Codification of Criminal Law (Part 3): The Evidence Act and BSA

The third and final instalment of this series continues the discussion on India's criminal codes and turns our attention to the Indian Evidence Act 1872 [IEA], replaced in 2023 by the Bharatiya Sakshya Adhiniyam [BSA]. The IEA (and BSA) is not strictly a 'criminal' code, though, as the rules of evidence it lays down apply to civil trials too. That does not affect the points made in this post, I think.

Same pattern. Four themes, on aspects go beyond the substantive content — is the definition of hearsay good or not, etc. — but touch upon the impact the code has on the legal system.

Theme 1 — Evidence, for what kind of Trial? 

At the time when the IEA was passed for British India, the legal system was a peculiar creature. Different defendants would be entitled to different trials, on the basis of race, and the trials themselves were a mix of jury trials and bench trials. Why does that matter? A law on the subject of evidence is, obviously and undeniably, linked to how that legal system is processing cases. A set of rules governing reception of evidence in jury trials is not ideally suited to a trial conducted by a judge alone. In the former a jury decides questions of fact, requiring some care to ensure a jury is not influenced by bad quality evidence. In the latter, considering it is a judge helming the case, this is not seen to be a problem.

Part of the genius behind the IEA was that it successfully presented a system of evidence which did not trouble courts regardless of the trial — and also, civil trials. But as India has abandoned jury trials outright, there is no need to continue with a system designed to set out a kind of lowest common denominator for our courts. This point is developed more thoroughly in the next two, interlinked themes.

Added here is the problem of staggered trials. The trial envisioned by the IEA (and now BSA) is one continuing over day-to-day, focused on oral evidence delivered before a judge who is taking careful notes over the demeanour of witnesses, which remains fresh in the jury / judge's mind by the time judgment day comes. They also imagine a witness to remember things, assuming not a lot of time has passed between the incident and trial. Present day trials are anything but — they take years to commence, and once they do they are stop-start affairs, relying very little on the orality of proceedings but instead on the written copy of what the witness has deposed. Older rules on examining witnesses focused on orality end up creating more problems rather than solutions.      

Theme 2 — Admissibility and 'Un-ringing' the Bell

The jury trial / judge trial distinction becomes relevant especially when we think of how the IEA / BSA deal with the issue of objections to the 'admissibility' of evidence. An easy example will do: the IEA and BSA both render evidence of confessions made to police officers inadmissible (with a limited exception, which we needn't bother with for now). 

In a jury trial, if such a confession was being led, counsel could pre-emptively object and ensure the jury isn't using this material in its decision. But what about a trial held by the judge? This material would go before a judge, who will look at it, and if an objection is raised the judge will have to decide it. Even if the judge holds that the material was inadmissible, can we really, truly, say that the confession did not have any impact on their decision? Can we, in other words, really expect that the text of the law can 'un-ring' the bell which has rung when the material is first seen by the judge?

If we stick to a theory of judges being supreme beings always bound to go by the law, then sure, their ultimate decision can never be affected by them being shown inadmissible evidence at the trial. But, lets be honest, we all know that is not true: seen in how appellate courts across India routinely overturn decisions on grounds of improper consideration of evidence by trial courts. To think that this is a problem with judges is, I would argue, a shortsighted view. The scheme of the IEA / BSA contributes to this failing, by creating rules and then applying them unreasonably by asking the courts to artificially splice their mind over the life of a case.      

Theme 3 — Reconsidering the '6-55' Relevance Scheme

Flowing from this is a critique of the '6-55' scheme — this refers to a detailed set of provisions in the IEA from Section 6 till 55, explaining to us the concept of 'relevance'. Bear with me as I spell it out.

The IEA, as part of a logical turn in evidence theory in the 19th Century, follows a simple idea - anything relevant should be admissible. The shift was seen as welcome, doing away with many artificial rules barring all kinds of useful material from consideration of a court. The endorses this logic in section 5, and goes on to spell out what is meant by 'relevant' for purposes of trials in Indian courts through Sections 6 to 55 of the Act. So we find that evidence of cause and effect, of motive, of alibi — all of these are, naturally, relevant, and so naturally kinds of evidence that can be led at trial.

Dumbing down the concept of relevance was intentional. Stephen felt that it would allow for greater consistency across a jurisdiction not fully familiar with English law concepts. The scheme has its admirers till today — no doubt also in the Government which chose to retain it lock, stock and barrel (minus some pre-partition references in the illustrations). But having such a detailed scheme of relevance comes with its problems. There are limits to language, and breaking up the ordinary goings-on of life into Victorian prose creates confusions in a world which has moved far from that context. It also creates a problem of exclusion - what is not in Sections 6-55 is beyond the pale. Why should it be so? Can't we trust the judge — the same judge who we trust to exclude inadmissible evidence from consideration — to decide what is relevant and what is not?

Linked to this is another problem with the IEA approach to admissibility, adopted in the BSA. By stating that all that is relevant is admissible, without considering that some of this evidence many be tainted due to constitutional guarantees which came in after 1872 - either directly or by implication. Surely the constitutional barrier cannot be undermined by statutory rules, but we see time and again courts are stuck in this dilemma, most commonly in context of the right against compelled self-incrimination and most recently in context of the fundamental right to privacy.

The 'relevant = admissible' coda also comes unstuck because of the asterisk that an IEA placed at the time, which has become an increasing point of debate as the world has gone digital. Yes, all that is relevant is admissible, but for some kinds of material there are additional hoops that have to be crossed. Documents must be original; Wills must have two attesting witnesses; And, most relevant for us, Printouts must carry certificates of experts. Having such rules might have made sense at the time as a compromise to the logic of relevance, but does it make sense to retain them even after the IEA embedded its roots in the system over 150 years?                  

Theme 4 — Codifying Appreciation of Evidence?

The IEA and BSA extensively deal with admissibility and relevance of evidence and facts. But they conspicuously say very little about assessing appreciation of evidence by a judge. Does this mean that there are no rules governing this field, and they are left to the whims and caprices of a judge? Not at all. There are rules which have been cemented over time, operating at par with the codes while not being codified. A good example is the treatment of approver's testimony — not enough without corroboration — and consideration of a case based on circumstantial evidence.

Why did the IEA and BSA not spend so much time on weighing evidence? Because, traditionally, it was a task left for the jury which was guided by a judge in each case by way of the judicial instructions given at the close of evidence. It was these instructions which birthed many of these rules in the first place. Now, even as there are no juries, the value of these concepts has meant that judges continue to adhere to them as if they are edicts. If we are sticking to codes, then why not add these rules as well, to leave no matter of doubt and perhaps improve upon them?

Concluding the Series

The Indian Penal Code, Criminal Procedure Code, and Evidence Act, were living monuments by the time of their repeal in 2023. Like any other living monument, they stood still (mostly) while the world around them drastically changed. This created a paradox where legal codes hardwired on 19th Century problems and solutions for a former colony kept being used to deal with 21st Century problems faced by the most populous country in the world. Recognising this, in 2023 the Indian government finally decided to pull the plug on the codes. Thus, on July 1, 2024, they were replaced with three new laws which operate ... almost exactly the same way that the colonial codes did.

The three posts in this short series sought to highlight some themes for discussion surrounding the three codes governing the Indian criminal process (now, from beyond the grave). With a focus on systemic issues and concepts, rather than specific nitty-gritty type issues, the idea is not to suggest, even for a moment, that these are the only themes meriting discussion or that the thoughts here are the only take on those themes. The point, as always, is simply to sustain the ongoing conversation around the architecture of the Indian criminal process.                      

Codification of Criminal Law (Part 2): The Cr.P.C. and BNSS

The previous post in this three-part series kicked off our discussion on the Indian criminal codes with a discussion on the Indian Penal Code 1860 and its 2023 counterpart. In this post, we turn to the procedural law underlying a bulk of the Indian criminal process: the Criminal Procedure Code 1973 [Cr.P.C.] which was replaced in 2023 with the Bharatiya Nagarik Suraksha Sanhita [BNSS].

Much like the previous post, here again the idea is to identify broad themes which have had, and continue to have, an impact on the legal system. In this post, I offer four such themes, which are kind of complementary to the previous post on the IPC.

Theme 1 — The Identity Crises within the Code

If you take a look at the BNSS or the Cr.P.C. 1973 (OK, fine, just the index), you may come away thinking what, exactly, are we dealing with here? Is this a policing law? An investigations law? A structuring of criminal courts statute? Or a law regulating criminal procedure and trial? Well, it is a law rolling all of these facets into one. In fact, it had even more bundled into it before the Indian Evidence Act was passed in 1872, and it was accompanied by different Presidency level acts on criminal procedure for a while too! 

The IPC has the lengthy Report of the Law Commissioners as a precursor which we can refer to for understanding some of the 'how' and 'why'. There is no comparable document when it comes to understanding the choices made for criminal procedure legislation in India. Sure, there are a few reports of the Law Commission dealing with this part of the codification journey, but nothing which spells out the rationale behind all of the choices, including the choice to craft a law which is dealing with so many different aspects under one roof. 

Not having a Report conveniently setting out this rationale does not mean there is none, and more enterprising scholars may look through the archive to find answers. Till they do so, I will proffer a guess, which is that the jumbling up of the Criminal Procedure Code stemmed mainly from the need to retain as much of the pre-existing regimes in place across British territories as possible for administrative convenience. And a key feature of this regime was the massive power vested in the office of the Magistrate. 

It was the office of the Magistrate which tied these threads together to weave one law of criminal procedure. If there is a sense of identity crises, it is due to the multiple roles that were played by Magistrates at the time: they performed executive as well as judicial functions. Naturally, then, the law would reflect this tendency. You had one part of the law deal with the purely executive functions of Magistrates, in taking bonds for keeping the peace and passing orders to maintain order and address emergencies. Then there was their control over investigations that are run by the police, which was again mostly an executive mandate - almost everything police did required reporting to magistrates, or would be done on their orders. Then we had the judicial part of their duties in the form of either running trials or committing cases to the sessions courts.

Unwieldy as it may be, the scheme of the criminal procedure code made some sense as a legal document speaking largely to the magistracy. Once that underlying basis goes, it becomes very difficult to justify this amalgamation of different pursuits under a single umbrella. After gaining independence, India progressively brought about a separation of the executive and judiciary and terminated the heyday of the magistrate in the letter of the law (spirit notwithstanding). However, absolutely no change was brought about to the scheme of the procedure code, which makes very little sense. Even with the BNSS no efforts were made to organise the law any better.      

The resulting problem is not just of poor design. The parts of the code which dealt with executive powers were drafted very differently from parts regulating exercise of judicial powers. There is a lot of leeway given for decision-making in the former, allowing for great misuse and abuse of wide discretionary powers. This may have made sense in a colonial setup where there was nobody superior to the executive, but it is entirely antithetical to a constitutional setup. In refusing to critically revisit the Code and resolve its identity crises, the Indian Parliament perpetuates this colonial tendency.   

Theme 2 — An Unfair Balance of Power

Which brings us to the second, related, point. The criminal procedure code was drafted at a time and place when the objective was to control subjects and not govern citizens. Famously, in the context of search and seizure clauses in the Code being overbroad, it was noted that the notion of 'rights' was absent from the considerations driving the Code. 

There is an imbalance of power, by design, within the document. It does not foster accountability in the exercise of state power. Instead, the scales are weighed in favour of the state, against the citizen. Provisions relating to exercise of discretion by an officer while performing tasks — police arrests, emergency provisions for magistrates, bail, etc. — appear to lay down some standards, but on closer scrutiny these words are hollow and confer a carte blanche upon officers. This phenomenon (in respect of executive power) has been written about by scholars like Nasser Hussain and Radhika Singha to criticise colonial lawmaking. The outcome is to create a system in which there is precious little that an ordinary individual can do in the face of oppressive state power besides submitting to it. 

There was no moment of reckoning at India's independence and adoption of Constitution for the 1898 Criminal Procedure Code. If the idea was that the Constitution would simply perform some magical blood transfusion, ridding the document of its oppressive tendencies, that did not come to pass. Neither did such a reckoning occur when the Cr.P.C. 1973 replaced the 1898 Code. Now, that trend has been continued by the 2023 BNSS.  

Theme 3 — The Rise of Special Criminal Procedure

The previous post raised this issue of the general versus special parts of the criminal law and how there have been calls for consolidation as part of reform measures for substantive criminal law in India. However, this premise of treating the general / special divide as a substantive law problem was questioned. Instead, I argue, it was and remains a matter of procedure. 

Over time, the oppressive nature of the general law was not oppressive enough. It guaranteed trials to defendants with a slew of procedural rights. Slowly, and steadily, we see that the colonial state became exceedingly unhappy in extending such procedures for mettlesome agitators, and began to introduce novel legislation with truncated trials before show courts. The highly political element charging special laws gave way to a realisation that it really was not ideal to have all kinds of cases adjudicated by the general law. Corruption, black-marketing, and other social ills in the first decade of independence got the special law treatment, where the fast-tracked and muscular procedure of the law was as important as the punishments being imposed. This trend has continued in the decades since, and its most recent avatars are laws like the UAPA, PMLA, NDPS, NIA Act, to name but a few.

What's interesting is that over time, even as special criminal procedure kept growing, it was not as if the general law remained static. It took turns to notably reduce many of the features which had made it so attractive (or unattractive) to defendants facing prosecutions. Committal hearings went out the door. Framing of charge became a process reliant on just the police papers and not sworn testimony. While the gap between them may have reduced, there still remained a slew of protections available in ordinary cases which were kept entirely away from some of the special law regimes. Perhaps the most important of these being the bar on confessions to police officers being tendered into evidence.

I would again reiterate that it is not the existence of substantive crimes in different statutes that is the problem, but this existence of special procedures to deal with some kinds of crimes. It gives obvious incentives to use some laws over others, and allows for obvious discrimination at the hands of government which can easily be masked using the language of state interests. And the problem flows from the Cr.P.C. / BNSS failing to codify any general non-negotiable rules. You can perhaps argue that it is ideally something left to the Constitution.                      

Theme 4 — 19th Century Trials, 21st Century Problems 

The 1861 Cr.P.C. and its colonial successors crafted a procedure for conducting trials which was fit for their times. In retaining wholesale the structures that were adopted for the 19th Century, notwithstanding the effort of the 1950s to try and chop off some corners, successive legislatures for independent India have ignored the obvious: that a 19th century design may not be eternally fit for purpose.

There is a lot to consider here, but let's take only a few examples. The Cr.P.C. adopts a funnel design for processing cases, asking the same question — should a case go to trial? — multiple times before actually starting trial. This might have been beneficial at a time when there were not that many cases clogging the docket, but not anymore. Especially, because a funnel design can easily collapse into farce: There is no point asking the same question if you will mindlessly give the same answer each time, with the case just taking more time to plod along.

Then there are the specifics for trials. It made sense to have different procedures 'warrant' and 'summons' cases in an era where there was a marked difference in their seriousness. But over time the gravity of summons cases increased, leaving only 'summary' trials for cases that are of a comparably lesser gravity. So why retain three categories for magistrate trials? Especially as in many statutes permitting summary trials, there is an option to shift a trial to the other track. Why not retain a unified process for trials before magistrates, which would eliminate a lot of confusion as well as arbitrary procedural gimmicks that continue to trouble courts and provide avenues for delays? No answers forthcoming in the BNSS, unfortunately.

It sounds like stating the obvious, but it needs to be said out loud: trying to solve 21st Century problems using 19th Century legal procedures is doomed to fail, even if you try and do it using video-conferencing or other digital means.                           

Concluding Remarks

In the first years after independence, the Home Ministry of the Central Government produced an interesting memo in which, it was argued, that the existing procedural setup may not be suitable for independent India with its teeming caseloads and delays. There were two paths available, the memo noted: Burn the existing system to the ground and come up with a new one, or make some necessary amendments for now and kick the can down the road. The latter approach was preferred and led to changes in 1955 designed to speed up the process (and punish perjury). 

Over the next two decades, you can see this initial debate flickering in the background as there is a review of the entire legal process by the Law Commission followed by specific reviews of the criminal procedure code by that Commission. Unsurprisingly, the appetite for radical reform had only reduced, resulting in the 1973 Cr.P.C. which, barring a couple of truly radical moves like a clause for default bail, was content in retaining the existing procedures. 

The BNSS has chosen to further this legacy by retaining the 19th Century procedures well into the 21st, and blissfully hoping for different outcomes merely on the strength of non-enforceable timelines and the promise of technology. We do not know what discussions led to drafting the BNSS, as the government is yet to release the reports, and so can only wonder whether any prospect of radical reforms ever raised or has that flickering flame of the 1950s and 60s been snuffed out.  

Ramblings on the New Codes

This is a short post which hopes to make three brief points. First, I want to draw attention to an interesting contribution by Prof. Arudra Burra and develop further on his critique of using the colonial / decolonial framing in context of the new criminal codes. Second, I want to bemoan the startling lack of imagination in how successive governments, scholars, and us lawyers continue to display when we think about reforms. Third, I hope to urge readers to continue to write on the intended and unintended consequences of the codes!

Of the Colonial Milieu

Prof. Burra argues that the decolonisation framing to argue on the merits / demerits of coming up with new criminal codes to replace the 19th century ones is 'the wrong answer to the wrong question'. He does not comment on the substantive content of the codes itself but his limited focus is to argue that the framing itself is spurious, tying to his earlier work on this subject. 

The intervention is extremely vital and helped me frame some thoughts I had after reading an excellent book on Myanmar's criminal process by Nick Cheesman (hat tip Rohit De) and earlier research on the growth. What I was left thinking after finishing Cheesman's book was that the decolonial / colonial framing to argue about the criminal codes is not merely spurious, it is actively detrimental to the development of law. In projecting everything colonial as 'bad' but retaining most of it, we are not only being facetious but actively jettisoning valuable links to a global legal tradition with a remarkable history that would help us immensely to continue to make sense of our immediate milieu. Sure, it is a bloody and oppressive history, but it is in equal parts an erudite, revolutionary, and inspirational history of the world which we must hold close and keep learning from, rather than shut our eyes to. The level of interconnectedness in the colonial legal world is crying out for exploration, and not for being consigned to the record rooms by a bandwagon of jingoism and arrogance. 

The Barren Reform Imaginary

Throughout the conversations about the 'Aparajita' Bill — only the most recent example of how it is always politics which wins over principle in matters of criminal law — it was one aspect which stood out. A criminal process which is more punitive and more quick to deliver outcomes (soon faster than the transmission of thought) is all that the political class seems to view as 'reform'. In this regard, it is ironic that barely three months after the new codes promised exactly these two developments, a state government has brought in such a set of amendments as if to say "I see your reforms Mr. Union Government, and raise you tenfold".

Maybe it is not their fault. Look at the debates which we have around the legal system and it is clear that the reform imaginary is just completely barren. Today all that the "smart people in the room" (yes, economists and data scientists, I am looking at you) want to do is for the process to be faster to free up more time and give us more GDP growth by showing some chain-reaction of cause and effect. The more ethical set of reformists will also focus on this conversation, but for good measure decry deterrence as not being evidence based. 

There is far too little radical thinking about the process and its contents. Where is the paper that dares to re-imagine what the criminal process may be like, or what a new set of crimes may look like for contemporary India? Gathering cobwebs in the physical and digital spaces. The more I look at the literature generated in the last two decades on issues of the criminal process, the more I am left to wonder whether any outcome other than the codes with their minimal changes to status quo could have been realised even by the most agreeable of dispensations.

Time to Write!

We are all witnessing an unprecedented time where an entire system of legal professionals appears to be trying its best to somehow make sense of the relatively few changes that the new codes have brought upon us. Until such time that High Courts issue practice directions to help, which I would argue is the most sensible way to resolve many issues, let us try to write about the problems we are facing and solutions that courts are working out! 

For instance, how are the provisions on service by way of electronic means being treated by the courts? Or, what about the provisions requiring the accused be heard before taking cognizance in cases instituted upon private complaints? And, of course, what about Section 531? By sharing insights across state boundaries, all of us can do our measly bit to improve the lot of litigants who are the ones ultimately suffering the vagaries in interpretive choices that courts will make. 

The Price of Liberty

There is not a lot of intelligent comment, critique, or engagement possible with laws that claim to be something new, but which are, in fact, little more than badly aged wine in gaudy new bottles. The laws are so terribly lacking in anything new of substance that even the opinion pieces have become monotonous even as they have been frequent. The bottom line is pretty straightforward: No decolonisation, sketchy reform, largely copy-paste with a little dash of the draconian here and there, and an Indic spice to make it look Indian (make sure you fix all those old illustrations referring to foreign lands in the Evidence Act, dear Draftsman).

I do not want to add to this. I wish I had no truck with this, but that is impossible. Instead this piece is just going to share a sense of anguish. What pains me is the thought that come July 1, the citizenry will yet again be stripped of its decency and turned into little more than subjects. Subjects, who will now be the lab rats upon whom the latest 'good idea' of the despots in power is to be tested. Because if one thing is clear from all the publicity blitzkrieg that the government is trying out, it is that the state machinery in-charge of enforcing the new laws — police, judges, government officials — are either still being trained to do so, or in some parts have probably not even started to do so. 

I am not even going down the path which questions the claims of training. As someone who has seen a few official 'up-skilling' and 'training' programs, let's just say that a few dozen of such sessions, not merely a few, are required to train someone. Nor am I going too much into what is being imparted at these trainings; which if the puff-pieces are correct is seriously troubling. Take just one example. Both India Today and The Hindu (amongst others) have reported that one of the changes about which officials are being taught is that "police custody has been increased from 15 to 90 days" (one adds that this is "depending on the gravity of the offence"). Rather than clarify the shoddily drafted clause (section 187), the government is actively promoting its most draconian interpretation.   

I am still finding it difficult to move past the fact that the governments are openly admitting to the lack of preparedness in enforcing arguably the most important set of laws. At some level, you have to respect the honesty. The puff-pieces could have said that everything is ready and a new reality will dawn upon us. That they haven't, and still nobody is really too fussed about these new laws coming in (hardly front-page news it has been), is perhaps all we need to know about how seriously we are taking this paradigm shift that will hit us in the solar plexus in a few days. It is far from surprising, though. Crime, criminal law, and all such matters, are always something that concern the underclass of society, and not us, the respectables. It is the most routine from of 'othering' that we engage in. 

Many will soon stop protesting and secretly enjoy in the implementation of the new laws. It will give us great professional satisfaction in advising persons about their details, finding problems in their working, and some lucky ones will even be crafting arguments to help keep the laws form unleashing their draconian potential to the fullest. But during all of this, I hope we can do our utmost to first challenge, and later keep reminding ourselves and others, about the injustices we are likely to encounter. When some some poor young man from a religious or socio-economic minority becomes the first person arrested under the new laws, please do not just log that as a fun fact or data point or a headline (yes, I am looking at you, news media). Stop and think about how this unfortunate person, and other such 'common criminals', are going to be processed by the semi-trained state machinery on the conveyor belt justice served up in magistrate courts with police custody being granted for months. Until one fine day when the constitutional courts sit up and take notice as a fit case (read monied) reaches their doorsteps, and the law is clarified to tell us that police custody was not really possible for months after all. 

The price of liberty, as the saying goes, is eternal vigilance. It will take every ounce of collective strength to ensure that the price of liberty is respected in full by the state as it tries to bulldoze through its latest vanity project upon us, even though we know that not everyone is equally likely to be caught in the path of destruction.

The Criminal Codes are Dead; Long Live the Criminal Codes

[This is a long post]

Prologue

For over a century, the foundations of the Indian criminal process have been identified by its three codes: the Indian Penal Code of 1860 [IPC], the Criminal Procedure Code of 1973 [Cr.P.C.], and the Indian Evidence Act of 1872 [IEA]. Not anymore. Henceforth, unless some last minute surprise is sprung upon us, the three codes are to be replaced by the Bharatiya Nyaya Sanhita [BNS], the Bharatiya Nagarik Suraksha Sanhita [BNSS] and the Bharatiya Sakshya Adhiniyam [BSA] of 2023.

There are many questions that come to mind when considering this development. Perhaps many of them combine into a single, big, question: Why? Was the existing set of laws problematic, and if so, then in what way was it problematic? Were the Codes failing to strike a just, fair, and reasonable approach to questions on defining and punishing crime? Were the structures proving to be outmoded given the fast technological pace of society? Or, all of the above?

None of these questions have uniform answers, or objective positions. One can only speak for oneself. In that regard, I would unhesitatingly state that the 19th Century Colonial Codes (or their 20th century avatar in case of the Cr.P.C.] were deeply problematic and required a brutal re-examination. A comprehensive study of how courts had interpreted the clauses across these Codes was required to update the statutory position. The archaic language of the IPC required revisiting, its punishments needed streamlining, and the general law of crime required to be harmonised with the burgeoning field of laws defining specific crimes. Far more important was the need to tear down the Cr.P.C. and IEA and rebuild again to solve what the most pressing concerns of the criminal process, which have been rotting it from the core since independence (and even before): delays, significant pre-trial incarceration rates, and a complete surrender of personal liberty and privacy to batons and lathis wielded by the police.

The fainthearted would be pleased to note that none of this has come to pass. The Codes are dead, but they gloriously live on in the BNS, BNSS, and BSA. What we have just witnessed is a grand sequence where the villain sheds an exoskeleton to assume a more monstrous form appropriate with the times. In other words, the new Sanhitas do not offer a new perspective on administering the weighty notion of 'criminal justice' for an independent, democratic, republic as we were promised, but merely offer a shiny new vessel to sustain the beating heart of colonial ideas that the Codes represented. 

With that sombre prologue out of the way, it is time to look at what appears to be in store for us.

Repeal and Savings

Now that the new laws are almost here, arguably most important is the question is what happens to all that was done under the old laws? When it comes to offences themselves, the constitutional prohibition of any criminal liability retrospectively allows us to assume that the new BNS offences (deceitful sexual acts; terrorism; organised crime, etc.) will not apply to acts done on a date prior to the date when the BNS is brought into force (whenever that is). However, at the same time experience has taught us that things are never straightforward when it comes to interpreting law. The iron-clad prohibition of Article 20(1) may be done away where offences are continuous, and so we may still be presented with situations where prosecutions are brought under the BNS for acts which began prior to the date of its enactment but continued subsequently to create an unbroken chain of conduct. In respect of acts that were offences under the IPC but are not covered by the BNS, even as the BNS repeals the IPC, nothing in the BNS overrides application of Section 6 of the colonial General Clauses Act 1897 which ensures that such prosecutions do not automatically lapse. So while there is no Section 124-A IPC prosecuting sedition, or Section 377 IPC prosecuting unnatural sexual acts, existing cases would not die a natural death. Similarly, till such time as other laws are amended to erase all presence of the colonial IPC from the statute books, we would have to keep referring to Sections 6 and 6A of the General Clauses Act to make sense of how will such references to the IPC be read [think the PMLA schedule, for instance].

When it comes to the Cr.P.C. and IEA, the general rule being created with repeal is that the entry of the BNSS / BSA will not disturb pending investigations, inquiries, trials, or appeals. However there will certainly be cracks which lawyers will explore to try and make use of. For instance, what happens to a case where the police filed a closure report and it has been accepted, or a case where proceedings have been terminated prior to the enforcement of the BNSS, and the aggrieved party now wishes to revive the litigation. What about cases where the police registers a fresh FIR invoking slightly different offences to now make use of the broader remit of police custody? Would these count as 'pending' cases? Or, what happens for a case that is closed for non-appearance of a person who was declared a proclaimed offender - would it be possible to revive such a case using the new BNSS clauses allowing for trials in absentia? These are only the easy examples, and I am sure more tricky ones will come up in the next few years. Courts will want to turn to the years after the 1973 Code was introduced in 1974 to see how some of these issues were dealt with back then (although many of those dealt with retrospective application of the new Cr.P.C. clauses that enhanced the sphere of liberty, rather than truncate it further).    

Even though the BNSS declares that pending cases / investigations / inquiries will be governed by the Cr.P.C., this is not going to prevent serious changes to their working because the BNSS carries out serious changes to the administrative structures of our courts. I refer to the abolition of the cadre of metropolitan magistrates altogether in the BNSS, without any provisions accounting for how areas where this system is in vogue (Delhi, for instance) will carry out the transition to now erect a new system with Chief Judicial Magistrates, First Class Magistrates, and Second Class Magistrates. One wonders how this transformation will be carried out, and whether it will give rise to service law related issues if metropolitan magistrates — who are at par with First Class Magistrates under Cr.P.C. — will be divided up into the two categories. 

Changes to the Criminal Process

For most practising lawyers, what really matters is whether, and how, the rules of the criminal process are being altered by the introduction of the new laws. This post looks at some important changes in this regard that have been introduced. Note, however, that it does not look at specific issues that are going to arise because of, say, the introduction of offences in the BNS that are at present criminalised through special statutes with special procedural regimes. Nor does it look at specific issues arising within the realm of preventive powers of police and magistrates.  

Arrest, Custody, and Bail

There are small tweaks in the arrest provisions of the BNSS from the Cr.P.C. regime, besides the sorry re-introduction of handcuffing. There is hardly any change when it comes to the issue of granting bail in non-bailable cases — either in terms of the guiding judicial discretion in this process, or by reducing the number of non-bailable and cognizable offences. There is rather slight confusion introduced because of the tweaks between the first and final versions of the BNSS. The key changes here are, firstly, to the legal regime on custody post arrest during an investigation, and secondly to granting default bail where a person has spent a significant time in prison as an undertrial.

On the former, the BNSS appears to have done away with the limits on police custody being restricted to the first fifteen days after arrest to allow it within a period of the first forty or first sixty days after arrest. What is more uncertain is whether the BNSS has also done away with the maximum limit on police custody being fifteen days. If so, then it would signal a significant shift in the legal position which has had the duration of police custody capped on fifteen days since even prior to the 1973 Code. The wording of the BNSS clauses would make it seem that the absence of 'police' custody in Section 187(2) of the BNSS is not deliberate but an inadvertent omission. It would, nevertheless, be clarified only after some person suffers the consequences, and courts rule on the issue. Unless parliament acts proactively - which as the passage of the BNSS shows us, it certainly can.  

Why restrict police custody, and what is the consequence of removing the shackles so to speak? A colonial and post-colonial learning about the administration of criminal law in India has been that the police resort to unfair practices to solve a case. This involves extracting pressure on people in their custody to make a false statement. Enhancing the period to take police custody proportionately raises this risk, especially as this enhancement is being conceived of without any increase in the rights of the detained person. Placing a limit on police custody as being available only in the first fifteen days furthers a separate goal of ensuring that the police work with promptitude. Removing this limit takes away any incentive for the police to try and solve cases quickly. This would mean that more and more investigations only end when nearing the upper limit of 60 or 90 days — cementing the perverted turn over the last fifty years (and manifesting the fears of legislators) where ceilings that had been installed by the 1973 Code became default periods for the investigation to complete.        

The extension of police custody also has an impact on bail. In practice, courts are reluctant to grant bail if it appears that custodial detention is required to secure some investigative purpose. Most lawyers thus do advise clients to wait till the first fifteen days expire, or police say that they do not require further custody. Now, police will have a card up their sleeve to invoke custodial detention at any stage during the period of investigation, creating a practical difficulty for courts who had become used to working a certain way. It would require re-programming how courts view these claims if we are to ensure that two / three months without bail do not become default periods of incarceration in all cases.  

In respect of bail, one must mention the lip-service paid to the Supreme Court's endeavours in Satender Antil. The BNSS changes provisions that were being interpreted in some states as mandatorily requiring an arrest before the chargesheet was filed in court, which was what started the litigation in Antil. However, as we know, Antil went far and beyond that to suggest policies on guiding judicial discretion for bail. None of that has made its way into the statute. What the BNSS does do is bring in significant changes in respect of the provisions on default bail. Currently, Section 436A of the Cr.P.C. carried a rule where a person was entitled to bail if she had spent a time in custody that was equivalent to half the maximum possible punishment for a crime. Lets be clear — 436A was not a ringing endorsement to liberty, but a damning hang-your-head-in-shame indictment of the legal process. Section 479, BNSS reduces this period undergone to one-third of the maximum imprisonment but only for 'first-time offenders' [not 'offenders' for undertrials]. But what one hand giveth, the other taketh far more. Section 479 carries a new explanation which excludes persons against whom there is an "investigation, inquiry, or trial in more than one offence or in multiple cases". Make no mistake, this is the overwhelming majority of persons who are ensnared by the system. Practically every FIR has more than offence invoked if you add conspiracy to the mix. Thus, in other words, the BNSS renders 436-A practically redundant, and replaces it with a rule that such undertrials can be released if they have already served out the maximum possible term of imprisonment.   

Investigations and Inquiries

The big-ticket declamations on the floor of the House and outside were the introduction of technology in how police conduct investigations and inquiries. A close look at the BNSS reveals the hollowness of the claim. The bogey is made apparent by the extension for police custody remands and confirms that what the BNSS does is continue how investigations have been (and arguably makes them poorer by encouraging police to rely on custodial interrogations more) whilst using technological means to smooth things over at times. For instance, allowing statements to be recorded over video by police during investigations, or by recording the conduct of a search. Again, this shows that the BNSS does not change how investigations are being done. If anything, this can add to troubles later, because there will be doubts during trial as to reliability of what has been recorded as standardised practices will not easily emerge given vast disparities of funding for police stations across India. A real commitment to introducing technology would mean the introduction of provisions in the BNSS that regulate the practice of agencies when it comes to seizing our personal devices and rummaging through them on the pretext of an investigation to safeguard privacy, but of course the BNSS is silent on all that while simply expanding the scope of what material can agencies demand persons to give and include electronic devices / electronic communications [Section 94, BNSS].   

Another noteworthy addition is a set of provisions allowing for seizure of property. This is Sections 115 to 122 of the BNSS. This introduces new powers for police officers to effect seizures and even provisional attachments of property [Section 117] and allows for forfeitures of property where a court concludes that these are proceeds of crime even though the trial has not concluded, without specifying any rights for the aggrieved to challenge orders or specify what happens if the trial results in an acquittal. In this fashion, the BNSS may have impliedly repealed the Criminal Law (Amendment) Ordinance of 1944 and replaced it with the broadest civil forfeiture regime ever seen in Indian law, that is modelled on provisions tried by certain states in context of corruption crimes. Provisions which, though deeply problematic, were blessed by the Supreme Court in 2015 [Both the 1944 Ordinance and the 2015 judgment have been discussed on the Blog and elsewhere]. 

There are some crucial new provisions on registration of cases. Practices that had been in vogue for years i.e. the registration of FIRs online and the registration of 'Zero FIRs', are now given statutory force with Section 173 of the BNSS. At the same time, the BNSS dilutes and further muddles the legal position on the very concept of registering an FIR. It gives statutory backing to the police conducting preliminary inquiries for a category of cases (punishable for three years but less than seven years) and determining if a 'prima facie' case exists. If it does exist, then they proceed to investigate. But if not, then what? Logically, they do not investigate. Which then begs the question, what about all other cases — would they be lodged on the basis of some non-statutory inquiry showing existence of a prima facie case? What does that mean for the idea that the police must register FIRs? Again, it is not that the BNSS drafters were helped by the Supreme Court's take on these issues in Lalita Kumari either [critiqued on the Blog]. But what they have done is only make things worse.

There are even more innovations when it comes to registration of cases against certain persons — public servants. The final version of the BNSS does away with some provisions in the earlier draft published in August, but it retains a mighty set of new protections in Section 175 insulating public servants from police investigations being directed by magistrates on the basis of private complaints. This is reiterated when it comes to private complaints filed against public servants directly in court [Section 223] Here, the BNSS has taken a step on an issue which was pending before the Supreme Court after its M.K. Aiyappa decision which had sought to introduce such a protection was referred to a larger bench. It has gone above and beyond even what M.K. Aiyappa envisaged by giving the prospective accused a right to be heard before start of a case. In a setup where prior sanction was already required to instituting prosecutions, introducing this rule only blunts the idea of holding those in power accountable to the public even further. 

Lastly, in respect of completing investigations, a notable addition has been the introduction of some time limit within which further investigation must be completed unless extended by courts [Section 193(9)]. This is a useful addition, which at the same time makes one wonder why not introduce such a clause for completing investigations generally. The answer, as most lawyers know, is because that time limit has long since been seen in Section 167 Cr.P.C. [now 187 BNSS] which directs release on bail unless investigations conclude within 60 / 90 days, making 60 / 90 days the usual time for investigations to conclude. Again, this was, and is a gross misreading of what the law required — 60 / 90 days was the upper limit, which has become the usual course of time for investigations to conclude only because police know they must file something to avoid release on bail. Furthermore, Section 193 requires some communication to victims about the progress of investigations, which is hailed as some revolutionary step since this was absent in the old Section 173 Cr.P.C. In reality, it is a cop-out, and a failure to incorporate mandates of the Supreme Court which require copies of the Chargesheet (or Closure Report) filed by police with victims so that they can pursue their remedies. Adding the requirement to share copies at a post cognizance stage, as the BNSS does, worsens the position of victims by only entitling them to copies where chargesheets are filed but not allowing them to clearly contest the failure of police to do proper investigations by filing protest petitions. 

Trials and Appeals

A case will end in three years under the BNSS was the battle-cry. Well, so what is the response? NCRB data shows that many cases already end within three years. It would be quite something if all cases will end within three years was the claim on the floor of the House. Which, obviously, it was not. And cannot be either, because like all other parts of the BNSS, its parts on governing trials and appeals also retain the beating heart of the Cr.P.C. process while tweaking a few things here and there.

The sales-pitch changes here were time limits and introducing provisions for conducting trial even when an accused obstructs the progress of a trial by refusing to show up, where currently such cases would have to be kept in cold storage as there is nobody to condemn. Let's take both of these in turn. The only time limits are on conducting arguments on charge—for sessions triable and warrant triable cases instituted on police reports, but not warrant triable cases on complaint or summons triable cases—and on pronouncing judgment. There are no time limits on conducting evidence. This begs the question "Was argument on charge or pronouncement of judgment a stage which took so much time that placing time limits on it will solve delay?" The answer, obviously, is no. Arguments on charge in most cases do not take long. Similarly, judgments are pronounced with promptitude and where they cannot be so pronounced the Cr.P.C. allows for a court to release an accused on bail. Where it does take time for courts to hear such arguments or write judgments is where state agencies register FIRs against 40 people based across the country on some amorphous notions of them being involved in a 'larger conspiracy' and file Chargesheets with documents that run into ten thousand pages. And, make no mistake, since the BNSS does not change how such cases are investigated, arguments on charge in 'larger conspiracy' cases that the agencies love will continue to take much longer to finish than the few months that the BNSS has in mind, as will writing judgments at the end of such trials. 

In short, the marginal gains by introducing these time limits are imaginary at best. Especially if we take a look beyond cases instituted on police reports to cases instituted upon complaints. Here, fresh avenues for delay have been created by giving accused persons a right to be heard where previously none existed. Section 223 prohibits taking cognizance on any complaint without giving such an opportunity, and Section 274 provides a fresh right of hearing before framing notice / charge in summons triable cases. Of course, what seems a provision for delay to the victim will be heralded as a boon by defence lawyers to nip false cases in the bud. But, ultimately, it is unquestionable that such cases will take longer under the BNSS. 

Studies conducted by the government and judiciary itself have shown that the real stage which takes time in a case is recording evidence. Time limits or schedules to finish this process are not introduced. What the BNSS does is introduce a peculiar provision [Section 336] which allows for recording evidence of 'successors in office' when the original government officer who prepared a report is unavailable. This even includes police officers. The provision has been retained in the final version despite criticism by the Select Committee; and, naturally, the ceremonial debate on the floor of the house did not explain why this is the case. It pains me to say this, but in a bid to rush reform, the government appears to have sponsored a move that would encourage acquittals by asking that prosecution leads incompetent evidence of witnesses who are not the authors of documents to sustain its charge. 

Which brings us to the second major reform under Section 356 of the BNSS. Conducting trials against a person who has absconded is, thankfully, not a bludgeon. It appears to create a procedure that needs some application of mind before a court proceeds on that path, and allows for the decision to be revisited once an accused does show up either voluntarily or after being apprehended. I say 'appear' because it is unclear exactly how the procedure will operate. What is meant by giving the accused an opportunity to 'examine' evidence? What impact will conducting trials on mobile phones have on the reliability of what has been recorded? What will be a constitutionally compliant reading of sub-clause (8) which allows extending the clause to any absconder by notification? A well-drafted code would not leave all this up for grabs. 

Execution of Sentences

Despite the Select Committee recommending some more clarity on community service as punishment, no such clarity came in the final version of the BNS or BNSS that have now been passed except for helpfully telling us that community service is punishment that benefits the community [Section 23, BNSS]. So much for a new dawn.

There are two other important developments in respect of the execution of sentences which I would want to mention here. First, we have legislative sanction for imposing solitary confinement [Sections 11, 12, BNS], allowing it to be granted in any case where rigorous imprisonment is imposed for a sentence of six months or more in prison. In other words, practically any convict may be subject to solitary confinement. One wonders if this is in consonance with Article 21 and its reformative ideals. 

Second, we have a procedure outlined for filing mercy petitions [Section 472 Cr.P.C.]. In theory it is not a bad idea as it now allows every convict to know that such a right exists and how it is to be availed. The devil, as always, lies in the details. There are unnecessary restrictions on who may file such a plea on behalf of the convict. More potentially problematic is the idea that there is a time limit of thirty days on filing such plea based on when the convict is informed by jail authorities of the rejection / dismissal of her petition by court. That the statute does not clarify that the intimation must be clearly recorded in writing and must be communicated separately to family members / counsel is startling, considering what is at stake and knowing that there will be precious time lost in the convict informing the persons on the outside who will study the order and frame the plea. Or, perhaps it is not so startling, given that the statute allows for practically all convicts to be subjected to solitary confinement for up to a week if not more.

Summing Up: Little Reform Amidst much Posturing?

Many commentators found it difficult to describe a system comprising of the existing trifecta of the IPC, Cr.P.C., and IEA as a system of 'criminal justice'. It is quite unlikely that they will find it any easier to do so with the BNS, BNSS and BSA triumvirate that will soon be upon us. There is little reform in these pages amidst the posturing, if we stick to the classical notion of reform as a measure which seeks to improve the lot of the individual. Rather, in sync with the communitarian ideologies in vogue today, the emphasis of these laws is to strengthen the already powerful state by enhancing police powers while reducing the scope for liberty. 

Such an approach is expected from a government which places duties before rights, demands that citizens do not question but obey, and treats all those who do question as potential threats to the stability of society and thus wants as much power as possible to adequately deal with the threats to restore stability. To use a now infamous analogy from another era in India's past here, these are laws to ensure that the trains run on time.    

Worryingly enough, once the dust settles, I wonder if the very fact that the BNS, BNSS, and BSA do not attempt any meaningful reform will ensure that they manage to embed themselves within the system without evoking fervent protests from various quarters. The baseline for acceptable incursions by the state into a citizen's life and personal liberty having been lowered even further will probably stop mattering after a while, since it was not very high to start with.