate these specific changes. It appears that there was no requirement for an entirely new legislative framework, mostly for the purpose of renumbering and reorganizing the existing legal provisions.

*** . Suspicion is generated whether the effort is in vain and malafide.

II. *** COMMITTEE PROCEDURE AND AVOIDING QUALITY STAKEHOLDER CONSULTATION

I would like to highlight the glaring gaps in the methodology of drafting this report. The current process lacked inclusivity in stakeholder consultations required for legislation of such magnitude. ***. Many of the people called to testify had strong leanings or were associated with the ruling dispensation. Multiple verbal and written requests made by the undersigned to invite experts and practitioners to testify before this committee were, unfortunately, ***. (See Annexure- E, F, G, H, J)

Also, a broader spectrum of opinions, especially from those directly impacted, must be sought to ensure a comprehensive understanding and representation of diverse perspectives. *** Yet again, important legislation is being *** and imposed.

In 2020, the Ministry of Home Affairs established a committee led by Prof. Ranbir Singh, the former Vice Chancellor of the National Law University,

Delhi, to undertake a comprehensive review of the three codes of criminal law. However, it is essential to note that this committee was marked by a striking lack of diversity. All its members were male, and what’s more, they shared not only a common gender but also a similar social identity, professional background, and experience.

Regrettably, the committee lacked representation from various marginalized groups, including women, Dalits, religious minorities, adivasis, LGBTQ individuals, and those with disabilities. The absence of such diverse perspectives is a significant concern, particularly when addressing matters of such magnitude and societal impact.

In a country as diverse as India, where a wide range of perspectives, interests, and concerns need to be addressed, diverse and extensive stakeholder consultation is essential to ensure that laws are fair, effective, and capable of addressing the complex and multifaceted challenges facing the nation. It not only enhances the quality of legislation but also promotes a more inclusive and accountable democratic process.*** .

Lakhs of stakeholders including judges, lawyers, students, paralegals, will have to relearn the laws. Relearning new laws can disrupt established legal practices and procedures, potentially causing confusion and delays in the legal system. Significant resources may be required to update educational materials, provide training, and ensure stakeholders are adequately prepared to work with the new laws. Relearning new laws can be a complex and resource- intensive process that has a significant impact on the legal community, potentially affecting the delivery of legal services and the consistency of legal decisions.

In any case, the government has only sought inputs after the introduction of this bill. By seeking input before introducing a bill, the government can involve a broader range of perspectives, including those of experts,

affected communities, and the general public. This would have ensured that diverse voices are considered in the lawmaking process, promoting inclusivity and democratic values.

I strongly recommended some consultations due to their critical importance. (Please refer Annexure A)

III. NAMES OF THESE BILLS SHOULD BE IN ENGLISH AS WELL AS HINDI.

The names of these Bills being in Hindi is not suitable for the whole of the country. This can not only be called Hindi imposition but is also unconstitutional. Article 348 of the Constitution mandates that English language be used in Acts and Bills. It reads-

“348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc

…

(b) the authoritative texts

of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
- of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and
- of all orders, rules, regulations and bye laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.”

But the report still considers it to be constitutional. In fact it even goes on to propose use of Hindi in more places by saying- “The Committee recommends that the word “Act” in the first proviso may be replaced with “Adhiniyam” as is already used in preceding portions of the Bill.” This goes against the letter and

spirit of Article 348 of the Constitution.

Funnily enough, the report of the committee in Hindi only came a night before the adoption.

Suggestion: NAMES SHOULD BE IN ENGLISH AS WELL AS HINDI. When

translated into English, the titles of these bills would be: the Indian Justice Code, 2023, the Indian Citizen’s Protection Code, 2023 and the Indian Evidence Bill, 2023. If the new law is titled the Indian Citizen’s Protection Code, 2023. It will reflect the idea of a procedural shield for citizens against the State in the criminal process.

Use of these laws in local languages is also essential to enhance understanding and engagement, ensuring that information is accessible to a broader audience and fostering a deeper connection with the content, thereby promoting effective communication and inclusivity.

IV. LACK OF DISCUSSION AMONGST MEMBERS OF THE COMMITTEE AND LIMITING THE MEANINGFUL PARTICIPATION OF THE OPPOSITION.

It is clear that a consultation process unfolded, with ***. The urgency to conclude discussions on bills that could significantly alter our nation’s safety and law and order regulations raises concerns about the democratic and informed nature of the decision-making process. General statutes of criminal law are here for the ages. General statutes of criminal law will affect the lives of the poor. General statutes of criminal law have to be crafted with utmost care.

Furthermore, *** . As a result, meetings were scheduled during the festive season and when members had prior constituency engagements, programs and events. ***. Allowing the opposition only a meager hour to scrutinize and critique these bills is far from an exhaustive exercise in

scrutiny, which is vital to ensuring that such consequential legislation is thoroughly examined and rigorously debated.

V. *** TO ADOPT REPORT RIDICULES LEGISLATIVE SCRUTINY- ONLY A STUNT BEFORE ELECTION 2024.

***.

***

Given the far-reaching consequences associated with these bills, they necessitate a meticulous examination of every provision. Basic drafting errors require close scrutiny, and various aspects, including the rationale behind specific provisions and their potential impact on the public, demand thorough examination and extensive discussion. Hasty passage of these bills may result in unintended consequences and contribute to public dissatisfaction.

The urgency with which these bills are being pushed through stands in stark contrast to the deliberative process observed by the same Home Affairs Committee in discussing Police Training, Modernization, and Reforms. It is worth noting that the committee, initially constituted in September 2020 and later reconstituted in September 2021, took approximately three years to deliberate on that subject, underscoring the importance of careful consideration and comprehensive evaluation in the legislative process.

***

VI. A RESULT OF RUSHING AND ***- NUMEROUS DRAFTING ERRORS

It is imperative to emphasize the presence of basic drafting errors within these bills, as these errors can have a profound impact on the interpretation and implementation of the proposed laws. Correcting these errors is not just a matter of procedural correctness; it is crucial for ensuring the clarity and effectiveness of the legislation.

My colleagues Shri N. R. Elango and P. Chidambaram have diligently pointed out a multitude of drafting errors, underscoring the need for thorough revisions. However, the rushed nature of this legislation has left limited room for addressing these critical concerns.

Furthermore, it is regrettable that the committee did not allow for more extensive consultations, *** . The absence of such deliberation and due process further compounds the risk of perpetuating these drafting errors, ultimately diminishing the quality and efficacy of the proposed laws.

VII. ABSENCE OF PUBLIC ENGAGEMENT

The manner in which this legislative process has been conducted raises legitimate concerns about lack of transparent and honest legislative intent. Crafting laws, especially those bearing such extensive significance, should ideally be carried out with utmost transparency and inclusive consultation among all concerned parties.

The Pre-Legislative Consultation Policy of 2014, which is designed to ensure a fair and open process, mandates a thirty-day consultation period with the general public before a law can be approved by the Cabinet for introduction in Parliament. This consultation process, which involves sharing the draft with the public, must be accompanied by (i) explanations for its enactment,

(ii) financial considerations, and (iii) an evaluation of the law’s potential impact. Moreover, the comments received during the consultation should be made available on the ministry’s website.

In the present case, however, a committee was formed with its members and objectives *** There exists a notable absence of a clear and compelling rationale for why such a substantial reform was undertaken, especially considering that, according to the Home Minister’s own statement in Parliament, the primary objective appeared to involve alterations to a few specific Sections of the law. This lack of transparency and insufficient justification raises questions about the intentions behind the legislative process.

In addition to these concerns, while these bills claim to be decolonised, the retention of certain provisions contradicts this narrative. A more comprehensive effort towards decolonisation is needed to truly reflect the evolving needs of our society. There are many concerns still arising from these Bills and I will once again point out some of the major concerns.

B. DEMERITS OF THE DRAFT REPORT

PENAL CODE (BNS)

I. Clause 5 Commutation of a sentence

The clause gives the executive the powers to commute an offender’s sentence punishment for any other punishment. Allowing the executive to commute sentences can blur the separation of powers in a government. It gives the executive branch, which is responsible for enforcing the law, a role in altering or mitigating the legal punishments determined by the judiciary. This could potentially lead to an imbalance of power and an infringement on the judiciary’s independence. Executive decisions might be swayed by electoral or popularity concerns rather than solely focusing on justice and the merits of individual cases.

Commutations can be seen as undermining the authority and decisions of the judiciary. It may give the impression that the executive branch can override or second-guess the judiciary’s determinations, eroding trust in the legal system.

II. Clause 11 Solitary Confinement

This clause should be reconsidered as solitary confinement is inhumane. Research has shown that solitary confinement is not an effective tool for deterrence or rehabilitation. It does not reduce recidivism or promote positive behaviour change; instead, it can increase aggression and antisocial behaviour. It has been shown to have serious detrimental effects on individuals’ mental and physical well-being, and it raises ethical and human rights concerns. The characterization of solitary confinement as a brutal type of incarceration by the Supreme Court of India in the case of Kishore Singh Ravinder Dev v. State of Rajasthan highlights the court’s recognition of the severe and adverse effects of solitary confinement on individuals.

III. Clause 69 – Promise to Marry

Relationships and decisions about marriage are deeply personal matters that should be left to the individuals involved, subject to only some basic safeguards that may be consensually instituted by the society Criminalizing a Promise to Marry can be seen as an undue intrusion into individuals’ Right to Privacy and autonomy. Determining whether a promise to marry has been made can be subjective and challenging to prove. Intentions can change over time, and proving that a promise was genuinely made with the intention to marry can be difficult.

Defining what constitutes a legally binding Promise to Marry can be vague and open to interpretation. This lack of clarity can lead to inconsistencies in enforcement and judgments.

Criminalizing a Promise to Marry can be viewed as an unwarranted intrusion into the fundamental Right to Privacy and personal autonomy, which are cherished principles in a democratic society. In this context, a more nuanced and rights-based approach to addressing matters related to promises to marry would be both pragmatic and respectful of individual freedoms and choices.

IV. Kidnapping and begging-Clause 137

The clause should exclude the exception of lawful guardian of such child. Even guardians who wrongfully push children into begging should be rigorously punished. Excluding the exception of lawful guardians in a clause punishing those who wrongfully push children into begging is essential to safeguard the rights and well-being of vulnerable children. It sends a strong message that all individuals, regardless of their legal relationship with the child, will be held accountable for such harmful actions, acting as a powerful deterrent against child exploitation. This approach prioritizes the child’s best interests, prevents potential legal loopholes, and aligns with international human rights standards, fostering a child-centered and protective legal

framework that leaves no room for evading responsibility in cases of child exploitation.

V. Sedition law- Clause 150

I would like to include a passage from the report. “The Committee compliments the Government in deleting the term ‘sedition’ from criminal law by rephrasing it without compromising the security of the state. The Committee finds it as a very progressive development.”

The Report acknowledges the fact that the Sedition law has just been paraphrased and retained. The 22nd Law Commission suggested that sedition should be well defined. The Union government decided to do the opposite of that. The provision in the new bill gives it such a broad definition that it can encompass any act in the name of endangering the unity and integrity of India. It leaves a lot of room for discretion which is the opposite of what was advised by the law commission. Clause 150 talks about Acts endangering sovereignty, unity and integrity of India. Sedition gets a sinister backfoot entry in the proposed legal regime. This broad definition could potentially infringe on individuals’ rights to free expression and peaceful dissent.

The broad and vaguely worded sedition provisions can create a chilling effect on free speech and peaceful protest. Individuals may self-censor their opinions and criticisms, fearing legal consequences, which can undermine democratic values and civil liberties.

Our concerns are rooted in the potential for misuse and abuse of the redefined sedition law. Such broad and discretionary provisions can be employed to stifle legitimate dissent and criticism, limiting freedom of expression and potentially infringing on individuals’ rights.

VI. The problem with not defining community service.

The introduction of Community Service ‘under clause 4(f) of the BNS is a welcome step. In criminal justice systems that emphasize rehabilitation, community service provides an opportunity for offenders to make amends for

their actions and demonstrate their commitment to positive change. It can help them develop a sense of responsibility and contribute positively to society and aligns with the principles of restorative justice. But the same is nothing without giving a proper definition to it. A clear definition will outline the objectives and goals of Community Service, ensuring that both offenders and those responsible for overseeing its execution understand the intended outcomes. It will specify the nature and scope of the service, such as the types of activities, the duration, and the target beneficiaries.

VII. Clarity in definition of life sentence

The current definition of “imprisonment for life” within the BNS is not explicitly clear. It appears to be using the term “imprisonment for the remainder of a person’s natural life.” However, in the Indian Penal Code (IPC), Section 53, the term “imprisonment for life” is used without specifying whether it means “imprisonment for the remainder of a person’s natural life” or if it is equivalent to a “whole life sentence.”

There needs to be clarity about whether the convicts are expected to remain in prison for the entirety of their natural life or are eligible for release. The proposed definition of “imprisonment for life” in the BNS is not explicitly clear, and it differs from how “imprisonment for life” is generally understood in the context of the Indian Penal Code. To avoid confusion and ensure legal clarity, the definition in the BNS be aligned with the understanding that “imprisonment for life” means a “whole life sentence” unless otherwise specified. This would help in harmonizing the definitions and interpretations across different legal contexts in India.

VIII. Offences Relating to Elections

punishment are rigorous in the procedural safeguards, they offer the accused. The emphasis being that there are checks and balances present in the quest of the state to prosecute and the efforts of the accused to defend herself. Any detraction from the procedural protections that general criminal law offers, will have checks in place in these special statutes. Offences related to elections should be on Representation of People Act. Similarly with UAPA, the special legislation should remain and amended if need be. But it should not be subsumed in the IPC.

IX. Clause 264 – Defamation

There should be a limitation on filing cases for defamation. Imposing a time limitation on defamation claims helps protect the fundamental principle of free speech. Without such limitations, individuals or organizations could potentially bring defamation claims many years after an alleged defamatory statement was made. This could have a chilling effect on free expression and public discourse, as people may become reluctant to express their opinions or engage in critical discussions for fear of facing legal action at any time in the future.

X. Clause 282- Conveying person by water for hire in unsafe or overloaded vessel

Looking at the gravity of the offence, punishment should be increased that from 6 months to 3 years.

XI. Clause 277- Fouling water of public spring or reservoir.

Looking at the gravity of the offence, punishment should be increased.

XII. Clause 275- Sale of adulterated drugs.

Looking at the gravity of the offence, punishment should be increased.

XIII. Clause 275 and 276- Sale of adulterated drugs.

Looking at the gravity of the offence, punishment should be increased.

XIV. 104(1)- Death by negligence

In medical negligence cases, the standard of care expected of healthcare professionals is crucial. Punishment should be based on whether the healthcare provider’s actions or decisions deviated from the accepted standard of care within the medical community. Not all adverse outcomes in medicine are the result of negligence. Hence the punishment should be reduced from 7 years to 5 years

XV. Clause 213- Refusing to sign statement

Requiring individuals to sign statements under the threat of imprisonment or fines can be seen as coercive and may result in individuals signing statements against their will. This can undermine the voluntariness of the statement and potentially lead to false or coerced confessions. Hence this provision should be reconsidered.

Criminal Procedure- BNSS

XVI. Impact on the Digital Ecosystem- BNSS

Clause 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which deals with powers to summon for evidence, explicitly includes summoning of “digital evidence,” and covers any electronic communication such as messages, call recordings, and emails, as well as electronic communication devices such as mobile phones, laptops, cameras, and any other electronic device that may be specified by the government through notification in the future. A court also has the right to order search and seizure of such evidence for various reasons, including if the person in possession of the evidence is not expected to produce the same.

because of the scope of information that’s in these devices. Secondly, the collection of such devices might also go against the Right against self-incrimination.

XVII. Non-Inclusion of trans-women in definition of rape- BNS

The Sanhita also leaves the question of inclusivity answered as the provision of rape is strictly limited to a woman and does not include a transgender woman. The Transgender Persons Act, 2019 only recognizes ‘sexual abuse’ for which the maximum punishment is two years. The law on rape should also bring transgender woman within its purview.

XVIII. Different punishments for murder depending on the number of people convicted.- BNS

As per Clause 101 of the BNS, when a man commits murder, punishment is life imprisonment or death. No other option. But if a group of 5+ men acting in concert commits murder on grounds mentioned in this clause, there is an option to give a punishment of 7+ years imprisonment.

XIX. Report suggests criminalizing adultery- BNS

The Supreme Court found that Section 497 acknowledged the Right to Privacy as a fundamental right. The court held that the state should not interfere in the private matters of consenting adults and that their choices in matters of personal relationships should be protected. Moreover, one of the factors that influenced the decriminalization of adultery in India was that there were already civil remedies available for addressing adultery, and it was also considered grounds for divorce under Indian family laws. The Report insists on including a gender- neutral provision criminalizing adultery even after the Supreme Court has already decriminalized it.

XX. Expansion of powers granted to the Police- BNSS

Clause 172 of the BNSS seeks to expand the powers of the police while taking preventive action. The police officer “may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction” under Chapter XII. The Indian Criminal Justice System is based on a due-process model, but giving the Police such wide and discretionary powers during preventive action is essentially pushing us towards a crime- control model. ***.

XXI. Expansion of Police powers- BNSS

Clause 187 (2) and 187 (3) of the BNSS on ‘Procedure when investigation cannot be completed in twenty four hours.’

The extension of the duration for which a detainee can be held in police custody beyond 15 days contradicts the Supreme Court’s ruling in CBI

v. Anupam J. Kulkarni, (1992) 3 SCC 141, which deemed police custody beyond this period impermissible. By elongating the detention period under police custody, the new laws expose detainees to potential threats, abuse, or coercion by the police. The protection of judicial custody, where police require the Magistrate’s permission to interrogate a suspect, has been entirely disregarded and nullified by the new laws. Another telling signature of intensifying police raj is the name of reforms!

XXII. Clause 43(3) on ‘Arrest how made.’ – BNSS

In the case of Prem Shanker Shukla v. Delhi Administration (1980) 3 SCC 526, the Supreme Court unequivocally stated that employing handcuffs is abhorrent to human dignity and infringes upon Article 21 of the Indian Constitution. However, this clause seeks to exert punitive control and is highly indicative of a ‘crime-control model’ than a ‘due- process one.’

Bringing legislation without proper scrutiny is making a *** and the integrity of these institutions are of utmost importance for democratic functioning. Hence, I strongly oppose these Bills.

XXIII. Reconsideration of Death penalty

The following is a glimpse of the statistics about the individuals that get sentenced to death penalty (Source: Project 39A)

1. Economic Background

Based on national statistics, it can be observed that 74.1% of individuals on death row in India come from economically disadvantaged backgrounds, as determined by their occupation and land ownership status. This highlights how the death penalty disproportionately affects the marginalized and disadvantaged in society. Abolishing the death penalty can be seen as a step toward rectifying this social injustice.

2. Educational Background

Among those sentenced to death, 23% had never attended school, while an additional 9.6% had minimal attendance and did not even complete their primary education. It is evident that these groups are disproportionately affected by the provision of death penalty. Abolishing capital punishment can help mitigate this disparity, promote social equity, and protect the rights of minority and marginalized communities.

3. Socio-economic Background

A significant majority, or 76% (279 individuals), of those sentenced to death in India belong to backward classes and religious minority groups.

Death penalty is more than just a form of punishment. Aforementioned data makes it imperative that these aspects are incorporated in our purview. The high prevalence of socioeconomic vulnerability and limited education among death row prisoners raises concerns about the potential for wrongful convictions. It emphasizes the importance of ensuring a fair and just legal system to prevent innocent individuals from facing the ultimate punishment. In its 262nd Report from August 2015, the Law Commission of India recommended the abolition of the death penalty for all crimes, with the exception of cases related to terrorism and acts of war.

Abolition of death penalty has not been considered in this report. Such abolition carries several merits that resonate with principles of justice, human rights, and the advancement of society. Foremost, it eliminates the risk of executing innocent individuals, as errors in the criminal justice system can have irreversible consequences. Abolition also upholds the fundamental Right to Life, recognizing that every individual, regardless of their actions, possesses inherent dignity. Moreover, it aligns with the evolving global consensus that values restorative justice over retribution, focusing on rehabilitation and the potential for redemption. Abolishing the death penalty allows the criminal justice system to focus on rehabilitation and reintegration of offenders into society, rather than permanently ending their lives. This approach aligns with principles of restorative justice and offers a chance for individuals to reform and make amends for their actions. Many countries like Canada, Australia, United Kingdom, New Zealand, Norway, Portugal, South Africa have already done so because of the fact that it can lead to a more humane and enlightened approach to addressing crime and it is disappointing to see a lack of concrete suggestions on the same by the Committee.

The increasing scepticism of the Supreme Court in death row trials is indicative of the fact that this requires institutional redressal. There is a stark contrast between the trial courts and the Supreme Court, as there have been a significant number of acquittals of death row prisoners. When a large-scale institutional reform is required, the death penalty provision should be looked at in context and reconsidered accordingly.

In conclusion, the issue of the death penalty is one that merits careful reconsideration in India and across the globe. The statistics highlighting socioeconomic disparities and the disproportionate impact on marginalized groups, along with the potential for wrongful convictions, underscore the need for a more just and equitable criminal justice system. It is essential to engage in open and informed discussions on this matter to ensure that our legal systems reflect the principles of justice, fairness, and compassion that underpin the values of a modern, progressive society. In sum, broad-based social discussions are warranted on the subject.

XXIV. Accused’s Right to File for Discharge

Unlike Section 227 of the Criminal Procedure Code (CrPC), Clause 250(1) of the BNSS expressly acknowledges the accused’s right to file an application for discharge. It also sets a sixty-day time limit for filing this application from the date of committal to the Sessions Court. While this timeline may seem like a step toward reducing trial delays, it overlooks systemic challenges in our pre-trial processes. Accused individuals often lack timely access to their case papers and may not have legal representation during this stage. Moreover, there can be a significant delay between the Magistrate’s committal of the case to the Sessions Court and its assignment to a Sessions Judge. This gap affects the production of the accused and the receipt of necessary records. When courts consider whether to grant discharge or frame charges, they must evaluate whether there exists a “strong suspicion” supported by material that the accused committed the offense. Addressing issues related to the timely provision of case papers and ensuring early access to legal representation is crucial for making this opportunity to file for discharge meaningful.

XXV. Pre-trial Incarceration

The challenge of challenging forensic reports under Clause 329 is further complicated by Clause 330, which mirrors Section 294 of the CrPC. It eliminates the requirement of formal proof for documents whose genuineness is uncontested by the opposing party. Clause 330(1) necessitates that parties admit or deny the genuineness of documents within thirty days of their supply, with the possibility of extending this time limit at the Magistrate’s discretion upon providing reasons. Notably, a new proviso in Clause 330(1) states that an expert cannot be summoned to appear before the court unless their report is disputed by a party. This proviso applies to all experts, unlike Clause 329. Clause 330, like Section 294 of the CrPC, applies to the pre-trial stage of criminal proceedings, where parties have the opportunity to challenge the genuineness of documents relied upon by the opposing party, ensuring the documents are free from forgery or fabrication.

However, there is a difference of opinion among courts regarding whether expert reports, such as medical or post-mortem reports, can be admitted as evidence without the testimony of the experts who prepared them, in cases where the genuineness of such reports remains unchallenged.

XXVI. Police Custody vs. Judicial Custody

Clause 187 of the BNSS retains the established timelines of sixty or ninety days and the concept of default bail, as found in the CrPC. However, unlike Section 167 of the CrPC, Clause 187(2) additionally allows for detention in custody, whether police or judicial, for a total of fifteen days, which can be imposed at any time during the initial forty or sixty days of the respective sixty or ninety-day period. Consistent with the CrPC, Clause 187(2) grants any magistrate the authority to authorize detention, regardless of their jurisdiction to try the case. In contrast, Clause 187(3) requires a jurisdictional Magistrate. Furthermore, Clause 187(3) permits detention in custody to be authorized beyond the fifteen-day period, without the stipulation that it must be “otherwise than in police custody,” implying that police custody can also be used during this extended period. The legislation extends police/judicial custody from 15 to 90 days. This would put tremendous pressure and mental torture on the accused.

XXVII. Removal of References to Metropolitan Magistrates and Assistant Sessions Judge

All references to the posts and powers of Metropolitan Magistrates and Assistant Sessions Judges have been eliminated from the BNSS.

XXVIII. Clause 254

Clause 254 outlines the process for taking evidence in support of the prosecution. It mandates that on the specified date, the Judge must proceed to collect all evidence presented by the prosecution. Notably, this clause allows the recording of a witness’s testimony through audio-video electronic means under sub-Section (1). Sub-Section (2) of Clause 254 permits the deposition of evidence of any police officer or public servant through audio- video electronic means.

This restructured format should make the information more organized and accessible. If you have any specific changes or further details to add, please let me know.

XXIX. Clause 254 – Concerns and Open Court Requirement

While Clause 254 delineates the process for taking evidence in support of the prosecution, it introduces a provision that may raise concerns. Sub-Section

(1) of Clause 254 permits the recording of a witness’s testimony through audio-video electronic means. This allowance for remote testimony recording might give rise to issues related to transparency, fairness, and the fundamental principle of an “open court.” An open court system provides transparency and public scrutiny, allowing for a fair and impartial trial. Recording evidence through audio-video electronic means could potentially undermine this principle by limiting public access to the trial process and raising questions about the integrity of the proceedings. It’s essential to strike a balance between leveraging technology for efficiency and ensuring the preservation of fundamental legal principles, such as open court proceedings, to maintain public trust in the justice system.

DEREK O’BRIEN INTERVENTION- PARLIAMENTARY STANDING COMMITTEE ON HOME AFFAIRS

PART I

General statutes of criminal law are here for the ages. General statutes of criminal law will affect the lives of the poor. General statutes of criminal law have to be crafted with utmost care. No rushing through. Let every one of us on this committee commit ourselves to these.

When translated into english, the titles of these bills would be: the Indian Justice Code, 2023, the Indian Citizen’s Protection Code, 2023 and the Indian Evidence Bill, 2023. The three bills have since been referred to us on the Parliamentary Standing Committee.

If the new law is titled the Indian Citizen’s Protection Code, 2023, it will reflect the idea of a procedural shield for citizens against the State in the criminal process.

Negatives:

Authorises detention in police custody upto 90-day for offences punishable with death, life imprisonment and imprisonment for a term not less than 10 years.Also authorises police custody for upto 60 days for offences where imprisonment is less than the above mentioned offences. This dilutes the Right to life, health (physical and mental) and fair trial.
Enables trial in absentia if the judge finds the attendance of the accused in court not necessary “in the interests of justice” or if the accused “persistently” disturbs proceedings in court.

Where did this law come from?

The Ministry of Home Affairs in 2020, constituted a committee headed by Prof. Ranbir Singh, former Vice Chancellor of National Law University, Delhi to review the three codes of criminal law.

The committee was constituted of only men. Moreover, they were from similar social identity as well as professional background and experience.

There were no women, Dalits, religious minorities, adivasis, LGBTQ persons, or persons with disabilities on the Committee.

The committee has hardly any full time members unlike previous committees that had been assigned reforms of such magnitude.

1. METHODOLOGY

A. Contents from letter to Chairman of Home Affairs Committee:

I. First, considering the significance of these three Bills, it is imperative that multiple bipartisan discussions are held at length. It is my earnest request that members of this committee are not rushed and are given multiple opportunities to express themselves. Choice of domain experts, choice of witnesses from across disciplines and the methodology used must always take into consideration the “sense of the house”. In the spirit of federalism, it is imperative that the committee must also travel to multiple states to meet stakeholders. Sir, please create an atmosphere for scrutiny, debate and detailed discussion. This will embellish the quality of our output as a committee.

II. Second, the minutes of the meetings must be recorded with due diligence and provide a true reflection of the proceedings. Key points raised by members must reflect in the minutes. (Verbatim records are not a substitute for minutes.) For example, in the meeting that was held on 24 August 2023, Dayanidhi Maran (DMK) had submitted a letter stating objections on how the titles of the said bills are in Hindi. The submission of this letter making multiple points, the summary of its contents, and his intervention does not reflect all in the minutes of the meeting. Recording of such views is an integral part of the democratic process. Please ensure this is done for future meetings. III.Third, considering that the Special Session of the Parliament has been called from 18 September to 22 September 2023, the Members have made multiple commitments in their constituencies and other parts of their State including programs and meetings immediately (one week) after the session. This is a request to schedule the next committee meeting at least one week after the session concludes.

B. Who should the standing committee consult? What is the time frame?

Consultations to be done

1. Senior practitioners of criminal law who have domain knowledge accumulated over decades of litigation practice and expertise in thearea.

2. Bar Council of all states in India. (At least 23 state bar councils) (30 days)

3. The judges of the Supreme Court and high courts. (Supreme Court- Chief Justice and 33 other Judges appointed by the President of India. High Court- Working Strength of at least 785 judges across 25 high courts) (6 months)

4. The Bar Council of India Supreme Court Bar associations (At least 20 office bearers ) (20 days)

5. Members of parliament, legislative assemblies, and local councils play a role in passing laws. Their input can help ensure that proposed reforms align with legislative goals. (Lok Sabha – 539 members + Rajya Sabha- 238 members + State legislative assemblies) (6 months)

6. International Organisations: Collaboration with international bodies like the United Nations and regional human rights organisations can help align reforms with international standards and best practices. (100 days)

7. Media: Journalists and media organisations can play a role in raising public awareness about the need for criminal justice reform and can provide insights into public sentiment. (100 days)

8. Ethnic and Religious Leaders: Considering the diverse cultural and religious landscape of India, involving leaders from various communities can help ensure that reforms are sensitive to different perspectives. (50 days)

9. Experts on Juvenile Justice: Specialists in juvenile justice can provide insights into how reforms could better address the needs and rights of young offenders. (5 days)

10. Experts on Cybercrime and Technology: Given the rise of cybercrime, involving experts in technology and cyber law is crucial when considering reforms in this domain. (5 days)

11. Prison Officials and Reform Advocates: Individuals working within the prison system and advocates for prison reform can contribute perspectives on conditions, rehabilitation, and the treatment of inmates. (1319 prisons in the country and their officials) (4 months)

12. Inclusive Consultation from the general public including women, Dalits, religious minorities, adivasis, LGBTQ persons, or persons with disabilities etc. (1 month)

13. Governors, chief ministers of states, lieutenant governors and administrators of Union territories. (60-70 officials approx.) (1 month)

14. Legal Scholars and academic institutes (5 days)

15. Law Enforcement Agencies: Representatives from police departments can offer insights into issues related to investigation, evidence collection, and law enforcement procedures. (10 days)

16. Human Rights Organizations: NGOs and advocacy groups focused on human rights can provide critical perspectives on how proposed reforms might impact human rights, due process, and individual freedoms. (5 days)

A total of 1.5 years

C. Domain Experts who must be invited as witnesses

I. U.U.Lalit

He was designated Senior Advocate at the Supreme Court in April 2004. He aided the Court as an amicus curiae in many important matters pertaining to forests, vehicular pollution and pollution of the Yamuna river. In 2011, he was appointed as the Special Public Prosecutor in the 2G Spectrum scam case. He also served as the 49th Chief Justice of India.

II. Madan Lokur

He was appointed as Additional Solicitor General of India in 1998. Functioned as Chief Justice of Gauhati High Court from 2010 to 2011, and Chief Justice of High Court of Andhra Pradesh from 2011 to 2012. Has vast experience in Civil, Criminal, Constitutional, Revenue and Service laws.

III. Fali Nariman

Fali Sam Nariman is an Indian jurist. He is a senior advocate to the Supreme Court of India since 1971 and was the President of the Bar Association of India from 1991 to 2010.

IV. Menaka Guruswamy Sr Adv:

Menaka Guruswamy is a senior advocate at the Supreme Court of India. She is known for having played a significant role in many landmark cases before the Supreme Court, including the Section 377 case, the bureaucratic reforms case, the Agustawestland bribery case, the Salwa Judum case, and the Right to Education case.

V. Mr Sidharth Luthra, Sr Adv:

Senior Advocate at the Supreme Court. He was appointed the Additional Solicitor General of the Supreme Court from 2012-2014, during which he represented Union and State Governments in matters such as fundamental rights, environment laws, electoral reform, criminal law, juvenile rights, education and policy issues. Mr Luthra also appeared as the Special Public Prosecutor for the State of NCT of Delhi in the Nirbhaya gang-rape case.

VI. Mr Hariharan, Sr. Adv.

Hariharan N enrolled at the Delhi Bar in 1987 and over the last 34 years, has cemented a presence on the Criminal side of legal practice. For contributions to the practice and development of Criminal Law, he was designated as a Senior Advocate by the Delhi High Court in 2013.

VII. Ms Rebecca John, Sr. Adv.

Rebecca Mammen John has been practising exclusively on the criminal side in the Supreme Court of India, High Court of Delhi and in the Trial Courts of Delhi for more than three decades. She has conducted a wide range of criminal trials and argued appeals dealing with offences under the Indian Penal Code, Unlawful Activities (Prevention) Act, Prevention of Corruption Act and other special statutes.Sriram Panchu

VIII. Sylendra Babu

IX. Amit Desai

X. Rajeev Dhavan

XI. Siddharth Dave

XII. Adit Pujari

XIII. Aditya Sondhi

XIV. Vrinda Grover

XV. Professor Faizan Mustafa

II. INPUT NOTE – REFORMING CRIMINAL LAW: Menaka Guruswamy

You might ask why? Because when you have been detained, being questioned and are surrounded by police officers – it’s the Code of Criminal Procedure that protects you, limits your detention period in police custody, enables you to access a lawyer, who in turn can push for bail and even ask for quashing of the FIR or Chargesheet against you. Therefore, I particularly like that

Welcome reforms:

There’s plenty of welcome reform to our existing criminal procedure. Some of it draws on the technological innovations that have made it into our everyday life. For instance, the entire life of a new case, commencing from the FIR (first information report) leading to a case diary on its way to a chargesheet and culminating in a judgment is now to be maintained online – via digitized recordkeeping. This will make immensely safer the record of the case proceedings and enable quicker access when necessary. Significantly, when our homes are searched and seizure affected on items found, then such proceedings must be accompanied by mandatory video recording. This is a hugely important reform since this is protection against planting of evidence and can be used by the defense to contest alleged seizures.

The Protection Code also provides for the registration of a ‘Zero FIR’. This kind of FIR is registered when a police station receives a complaint regarding an alleged offence committed in the jurisdiction of another police station. Here, the original police station registers the FIR and then transfers it to the relevant police station for further investigation.

The Protection Code now makes it mandatory for a forensic expert to visit the crime scene and collect forensic evidence for information relating to an offence that is punishable by imprisonment for at least seven years. Continuing pandemic-era change, the Protection Code allows trials, inquiries and proceedings including examination and recording of evidence to be conducted by an electronic or online mode. This makes it infinitely more convenient for accused and witnesses to participate in and complete these requirements of the processes of a trial.

Another welcome reform pertains to the grant of sanction to prosecute a public servant. The Protection Code now provides that the decision to grant or reject sanction to prosecute a public servant must be reached by the government within 120 days of receiving the request. If the government fails to do so, sanction shall be deemed to be accorded. Additionally, no sanction shall be required in cases involving public servants when accused of sexual offences or trafficking of human beings. More reform comes in the form of a provision that mandates that no person can be arrested without prior permission of an officer of the minimum rank of a Deputy Superintendent of Police for offences punishable with less than three years imprisonment if the accused is above the age of sixty years.

Areas of concern

The most dangerous part of the Protection Code is that it permits the magistrate to authorize detention in police custody for a period beyond the current 15-day limit, extending up to ninety days. Such detention extending to ninety days is for offences punishable with death, life imprisonment and imprisonment for a term of not less than ten years. The Protection Code enables detention in police custody beyond the current 15-day mandate and up to sixty days for ‘any other offence’ (with imprisonment terms less than the ninety-day detention offences). This is a constitutionally burdensome provision that will impinge on the rights of an accused. Spending ninety days with the police having unimpeded access to an accused is debilitating from the point of view of rights to life, health (including mental well-being) and fair trial. At present for any period beyond the 15-day limit for police custody means that the judge can have the accused detained in judicial custody or order other custodial arrangements.

While there are many reforms that should be welcomed in the Protection Code, 2023- all of that will be rendered meaningless if an accused can be detained to long periods of time in police custody – three months of uninterrupted police custody will render any accused extremely vulnerable to coercion and intimidation. This move must be thought afresh, and members of the parliamentary committee must ask themselves – what if that accused was me?

III. UNDOING CRIMINAL LAW: MAKING HARSH SPECIAL STATUTES THE NORM: Menaka Guruswamy

One of the general patterns in contemporary India’s criminal law is that offences that are particularly difficult to regulate and especially elaborate in their organisation internally while having a large-scale impact on society are addressed by ‘special statutes’. These special statutes while being harsh in punishment are rigorous in the procedural safeguards they offer the accused. The emphasis being that there are checks and balances present in the quest of

the state to prosecute and the efforts of the accused to defend herself. Any detraction from the procedural protections that general criminal law offers, will have checks in place in these special statutes. This general pattern has been deviated from with the introduction on 11.8.2023 of three bills in the Lok Sabha by the Central Government. These bills are intended to dramatically change criminal law.

The BNS, 2023 to replace the Indian Penal Code, 1860, the BNSS, 2023 to replace the Code of Criminal Procedure, 1973 and the Bharatiya Sakshya Bill, 2023 to replace the Indian Evidence Act, 1872 have been tabled in the lower house of parliament.

This law reform effort by the State is at odds with established legislative practice of having separate and distinct harsh ‘special statutes’ with procedural checks and balances. This current effort shows that special laws are being absorbed into general criminal law – without any of the necessary procedural safeguards. This will make it impossible for the accused to defend herself and will bring within the criminal process many innocent people, for whom the process will be punishment and for which very few convictions will be returned. This is a particularly worrying effort – for the purpose of criminal law is not to persecute, but to prosecute ably while affording the accused a fair chance to prove their innocence.

Let me give you one example. Special legislation includes statutes like the Prevention of Money Laundering Act, 2002 (PMLA) and the Maharashtra Control of Organised Crime Act, 1999 (MCOCA, models of which are applicable in other states). Both statutes are illustrations of special legislation intended to combat alleged offences that are elaborate in how they are planned and fulfilled. While the punishments are harsh, both attempt to have some balance in the form of the procedural safeguards they offer. PMLA law has many deficiencies.

Now let’s come to ‘organised crime’. Provisions that have been introduced into general criminal law statute like the BNS, 2023. . At present, organized crime is principally dealt by the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), which is applicable in both Maharashtra and the National Capital Territory of Delhi. Other states have their own versions of MCOCA. However, the BNS brings it into general criminal law by having provisions that define and punish organized crime within this statute.

The BNS brings organized crime within Chapter VI of the Code that pertains to ‘offences affecting the human body.’ In the Indian Penal Code, 1860, the equivalent chapter that pertains to ‘offences against the body’ included classic criminal offences like murder and culpable homicide not amounting to murder. Within this classical framework is introduced the rather elaborate offence of ‘organised crime syndicates.’ Per the BNS, an organized crime syndicate means ‘a criminal organization or group of three or more persons, who acting singly or collectively in concert, as a syndicate, gang, mafia or crime ring indulging in commission of one or more serious offences or are involved in gang criminality, racketeering and syndicated organized crime’.

BNS provides that a definition of ‘organized crime’ as being ‘any continuing unlawful activity including kidnapping, robbery, land grabbing, contract killing, economic offences, drug or human trafficking, weapons or prostitution either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, corruption or related activities or other unlawful means to obtain direct or indirect material benefit including a financial benefit shall constitute organized crime’.

Also included within this fold are economic offences which includes criminal breach of trust, forgery, counterfeiting of currency and valuable securities, financial scams, running Ponzi schemes, mass marketing fraud or multi-level

marketing schemes with a view to defraud people at large for obtaining the monetary benefits or large-scale organized betting, any forms, offences of money laundering and hawala transactions.

It’s like the drafters thought of all the possible offences that can exist when three or more accused are involved and stuffed them into one unwieldy definition and pasted them into the bill. It is vague, poorly worded, and unwieldy. Everything that definitions should not be. While the punishment is stringent – for anyone ‘who conspires or organizes the commission of an organized crime’ shall be punishable with imprisonment for a minimum of five years to life in prison. There are no safeguards that criminal law affords, at present.

MCOCA has procedural safeguards that prevent abuse of such a ‘special law with stringent and deterrent provisions’ as per its statement of objects. For instance, Section 23 presently provides that no information about the commission of an offence of organized crime shall be recorded by a police officer without the prior approval of an officer below the rank of Assistant Commissioner of Police (ACP). Further, no investigation shall be carried out by a police officer below the rank of ACP. No ‘Special Court’ shall take cognizance of any offence under this Act without the sanction of a police officer of the rank of ACP and above.

MCOCA also has ‘Special Courts’ that are staffed by judges specially appointed by Government with the concurrence of the Chief Justice of the Delhi High Court. Such a judge should have had experience as an Assistant Sessions or Sessions court judge previously. Importantly, authorization for interception of wire, electronic or oral communication shall be allowed only after an officer not below the rank of Deputy Commissioner of Police, who is supervising the investigation of organised crime, submits an application to the Competent Authority. A Review committee consisting of the Principal

Secretary of Delhi, Law Secretary and Home Secretary shall review orders of the Competent Authority.

In essence, MCOCA an example of a special statute intended to combat an elaborate offence (organized crime), balances the stringency of not only the punishment it mandates, but also the invasion of privacy by wire taps to further enhance the investigation along with procedural safeguards. Great care has been taken by the legislature in the constitution of ‘special courts’, and the qualifications in terms of prior experience of the judges who will hear such cases. All of this is absent in the reforms that are proposed. What is being weakened are principals of criminal law – and it is the general public that will suffer by way of lack of procedural protections and absence of checks and balances. The right of fair trial and rule of law are also the casualties in the process.

DEREK O’BRIEN INTERVENTION- PARLIAMENTARY STANDING COMMITTEE ON HOME AFFAIRS

PART-II

SOME OTHER ISSUES WITH THESE BILLS

I. No reasoning as to the requirement of a new legislation. The old act could easily have been amended to include these changes.

II. Name of these Bills is in Hindi

This name being in Hindi is not suitable for the whole of the country.
Firstly, it is unconstitutional. Article 348 of the Constitution mandates that English language be used in Acts and Bills.

“348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc

(1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides

(a) all proceedings in the Supreme Court and in every High Court,

(b) the authoritative texts

(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,

(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and

(iii) of all orders, rules, regulations and bye laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.

This constitutes as Hindi imposition.
NAMES IN ENGLISH AS WELL AS HINDI. When translated into English, the titles of these bills would be: the Indian Justice Code, 2023, the Indian Citizen’s Protection Code, 2023 and the Indian Evidence Bill, 2023.
If the new law is titled the Indian Citizen’s Protection Code, 2023. It will reflect the idea of a procedural shield for citizens against the State in the criminal process.

SPECIFIC INPUTS ON BNS 2023 (Penal Code)

III. Sedition law

In the new Bill, sedition has NOT been removed, it has been altered.

Section 124A (The old sedition law) is part of the IPC. Its use had been kept in abeyance following a Supreme Court order in May 2022. The court had given the government time to re-look the sedition law. This was in lieu of several advocates urging the apex court to strike down sedition as an offence in any form.

*** claimed that sedition has been removed from the list of offences. What happened in fact was its reintroduction in a more draconian manner which can even encroach on the right to protest.

Though the Bharatiya Nyaya Sanhita Bill does not explicitly have a Section 124A in it, it has Section 150. This proposed provision in the new Bill avoids using the term ‘sedition’, but describes the offence as “endangering sovereignty, unity and integrity of India”.

The 22nd Law Commission suggested that sedition should be well defined. The Union government decided to do the opposite of that. The provision in the new bill gives it a very broad definition. The Bharatiya Nyaya Sanhita, 2023 Section 150 talks about Acts endangering sovereignty, unity and integrity of India. It reads-

“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”

This makes it so broad that it can encompass any act in the name of endangering the unity and integrity of India. It leaves a lot of room for discretion which is the opposite of what was advised by the law commission.

IV. Definition of Terrorist

Section 111 (6) (a) of the BNS says that a “terrorist” refers to any person who “develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives, or releases nuclear, radiological or other dangerous substance, or cause fire, floods or explosions.” – The addition of ‘floods’ is ambiguous and bizarre. Moreover these definitions continue to be so vague that it ends up giving the police unreasonably wide powers of arrest.

V. Section 69 – Promise to Marry-

Subjectivity and Intent: Determining whether a promise to marry has been made can be subjective and challenging to prove. Intentions can change over

time, and proving that a promise was genuinely made with the intention to marry can be difficult.

Privacy and Autonomy: Critics argue that relationships and decisions about marriage are deeply personal matters that should be left to the individuals involved. Criminalising a promise to marry can be seen as an undue intrusion into individuals’ private lives and autonomy.

Lack of Clear Parameters: Defining what constitutes a legally binding promise to marry can be vague and open to interpretation. This lack of clarity can lead to inconsistencies in enforcement and judgments.

Cultural and Social Dynamics: In many cultures, pre-marital relationships and commitments are complex and can involve various factors beyond just legal obligations. Criminalising such promises might not take into account cultural or social norms.

Enforcement Challenges: Proving the existence of a promise to marry, especially if it was made verbally and without any evidence, can present significant challenges in terms of evidence collection and enforcement.

Gender Dynamics: Depending on how the law is applied, there is a risk that such laws could disproportionately affect certain genders or reinforce harmful gender stereotypes.

SPECIFIC INPUTS ON BNSS 2023 (CRIMINAL PROCEDURE)

The recently introduced Procedure Bill allows the possibility of requesting a 90-day police custody period for crimes that carry a sentence of ten years or more. This situation could potentially lead to significant infringements on human rights, particularly if these cases result in a not-guilty verdict.

The Bill permits the magistrate to authorise detention in police custody for a period beyond the current 15-day limit, extending up to 90 days.

90-day police custody – for crimes that carry a sentence of ten years or more

60-day police custody – for “any other offence” with imprisonment terms

less than the 90-day detention offences This could lead to:

Violation of Human Rights: Increasing the period of police custody without proper safeguards could lead to human rights violations, including the risk of torture, coerced confessions, and abuse of detainees. This is particularly concerning given the history of custodial violence and abuse in India.

Denial of Legal Rights: Extending police custody could potentially lead to a denial of basic legal rights, such as the right to a speedy trial and the right to consult with legal counsel. Prolonged detention without proper oversight can undermine due process.

Overburdened Judicial System: According to the Prison Statistics India 2020 report, three in four prisoners in our country’s jails are under trial. This is the highest share of undertrial detainees in prison since 1995. Of these, 49% of the prisoners are between 18 and 30 years of age. Considering that a staggering percentage of such prisoners have spent over a year in prison awaiting trial, these inmates suffer due to our overwhelmingly slow legal process. The very judicial system that is intended to redress and deliver justice pushes them toward greater injustice since courts might face challenges in timely adjudicating cases, leading to potential delays in the delivery of justice.

Risk of False Confessions: Prolonged custody can increase the risk of suspects giving false confessions due to pressure, intimidation, or exhaustion. This can lead to wrongful convictions and miscarriages of justice.

Impact on Marginalised Communities: Lengthening the period of police custody might disproportionately affect marginalised communities and individuals who may not have access to legal representation or resources to challenge their detention.

Data also shows that two in three prisoners under trial belong to the SC, ST and OBC communities. Two in five of inmates from this category were educated below grade X and more than a quarter were illiterate.

Erosion of Trust in Law Enforcement: Instances of abuse, torture, or mishandling of suspects during extended custody periods could further erode public trust in law enforcement agencies.

II. Clause 356 of the BNSS enables trial in absentia if the judge is satisfied that “personal attendance of the accused before the Court is not necessary in the interests of justice” or if the accused “persistently disturbs the proceedings in Court.” This gives the Judge wide discretionary powers to abuse this provision and not give the accused a fair hearing.

III. Addition of provisions that are demeaning and against human dignity-

The CrPC has no provision of handcuffs. In D.K. Basu versus State of West Bengal (1996), the Supreme Court set guidelines on rights of accused while being arrested or in custody. As per the guidelines, handcuffing violates all standards of decency. Handcuffing is the last resort and should not be followed as a custom.

The BNSS, in Section 43(3), explicitly states that: “The police officer may, keeping in view the nature and gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat offender who escaped from custody, who has committed offence of organised crime, offence of terrorist act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack, counterfeiting of coins

and currency notes, human trafficking, sexual offences against children, offences against the State, including acts endangering sovereignty, unity and integrity of India or economic offences.”

IV. Expansion of powers granted to the Police-

Section 172 of the BNSS seeks to expand the powers of the police while taking preventive action. The police officer “may detain or remove any person resisting, refusing, ignoring or disregarding to conform to any direction” under Chapter XII. The Indian Criminal Justice System is based on a due-process model, but giving the Police such wide and discretionary powers during preventive action is essentially pushing us towards a crime- control model.

SPECIFIC INPUTS ON BSB 2023 (EVIDENCE ACT)

I. Section 19:

The provision in Indian Evidence Act 1872 which was similar to Section 19 of Bharatiya Sakshya Bill was Section 21. Section 21(1) referred to Section 32 of Indian Evidence Act 1872 (Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant). However, Section 19(1) of Bharatiya Sakshya Bill 2023 instead of referring Section 26, which is replication of Section 32 of Indian Evidence Act 1872, makes a reference to sub-Section (2) of Section 23 of Bharatiya Sakshya Bill, which deals with confession to a police officer. It has no relevance in this Section. Instead, reference should have been made to Section 26 itself (just like Section 32 of Indian Evidence Act) or maybe Section 26(2) of Bharatiya Sakshya Bill.

The same discrepancy can be found in the illustrations (b) and (c) of this Section. Instead of referring to Section 23(2), it should have made a reference to Section 26(2) of Bharatiya Sakshya Bill.

II. Section 36:

There is an error in this Section. This Section was Section 42 in the Indian Evidence Act 1872, and the words used in Section 42 were “other than those mentioned in Section 41”. Section 41 of Indian Evidence Act 1872 was dealing with “Relevancy of certain judgements in probate, etc, jurisdiction.” However, Section 36 of Bharatiya Sakshya bill states “other than those mentioned in Section 31.” Section 31 has no relevance here as it talks about “Relevancy of statement as to fact of public nature contained in certain Acts or notifications” while Section 35 of Bharatiya Sakshya Bill discusses “Relevancy of certain judgements in probate, etc., jurisdiction” and is similar to the Section 41 of Indian Evidence Act 1872.

III. Section 50 of BSB:

This Section was Section 55 in the Indian Evidence Act 1872, and the words used in explanation of Section 55 were “except as provided in Section 54”. Section 54 of Indian Evidence Act 1872 was “Previous bad character not relevant, except in reply”. However, Section 59 of Bharatiya Sakshya Bill is “Proof of documents by Primary evidence” and Section 49 of Bharatiya Sakshya Bill is about “Previous bad character not relevant, except in reply” and it is Section 49 which is similar to Section 54 of the Indian Evidence Act 1872. Use of words “Section 59” here seems erroneous, and it has no relevance in Section 50 of Bharatiya Sakshya Bill.

IV. Section 62 of BSB:

As per it, the manner of proving electronic evidence is mentioned in Section 65B and Section 65B discusses the admissibility of electronic records. In other words, how an electronic record can be made admissible before the court of law is mentioned in Section 65B. It mentions certain requirements which must be fulfilled and then only electronic evidence can be made admissible.

It is Section 63 (Admissibility of electronic records) of Bhartiya Sakshya Bill which replaces Section 65B (Admissibility of electronic records) of Indian Evidence Act 1872 and not Section 59 (Proof of documents by primary evidence.) Mentioning Section 59 in Section 62 appears to be a discrepancy because now the definition of document as per Section of Bhartiya Sakshya Bill 2023 includes “electronic and digital records.” Hence, they can be admitted as primary evidence under Section 59. But Section 62 of Bhartiya Sakshya Bill 2023 is a special provision for the succeeding Section 63, which talks about the manner which is to be followed (“may be proved in accordance with”) for proving electronic evidence. It is Section 63 of Bhartiya Sakshya Bill 2023 which has provisions discussing in detail the manner for proving electronic evidence and not Section 59.

If Section 62 is to be considered correct, then there is no point of having Section 63 because if all electronic records may be proved in accordance with the provisions of Section 59, then what is the purpose of having Section 63 altogether? Hence, this seems to be a discrepancy which may be rectified by replacing Section 59 with Section 63 in Section 62 of the Bhartiya Sakshya Bill 2023.

V. Section 81 of BSB:

This provision was Section 81A in the Indian Evidence Act 1872, and there was no explanation in this Section. However, Section 90A (Presumption as to electronic records five year old) of Indian Evidence Act 1872 (which is now Section 93 of Bharatiya Sakshya Bill) had an explanation which was made applicable to Section 81A. The same explanation has now been removed from Section 93 of Bharatiya Sakshya Bill and now added in Section 81 and it has been made applicable to Section 93 of Bharatiya Sakshya Bill. Some words in the explanation have been changed from “and under the care of the person with whom, they naturally be;” to “and looked after by the person with whom such document is required to be kept;”.

The explanation in Section 81 has incorrectly been made applicable to Section 96 (Exclusion of evidence to explain or amend ambiguous document). It has no application there as there is no reference to any electronic record or custody of documents.

VI. Section 93 BSB

It has been mentioned in this Section that “Explanation to Section 84 shall also apply to this Section.” Section 84, however, has no explanation.

Section 93 of Bharatiya Sakshya Bill was Section 90A of Indian Evidence Act, 1872. Section 90A of Indian Evidence Act, 1872 is reproduced.

VII. Section 81 BSB

Now, Section 81A of Indian Evidence Act, 1872 had no explanation but Section 81 of Bharatiya Sakshya Bill has an explanation, which is being made applicable to Section 96 (Exclusion of evidence to explain or amend ambiguous document) of Bharatiya Sakshya Bill. This seems to be erroneous on two counts, firstly, explanation of Section 81 of Bharatiya Sakshya Bill is specifically stating that its explanation is applicable to Section 96, whereas

Section 96 has no relevance here. Section 81 needs to be rectified by replacing the word Section 96 with “Section 93.” Secondly, it is the explanation of Section 81 of Bharatiya Sakshya Bill which needs to be made applicable here and not that of Section 84, which has no explanation at all.

VIII. Section 108 BSB

There is an error in illustration (c) of Section 108. Bharatiya Nyaya Sanhita, 2023 has replaced Section 325 with Section 115 and Section 335 with Section 120. These changes should be made in the first part of illustration (c).

SOME OTHER ISSUES WORTH CONSIDERING?

I. The provision legalising marital rape has been retained.

The colonial laws did not recognise men and women as equals and merged the identity of women with their husbands. Under Section 375 of the Indian penal code deals with the offence of rape provides for an exception – ‘Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.’ The Report of the 42nd Report of the Law Commission (1971) suggested removal of this exception. The Bharatiya Sakshya Bill does not make any significant changes to the ‘colonial’ Indian Evidence Act, even though the Law Commission report of 2003 had suggested so many changes in the form of amendment and substitution of provisions.

II. Section 112 of Evidence Act speaks about ‘Birth during marriage conclusive proof of legitimacy except in certain cases’. It reads as follows: “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be

shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” One must notice that there was no DNA paternity test at the time when this legal presumption got introduced in 1872. Why is that this bill which is meant to decolonize the existing law, has made no changes to the provision, apart from simply renumbering it as Section 116?

The Law Commission report had recommended an amendment to this Section:

The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days, (i) after the marriage was declared nullity, the mother remaining unmarried, or

(ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless (a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or (b) it is conclusively established, by tests conducted at the expense of that man, namely, (i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or (ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or (iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child.

III. Absence of provision similar to Section 377 IPC in the Bharatiya Nyaya Sanhita- The Supreme Court in Navtej Singh Johar case had struck down Section 377 IPC but only to the extent it criminalizes consensual sex. However, Section 377 IPC can still be invoked when there is a non- consensual sex/rape of a man by another man. A woman can also initiate

proceedings against her husband for unnatural sex under Section 377 IPC. If, as per the Nyaya Sanhita, these acts are not offences, it means that the victims of sodomy, buggery etc. will have no remedy available under it. So if a man is ‘raped’ by another man, what is his remedy?

IV. Non-Inclusion of trans-women in definition of rape

V. Impact on the Digital Ecosystem- Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 which deals with powers to summon for evidence, explicitly includes summoning of “digital evidence,” and covers any electronic communication such as messages, call recordings, and emails, as well as electronic communication devices such as mobile phones, laptops, cameras, and any other electronic device that may be specified by the government through notification in the future. A court also has the right to order search and seizure of such evidence for various reasons, including if the person in possession of the evidence is not expected to produce the same.

A mobile device or a laptop contains a lot of information which might not be relevant to the case because electronic devices in today’s age contain all information pertinent to an individual’s general existence. So, there’s a question about the invasion of the right to privacy because of the scope of information that’s in these devices. And the second thing is that collection of such devices might also go against the right to protect yourself from self- incrimination. And now with it being codified in law, it just makes it easier for the law enforcement and for courts to justify whatever collection that they’re doing.

VI. Basic Drafting and Spelling Errors There is no Sec. 498A in BNS. But BNSS mentions it as so in the index. It should have been Section 84 instead. Explanation to Section 150 BNS ( which modifies S124A IPC ) does not make any sense. It is incomplete.

VII. Illogical provisions – As per Section 101 of the BNS, when a man commits murder, punishment is life imprisonment or death. No other option. But if a group of 5+ men acting in concert commits murder on grounds mentioned in this clause, there is an option to give a punishment of 7+ years imprisonment.

VIII. The provisions display an astounding ignorance of the law. For instance, as per S. 262. (1), the accused may prefer an application for discharge within a period of sixty days from the date of framing of charges.

IX. No congruence between the three bills. For instance, the definition of “Document” in the Sakshya Bill and under Nyaya Sanhita. Nyaya Sanhita doesn’t include electronic and digital records as Document while the amended Sakshya Bill does.

X. In Sessions Trial court can frame charge even when accused is present by electronic means u/s 251(2) BNSS but same has NOT been provided in Magistrate triable case u/s 263 BNSS.

INPUTS FROM DOMAIN EXPERTS

I. Siddharth Luthra- Summary on ‘It’s Still Colonial’

The existing Penal Code, which originated in 1860, is still in use in 34 countries.

It has seen only minor amendments in India previously, such as the inclusion of laws related to sedition, cruelty to women, dowry death, and some deletions over the years.

Bharatiya Nyaya Sanhita (BNS) – The New Penal Code:

Notable additions include the concept of community service, but it excludes the inclusion of open prisons.

New offences like fake news terrorism, organised crime, and corruption have been added.

However, it does not repeal the existing special laws that cover these offences.

Inconsistencies Between Codes

While terrorism, organised crime, and corruption are addressed in the new Penal Code, the corresponding amendments needed in the Bharatiya Sakshya Sanhita (Evidence Code) are lacking.

This omission creates inconsistencies and gaps in the legal framework.

Enhancement of Sentences:

The new Codes enhance sentences for acts of rashness and negligence leading to death.

This change has implications for medical professionals, potentially increasing their legal exposure.

Punishment for Mob Lynching

The new Codes introduce punishment for mob lynching as a distinct offense. However, the severity of punishment for mob lynching does not align with that for murder or intentional culpable homicide.

Reorganization and Reduction of Provisions

The new Codes reorganize provisions and reduce the number of Sections. This effort includes compiling definitions and updating illustrations while grouping similar provisions.

However, these changes do not fundamentally alter the core of the 1860 Penal Code.

Sedition Repealed and Reintroduced:

Sedition (Section 124A IPC) has been repealed but reintroduced as Section 150 in the new Bharatiya Nyaya Sanhita (BNS).

The new provision requires an intention similar to sedition, raising concerns about freedom of speech and possible misuse against dissent.

Questions arise about the necessity of retaining a relic from the era of monarchs in a democratic republic.

Right to Life and Liberty (Article 21):

Article 21, protecting the right to life and liberty, is crucial in safeguarding individuals against state action.
The 1973 Criminal Procedure Code (CPC) contains provisions related to arrest, the right to seek bail, and procedural safeguards, putting Article 21 into action.

The new law, Bharatiya Nagarik Suraksha Sanhita (BNSS), introduces reforms like video conference trials and e-filing of FIRs but falls short in providing adequate protection to detainees.

Plea Bargaining and Custody Period:

The plea bargaining chapter remains untouched in BNSS and is limited to sentence bargaining, missing an opportunity to allow pleading guilty to a lesser offence.

BNSS increases police options to seek custody (PC) for 40/60 days, which curtails the right to bail.

This contradicts the goal of breaking from the colonial past and hampers BNSS’s objective of improving forensic and scientific investigations for quicker and better-quality results.

The government should have considered reducing the 15-day PC period, as even colonial-era rules frowned upon it and discouraged obtaining confessions.

New Evidence Law (Bharatiya Sakshya Adhiniyam):

The new evidence law updates digital and electronic evidence provisions and incorporates principles developed by courts.

It Indianizes illustrations but doesn’t bring substantialchanges.

Disappointment with New Laws:

The introduction of three new laws was expected to bring significant improvements but reiterated existing colonial-era laws.

These new laws emphasise increased criminalization, harsher sentences, and expanded police powers, which don’t align with the nation’s constitutional objectives.

The Need for Comprehensive Legal Reform:

Instead of piecemeal changes, an actual break from the colonial past should involve compiling and rationalizing central laws into substantive codes for a more efficient criminal justice system.

This reform should consider rationalisation and decriminalisation, introducing new criminal laws where necessary, regulating arrest powers, implementing bail and sentencing guidelines, and ensuring alignment with fundamental rights and victims’ rights.

Presumption of Innocence and Fair Trial:

A break from the colonial legacy should strengthen the presumption of innocence and the right to a fair trial for the accused while protecting victims’ participatory rights.

Urgency for Deep Review

The hope lies with the Standing Committee responsible for reviewing these proposed legislations, recognising that criminal law significantly impacts everyone’s daily lives.

A thorough study is needed to ensure these laws align with the nation’s constitutional principles, especially the paramount right to life and liberty established in 1950.

II. Inputs from Justice Madan B Lokur: ‘Is this a Necessary Overhauling?’

Fails to address implementation concerns.
IPC: 150 years and is still in existence in some form or other in about 30 countries. Evidence Act is 140 years old, CrPC is 50 years old since its revision in 1973.
Proposed laws do not address the important issue of judicious implementation by police and prosecution. Eg: Broadening rather than curtailing of sedition laws has led to further misuse.
No redressal in case of errant officials where *** is unjustified.
In case of Zero FIR, issues with its implementation persist. Eg: The events recorded in the horrific video ***.
The legislation extends police/judicial custody from 15 to 90 days. This would put tremendous pressure and mental torture on the accused.
Purpose of the laws is to expedite justice delivery system. This cannot be done when appointments of judges to high courts and local courts take years.

9. WHY THE RUSH ON THIS REFORM? ELECTION 2024?

***

The law you are passing will stay for 100 years. Let each one of us rise above narrow partisan interests. Let us create laws to better the lives of our children and our childrens’ children.

We are all for reform. Who can be against reform. But in the name of reform let us not become more repressive than the colonisers.

While there is an undeniable need to reform colonial era criminal framework, the current criminal law bills are more draconian than the colonisers law-treating citizens worse than ‘native subjects’ of the Raj.

ANNEXURE – C

Consultations to he done

1. Senior practitioners of criminal law who have domain knowledge accumulated over decades of litigation practice and expertise in the area.

2. Bar Council of all states in India. (At least 23 state bar councils) (30 days)

3. The judges of the Supreme Court and High Courts. (Supreme Court- Chief Justice and 33 other Judges appointed by the President of lndia. High Court• Working Strength of at least 785 judges across 25 high courts) (6 months)

4. The Bar Council of India Supreme Court Bar associations (At least 20 office bearers) (20days)

5. Members of parliament, legislative assemblies, and local councils play a role in passing laws. Their input can help ensure that proposed reforms align with legislative goals. (Lok Sabha – 539 members + Rajya Sabha- 238 members + State legislative assemblies) (6 months)

6. International Organizations: Collaboration with international bodies like the United Nations and others can help align reforms with international standards and best practices. (100 days)

7. Media: Journalists and media organizations can play a role in raising public awareness about the need for criminal justice reform and can provide insights into public sentiment. (100 days)

8. Ethnic and Religious Leaders: Considering the diverse cultural and religious landscape of India, involving leaders from various communities can help ensure that reforms are sensitive to different perspectives. (50 days)

9. Experts on Juvenile Justice: Specialists in juvenile justice can provide insights into how reforms could better address the needs and rights of young offenders. (5 days)

10. Experts on Cybercrime and Technology: Given the rise of cybercrime, involving experts in technology and cyber law is crucial when considering reforms in this domain. (5 days)

11. Prison Officials and Reform Advocates: Individuals working within the prison system and advocates for prison reform can contribute perspectives on conditions, rehabilitation, and the treatment of inmates. (1319 prisons in the country and their officials) (4 months)

12. Inclusive Consultation from the general public including women, Dalits, religious minorities, adivasis, LGBTQ persons, or persons with disabilities etc. (1 month)

13. Governors, chief ministers of states, lieutenant governors and administrators of Union territories. (60-70 officials approx.) (1 month)

14. Legal Scholars and academic institutes (5 days)

15. Law Enforcement Agencies: Representatives from police departments can offer insights into issues related to investigation, evidence collection, and law enforcement procedures. (10 days)

16. Human Rights Organizations: NGOs and advocacy groups focused on human rights can provide critical perspectives on how proposed reforms might impact human rights, due process, and individual freedoms. (5 days)

A total of 1.5 years

Additional recommendations:

1. Former CJI U.U.Lalit

2. Justice Madan Lokur

He was appointed as Additional Solicitor General of India in 1998 . Functioned as Chief Justice of Gauhati High Court from 2010 to 2011, and Chief Justice of High Court of Andhra Pradesh from 2011 to 2012. Has vast experience in Civil, Criminal, Constitutional, Revenue and Service laws.

3. Fali Nariman

Fali Sam Nariman is an Indian jurist. He is a senior advocate to the Supreme Court of India since 1971 and was the President of the Bar Association of India from 1991 to 2010.

4. Adv. Menaka Guruswamy

5. Sr. Adv. Sidharth Luthra

Advocate Sidarth Luthra is a Senior Advocate at the Supreme Court. He was appointed the Additional Solicitor General of the Supreme from 2012-2014, during which he represented Union and State Governments in matters such as fundamental rights, environment laws, electoral reform, criminal law, juvenile rights, education and policy issues. Mr Luthra also appeared as the Special Public Prosecutor for the State ofNCT of Delhi in the Nirbhaya gang-rape case.

6. Sr. Adv. Hariharan

7. Sr. Adv. Rebecca John

Rebecca Mammen John has been practicing exclusively on the criminal side in the Supreme Court of India, High Court of Delhi and in the Trial Courts of Delhi for more than three decades. She has conducted a wide range of criminal trials and argued appeals dealing with offenses under the Indian Penal Code, Unlawful Activities (Prevention) Act, Prevention of Corruption Act and other special statutes.

8. Dr. Sylendra Babu

9. Sr. Adv. Amit Desai

10. Sr. Adv. Rajeev Dhavan

11. Sr. Adv. Siddharth Dave

12. Adit Pujari

13. Sr. Adv. Aditya Sondhi

14. N. Dinakar

15. Justice R.Balasubramaniam

16. Sr. Adv. Vrinda Grover

17. Sr. Adv. Meenakshi Arora

** *Expunged as per Rule 90(7) (i) of Rules of Procedure and Conduct of Business in Rajya Sabha

INDEX

I. NO NEED FOR NEW BILLS WHICH ARE 93% COPY PASTE LEGISLATION

II. *** COMMITTEE PROCEDURE AND AVOIDING QUALITY STAKEHOLDER CONSULTATION

III. NAMES OF THESE BILLS SHOULD BE IN ENGLISH AS WELL AS HINDI.

IV. LACK OF DISCUSSION AMONGST MEMBERS OF THE COMMITTEE AND LIMITING THE MEANINGFUL PARTICIPATION OF THE OPPOSITION.

V. *** TO ADOPT REPORT RIDICULES LEGISLATIVE SCRUTINY- ONLY A STUNT BEFORE ELECTION 2024.

VI. A RESULT OF RUSHING AND ***- NUMEROUS DRAFTING ERRORS

VII. ABSENCE OF PUBLIC ENGAGEMENT

B. DEMERITS OF THE DRAFT REPORT

I. Clause 5 Commutation of a sentence

II. Clause 11 Solitary Confinement

III. Clause 69 – Promise to Marry

IV. Kidnapping and begging-Clause 137

V. Sedition law- Clause 150

VI. The problem with not defining community service.

VII. Clarity in definition of life sentence

VIII. Offences Relating to Elections

IX. Clause 264 – Defamation

X. Clause 282- Conveying person by water for hire in unsafe or overloaded vessel

XI. Clause 277- Fouling water of public spring or reservoir.

XII. Clause 275- Sale of adulterated drugs.

XIII. Clause 275 and 276- Sale of adulterated drugs.

XIV. 104(1)- Death by negligence

XV. Clause 213- Refusing to sign statement

Criminal Procedure- BNSS

XVII. Non-Inclusion of trans-women in definition of rape- BNS

XVIII. Different punishments for murder depending on the number of people convicted.- BNS

XIX. Report suggests criminalizing adultery- BNS

XX. Expansion of powers granted to the Police- BNSS

XXI. Expansion of Police powers- BNSS

XXIII. Reconsideration of Death penalty

XXIV. Accused’s Right to File for Discharge

XXV. Pre-trial Incarceration

XXVI. Police Custody vs. Judicial Custody

XXVII. Removal of References to Metropolitan Magistrates and Assistant Sessions Judge

XXVIII. Clause 254

XXIX. Clause 254 – Concerns and Open Court Requirement

DEREK O’BRIEN INTERVENTION- PARLIAMENTARY STANDING COMMITTEE ON HOME AFFAIRS

Negatives:

1. METHODOLOGY

B. Who should the standing committee consult? What is the time frame?

II. INPUT NOTE – REFORMING CRIMINAL LAW: Menaka Guruswamy

Welcome reforms:

Areas of concern

III. UNDOING CRIMINAL LAW: MAKING HARSH SPECIAL STATUTES THE NORM: Menaka Guruswamy

DEREK O’BRIEN INTERVENTION- PARLIAMENTARY STANDING COMMITTEE ON HOME AFFAIRS

SOME OTHER ISSUES WITH THESE BILLS

II. Name of these Bills is in Hindi

III. Sedition law

IV. Definition of Terrorist

V. Section 69 – Promise to Marry-

III. Addition of provisions that are demeaning and against human dignity-

IV. Expansion of powers granted to the Police-

II. Section 36:

III. Section 50 of BSB:

IV. Section 62 of BSB:

V. Section 81 of BSB:

VI. Section 93 BSB

VII. Section 81 BSB

VIII. Section 108 BSB

IV. Non-Inclusion of trans-women in definition of rape

INPUTS FROM DOMAIN EXPERTS

Bharatiya Nyaya Sanhita (BNS) – The New Penal Code:

Inconsistencies Between Codes

Enhancement of Sentences:

Punishment for Mob Lynching

Reorganization and Reduction of Provisions

Sedition Repealed and Reintroduced:

Right to Life and Liberty (Article 21):

Plea Bargaining and Custody Period:

New Evidence Law (Bharatiya Sakshya Adhiniyam):

Disappointment with New Laws:

The Need for Comprehensive Legal Reform:

Presumption of Innocence and Fair Trial:

Urgency for Deep Review

II. Inputs from Justice Madan B Lokur: ‘Is this a Necessary Overhauling?’

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Published by Derek O'Brien