Primarily, there are two segments of law i.e., the substantive and procedural law. Substantive laws are further classified into two more parts i.e., civil substantive law and criminal substantive law. The civil substantive law defines the rights and responsibilities of individuals (Indian Contract Act,1872; Industrial Disputes Act, 1947). The criminal substantive laws, on the other hand provides offences and their punishments. (Indian Penal code)
Procedural laws are the laws that prescribes the procedure for enforcement of those rights and liabilities. These laws are also known as adjective law or remedial laws. Similar to substantive laws, these are again sub-classified into two types i.e., civil and criminal procedural laws. Civil procedural laws provides procedure for enforcing civil rights and fixing civil liabilities (Civil cases). Criminal procedural law prescribes procedure for fixing the penalties for criminal offences (Criminal cases).
This article deals with change in the principal uniform procedural criminal law in India i.e., Code of criminal procedure, 1973.
CODE OF CRIMINAL PROCEDURE, A GENERAL DESCRIPTION:
Criminal procedure code is the fundamental legislation in India that governs the procedure for enforcing the substantive penal law (IPC) in the country. This code is abbreviated as Crpc, 1973. It received the assent of president on 25 January 1973 and came in effect from 1 April 1974. At present this code contains total 484 sections divided into 37 chapters with 2 schedules.
It is the sole legislation in India that circumscribe in itself a machinery for three main agencies working towards achieving criminal justice. This code prescribes effective rules and mandatory guidelines to be followed by the investigating agencies. It also provides for the procedure or sequence for prosecution of offenders. It contains adequate provision for the judgment delivery by the judiciary. Other than these, it inculcates provision regarding disposal of properties, transfer of cases, bail concepts and many more. It is based on the most widely known natural law principles of fair and cheap trial to the accused keeping in view their rights.
THE REPEALING BILL, BNSS:
Union Home minister introduced Bharatiya Nagrik Suraksha Sanhita Bill,2023(BNSS Bill,2023) to replace the age old and principal criminal code i.e., Crpc,1973. The bill was presented to Lok Sabha on 11 August 2023 to reform the criminal justice system in India.
Objectives of the Bill:
The intention and aim of legislature behind introduction of BNSS can be best explained from the “Statement of objects and reasons” inserted in the Bill. Some of the main targets of the bill are hereby explained:
- Fast and efficient Justice system:
The government took in view long complex procedure followed by judiciary in day to day functioning. By virtue of this bill, it addresses the age old issues of large pendency of cases in the courts. Therefore to enact an efficient system government restored to the repealing bill.
- Speedy justice:
The government aspire to achieve the aim of speedy justice following the line of “sabka sath, sabka vikas, sabka vishwas, sabka prayas”. This action will review the criminal procedural framework to make speedy justice accesible to all.
- Digital procedure:
The new bill provides for digitalising the procedure by involving high use of technology. Online lodging of FIR’s ;service of summons through electronic communications are the high points of the bill.
- Involvement of forensic science:
Involvement of forensic science in the investigation of offences is the main highlight of the bill. It will make sure that the Justice delivery is fair and accurate.
- Initiative towards Citizen-centric approach:
Keeping in view the hurdles faced by the general public, there was a need of adopting citizen-centric approach in the procedures. Therefore, the bill incorporates many provision like supply of copy of first information report(FIR) to victim, Hearing opportunity before case withdrawal to achieve it.
While introducing the bill to the lower house, Union home minister said that this aims at “removing a mentality of servitude” from the old legislations. He invoked a message towards one of the five pledges which was mentioned by Prime Minister, Mr. Narendra Modi in his speech. He also said that the aim of the new laws will be justice rather than punishment. Further, he also mentioned “the aim to take the conviction rate to 90 percent”. He referred to the recent cases and spoke that the new provisions will ensure that the criminals do not escape law by political influence.
Need to replace:
One need to critically analyse a lot of facts before coming to the conclusion of whether this change was actually needed or not. some of those critical facts screaming change are mentioned here as follows:
- Alarming pendency: A shocking reality is that there are over 4.5 crore cases pending for adjudication in India. This means that if no new cases are filed, the supreme court need over 1.3 years time to clear up the pendency. This data becomes more dreadful when we talk about the subordinate court because 87.6 percent of these pending cases belongs in the lower court. Law Minister, Kiren Rijiju verified that the total pending cases in subordinate courts was pegged at over 4.32 crore. This is heading very fast towards the five crore mark. These pendency resulted in 3.3 lakh under-trial prisoners in Indian jails awaiting judgment. The situation gets worse for those 1,82,000 cases which are pending for over 30 years. The judiciary is under unimaginable burden of backlog of cases, said by Chief Justice N.V. Ramana. National Judicial Data Grid (NJDG) report conveys this horrific picture by accurate statistics.
Now that we are well aware about the breeding problem, we must also know the reason behind it. The substantive laws are never blamed for such delay in adjudication as it only explains the concepts. The procedural law on the other hand provide way to put those concept in practice. Therefore, if the finger is pointed to practice of adjudicating authority, the first question automatically rise against the procedural laws. These reports clearly established the urgent need of reforms in the procedural law of the country.
- Under- reported crimes: The crime rate in the country is critical for evaluating the criminal law policies in the nation. According to the reports published by Bureau of Justice Statistics (BJS), nearly 3.4 Million violent victimisation went unreported to the police. These figures turn black when we talk about sexual offences going unreported. Only 310 out of 1000 cases of sexual assault that means only 1 out of 3 cases are reported to the police.
There are many reasons behind why these crimes go unreported but the primary reason is believe among people that “reporting wont change anything”. Victims have a very strong view that the procedure does not worth the time and effort they had to invest. The criminal procedure of our country have became so torturous that victims chose to live with the crime.
- Expensive procedure: “Courts and police are for rich”, every poor person have this perception. The loopholes in the procedure makes it expensive for the poor sections of the society. The long procedure adds money to the pockets of police officers or the lawyers and still the justice does not get served to the oppressed.
In recent report, it is found that a litigant who appeals at least one higher court is most likely to spend over 10 Lakh rupees of Indian currency. This is the situation when he does not appeal to the supreme court. Provided that we are thinking on a positive side, unfortunately there is a negative side too.
- Judicial corruption: Under Centralised Public Grievance Redress and monitoring system (CPGRAMS), more than 1600 complaints against judiciary were received. These complaints have been forwarded to the Chief justice of India. Out of these, many of the complaints are based upon the ground of judicial corruption.
The corruption among those who are duty bound to administer the procedure fairly had left the procedural laws powerless. Even in the best case scenario, the procedural laws cannot prove themselves to be efficient till the time presence of corruption is intact in the legal system of the country.
- Twisted Execution: The law is some what else and what is actually getting applied is something else. The bookish and practical fields have night and day difference among them. Even after completing the legal studies, students have to learn the local customs of the court to understand court’s proceeding. This happens because the lower courts have created a self-made customised procedure for itself.
Can you think a way to reform something that is not in existence in the reports? you can’t. These hidden practices of courts are prevalent in many areas and often end up hampering administration of criminal justice.
- Lack of knowledge: Even the lawyers are not well- equipped with the criminal procedure, the laymen unawareness is to the extreme. Though there is presence of many schemes formulated for the providing free legal aid to the victim, but if the aggrieved does not even have the basic knowledge about them how can they avail the benefit of it.
There is a need to attract everyone’s attention toward this to bring effective reformation in the criminal justice.
Features of BNSS Bill:
The law framers have kept many provisions in the bill similar to the code of criminal procedure, however there is modification in some processes. Some totally new provisions are also added in the bill. Here is a detailed information about the main characteristics of the bill:
- Natural Changes:
Lets tackle the natural changes first. These are:
- Replacing the word “code” with the word “Sanhita”.
- Replacing the words “barrister, pleader, attroney or vakil” with the word ” advocate”.
- Replacing the word “Asylum” with”Public Mental Health Establishment”
- Inserting the phrase “person with Mental Illness”.
- Removal of references to the IPC or IEA, rather it now means the provision of corresponding bills (BNS and BSB)
- Addition to definitions:
The bill contains some definitions which are not present in the code of criminal procedure. some of these are: “audio-video electronic means”, “electronic communication”. There are some other minutest differences in the old definitions from the Crpc as well.
- Technological provisions:
Unlike the crpc, new bill to criminal justice proposed inclusion of technology in the court proceeding. It opened the doors for the trials, appeals, recording of depositions of public servant and police officer via electronic mode. Also now, the statement of the accused can be recorded through video-conferencing. Not only the judicial proceeding but the investigating agency is also digitalised by involving the procedure of online FIR and uploading of police reports on online portal.
- Trial in Absentia:
Code of criminal procedure does not permit trial in absentia. Trial in Absentia ,means a trial where the accused willfully surrenders his right of presence inside the court. Criminal procedure code runs on the principle that it is the right of the accused to fully participate in the proceeding. It implies that all the evidence against the accused must be given in his presence. In certain exceptional cases however, this rule is excused. In the new bill, the courts are permitted to try the accused 90 days after charge framing even if the accused is not present.
- Electronic communication:
the bill proposes to add “Communication devices” to the process of the court. It means that the summons could now be served by any written, verbal, pictorial or video content transmitted through a mobile phone or a computer or any other wireless communication device. Other than this, it also provides for Digital evidences contained in communication devices. This digital evidence will be producible in all stages of the trial.
- Handcuff usage:
In cases of Repeat offenders, habitual offenders, organised criminals, terrorists, person who committed drug related crimes, rape, acid attack, human trafficking, offences affecting sovereignty, unity and integrity of the country, there is a special provision for the use of handcuffs. The police officer can make use of handcuffs while arresting the above categorised persons.
- Mercy Petition:
The new bill contains an express provision allowing a convict to file mercy petitions in case of death sentence. It also mentions the time limit within which this right should be exercised, i.e., 30 days after the superintendent of the prison informs accused about the confirmation of his death sentence. Earlier, this provision was only contained in the pardoning power of the president under Indian Constitution.
- Detention by Police:
Crpc, 1973 only provides the preventive action of the police as a duty of police officer and does not gave any power to them in the enforcement of those duties. The new provision aims at maintaining law and order in the country. It gives the police officer power to detain the persons who disobeyed the direction given by police officer as preventive measure.
- Forensic expert:
There is provisions for active involvement of the forensic department in the investigation of offences. this will in turn help in preserving and discovering the material evidence of commission of the crimes. Criminals will meet their punishments with accurate reasoning. Not only this, it will push the forensics as a profession in the country.
- Distribution of business by session judge:
Crpc provides that the session judge can distribute the business from time to time between Additional and Assistant Session judges. New bill have omitted the words “assistant session judges” from this sphere of distribution.
- Public prosecutor for National Capital Territory of Delhi:
The new bill to criminal justice empowers the central Government to appoint public prosecutors or Additional public prosecutor for High court. this power can be exercised only after consultation with the high court of Delhi.
- District Directorate:
The new bill paves a way towards the establishment of district directorate of prosecution. It will consist of deputy directors and assistant deputy directors. Also, there is a detailed mention about the powers and functions of directorate, their directors, deputy and assistant directors.
- Arrest reformed:
Other than Handcuffs as discussed above, the new bill makes it mandatory on police officers to take the prior permission of DSP in case offence is punishable with punishment of less than 3 years and the accused is either an infirm or a person above 60 years of age.
- Proclaimed offender:
The courts on written request of the police officer can also initiate the process of identifying and attaching the property of proclaimed offenders.
A New Out-look:
A renowned person had once said that:
‘‘Justice will depend on the Particular State or condition in which person finds themselves”.
You also must have heard many persons quoting that: “Destination matters, but not more than the Journey”. Procedural law are that journey for the aggrieved and therefore it matters more than the judgement. The effort of making that journey easy, cheap, speedy, a little less hectic will surely a start to reform the criminal justice system.
In conclusion, the words of Gloria Steinem,
“Law and justice are not always the same, When they are not, destroying the law maybe the first step towards changing it”.