It’s time to bid farewell to the Indian Penal Code (IPC) and Code of Criminal Procedure (CrPC), relics of the British colonial era, writes Rakesh Kumar Singh

The Modi government’s decision to repeal the British era laws--Indian Penal Code (IPC), 1860, Criminal Procedure Code (CrPC), (1898), 1973 and Indian Evidence Act, 1872, is a step aimed at removing colonial imprint from the criminal justice system.

The Indian Penal Code, 1860 will be replaced by the Bharatiya Nyaya Sanhita Bill, 2023, the Criminal Procedure Code, 1898 will be replaced by the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and the Indian Evidence Act, 1872 will be replaced by the Bharatiya Sakshya Bill, 2023.

Complex procedures of IPC, CrPC, and Indian Evidence Act have led to, a large number of pending cases in courts, inordinate delay in delivery of justice, deprivation of poor and socio-economically backward communities in getting justice with low conviction rates, overcrowding in jails and a large number of undertrial prisoners.

The I{PC and CrPC, relics of the British colonial era, have shaped India's legal landscape for decades. While these legal frameworks were significant achievements during their time of enactment, the evolving socio-political context of modern India has led to calls for their repeal and replacement. Advocates for this change argue that a contemporary, just, and relevant legal framework is necessary to address the complex challenges of today's society.

The IPC and CrPC were crafted to serve the interests of the colonizers rather than the needs of an independent India. Modern and assertive India needs a  legal framework that should reflect its cultural, social, and political identity. A legal system rooted in the colonial past could not effectively address the contemporary challenges facing the nation.

Decades of amendments have led to a convoluted legal structure that often confounds legal practitioners, the judiciary, and the public alike. The complexity and ambiguity in interpreting the laws can undermine access to justice and hinder the efficient resolution of disputes. A revised legal framework could alleviate these concerns, promoting clarity and transparency.

Critics have pointed out the gender-biased nature of the IPC, which inadequately addresses crimes against women and marginalized genders. A comprehensive revision can ensure that the legal system offers equal protection to all citizens, irrespective of gender, promoting gender justice and equality.

The digital age has introduced new dimensions to crime, such as cybercrimes and data breaches. The IPC and CrPC were drafted at a time when these challenges were inconceivable. A revised legal framework would enable the incorporation of provisions that address modern forms of criminality, ensuring that the law keeps pace with technological advancements.

Contemporary legal systems emphasize restorative justice and rehabilitation over punitive measures. Repealing the IPC and CrPC offers an opportunity to integrate these principles into the legal framework. By focusing on the holistic well-being of victims and offenders, the revised system could foster social cohesion and reduce recidivism.

Certain provisions within the IPC and CrPC might not align with contemporary cultural and social norms. The revised legal framework seeks to acknowledge the diversity and pluralism of Indian society, ensuring that the law is sensitive to the cultural sensitivities of all communities.

• The Bhartiya Nagrik Surkasha Sanhita will have 533 sections (in place of 478 sections of CrPC). As many as 160 sections have been amended, nine new sections have been added and nine sections have been repealed/deleted.
•  The Bhartiya Nyaya Sanhita will have 356 sections (in place of 511 sections of IPC).
• A total of 175 sections have been amended and eight new sections have been added and 22 sections have been repealed/deleted.
• Bhartiya Sakshya Adhiniyam will have 170 sections (in place of the original 167 sections), A total of 23 sections have been amended, one new section has been added and five sections have been repealed/deleted.
• Colonial words removed from the proposed laws are 'Parliament of the United Kingdom', 'Provincial Act', 'London Gazette', 'Jury', 'Barrister' 'Lahore', 'Commonwealth,'' United Kingdom of Great Britain and Ireland,' 'Her Majesty's Government,' 'Possession of the British Crown' and 'Court of Justice in England'. The words 'Her Majesty's Dominions' have been omitted from the Act.
• Aiming to increase the use of technology and expand the definition of documents in the Bhartiya Sakshya Adhiniyam, 2023, terms like electronic and digital record, email, server logs, documents available on the computer, smartphone or laptop messages, website, locational evidence, mail messages available on digital devices have been included.
• From FIR to case diary, case diary to charge sheet, and judgment will be digitized.
• The use of technology will find emphasis in the issuance and servicing of summons and warrants and their execution besides examination of the complainant and witnesses. Recording of evidence in investigation and trial and litigation and all appellate proceedings in the High Court will also see usage of technology
• A register shall be maintained by all police stations and courts containing email addresses, phone numbers, or any other such details.
• Summons will be duly sent by electronic means. Search and seizure operations will also see the usage of technology. The entire process of police searching or seizing any property will be videographed through electronic devices. Such recording shall be sent by the police to the concerned magistrate without any delay.
• On the forensic side aimed at achieving a conviction rate above 90 percent plus, reforms in investigation, prosecution, and forensics by the police are envisaged. The proposed law provides for the mandatory use of forensics in all States/UTs.
• The use of forensic experts will be mandatory in all cases of offences punishable with imprisonment of seven years or more.
• Necessary infrastructure in the States/UTs will be created within five years.
• Citizen-friendly measures included in the Bills are 'Zero FIR' - outside the limits of that police station but within the State, provisions for e-FIR, and stipulation that the State Government will designate a police officer in every district and every police station, who shall give notice of the arrest of any person.
•  It also provides that police officers will inform the victim of the progress of the investigation within 90 days, including through digital means.
•  In case of sexual violence, the statement of the victim will be recorded by a woman judicial magistrate. It would be desirable to record the statement of the victim of sexual assault in the presence of a lady police officer at her residence.
• While recording such statements, the parent or guardian of the victim may be present.
•  Where the government wants to withdraw the prosecution in cases of imprisonment of seven years or more, the aggrieved party will be given an opportunity of being heard.
•  The Bills have provided for repealing the sedition/treason. Hatred, contempt, and disaffection against the government was an offence under British rule.
•  For the first time, community service has been introduced as a new form of punishment.
• Simplification of procedures has been provided in the Bills and now petty cases will be expedited by summary trial.
• A summary trial has been made mandatory for less serious cases, such as theft, receiving or possessing stolen property, house trespass, breach of the peace, and criminal intimidation among others.
• In cases where the punishment is up to 3 years (earlier 2 years), the Magistrate may, for reasons to be recorded in writing, conduct a summary trial in such cases.
• After the filing of the charge sheet, if further investigation is required, it will be completed in 90 days, Any extension of time beyond 90 days will be granted only with the permission of the court.
•  In the case of a warrant, a provision has been made that a time limit of 60 days has been prescribed from the date of the first hearing on the charge for framing of charge by the court.
• The accused person can appeal for release within 60 days from the date of notice of framing of charge.
• After the conclusion of arguments, the judge shall give a decision as soon as possible within 30 days, which may be extended up to 60 days for specific reasons.
• A maximum of two adjournments can be granted by the court after hearing the objections of the other party and for specific reasons to be recorded in writing.
•  The competent Authority will decide on sanction for prosecution in 120 days against civil servants, failing which it will be presumed that the permission has been granted.
• Evidence Civil Servants, Experts, Police Officers, and the person holding charge thereof may give testimony on such document or report.
• The words 'surety' and 'bond' have been clearly defined.
•   For unburdening the agony of under-trial prisoners, a person who is a first-time offender, and has served 'one-third of the imprisonment', will be released on bail by the court.
• Where the undertrial prisoner has completed 'half or one-third of the term', the Jail Superintendent shall forthwith make an application in writing to the court.
• Remission will not be considered for an undertrial prisoner sentenced to life imprisonment or death sentence.
• The Bills also provide for a new witness protection scheme.
•  The State Government will prepare a witness protection scheme for the State and will also be notified.
• In cases of punishment of 10 years or more or imprisonment for life or the death penalty, the convict can be declared a proclaimed offender.
•  In cases of proclaimed offenders, a new provision has been made for the attachment and confiscation of property outside India.
•  Terrorism has been defined for the first time in the Bhartiya Nyaya Sanhita.
• A new section relating to organized crime has been added.
•   Unlawful activity done by syndicates has been made punishable.
•  New provisions have been added for armed rebellion, subversive activities, separatist activities, or acts threatening the sovereignty or unity and integrity of India.
• A new offence has been included for making sexual relationships based on the false promise of marriage, employment, and promotion or fake disclosure of identity.
• Now there will be a provision of 20 years of imprisonment or life imprisonment in all cases of gang rape.
• But in the case of girls below 18 years of age, provision has been made for life imprisonment or the death penalty.
• New provision for mob lynching: A new provision has been included for the crime related to murder based on race, caste, and community among others for which provision of a minimum of seven years, imprisonment or life imprisonment or death penalty has been made.
• A new provision for snatching has also been provided.
• Severe injury leading to almost incapacitation or permanent disability will attract more stringent punishment.
• Provision for a minimum of seven to 10 years of imprisonment has been made for the person who gets the crimes committed through children.
• The fine was very low ranging between Rs 10 to Rs 500. These fines and punishments for various offences have now been rationalized in the new Code.
•  A provision has been inserted wherein whosoever is responsible for the death of a person by any rash or negligent act, and escapes from the scene of the offence and does not present himself before the police/magistrate and fails to disclose the incident,shall be punished with imprisonment of either description for a term which may extend to 10 years, which shall be in addition to the fine imposed on the accused.
•  Remissions of punishment have been rationalized like commutation of the death sentence to life imprisonment, commutation of life sentence to imprisonment for a term of seven years, and commutation of the sentence of seven years imprisonment to three years imprisonment.
• A new provision has been incorporated for trial in the absence of the proclaimed offender.
• A new section has been added regarding attachment and confiscation of property related to the proceeds of crime.
•   A large number of case properties are lying in the police stations of the country. Provision has been made for speedy disposal of such properties after preparation of details of assets and photography /videography by the Court or Magistrate, during investigation.

Undoubtedly, repealing the British-era IPC and CrPC is a bold step toward crafting a modern, just, and relevant legal framework that caters to the needs of contemporary India. While such a process is complex and challenging, it offers the potential to address human rights concerns, promote gender justice, embrace technological advancements, and reflect the values of a diverse and evolving society. By acknowledging the limitations of the colonial legacy and striving to create a legal system that aligns with India's aspirations, the nation can pave the way for a brighter, more equitable future.