By- Ajay Kochhar and Aastha Naresh Kohli

India is on the brink of a legal overhaul with the implementation of the Bharatiya Nyaya Sanhita (BNS), 2023. The new legislation, with speedy presidential assent and legislative movement, aims to replace one of the three pillars of the colonial judicial framework: the Indian Penal Code (IPC) of 1860.

This movement marks a decisive commitment by the government to refresh and modernise the country’s criminal justice system. Two other laws – the Bharatiya Sakshya Adhiniyam (BSA) and the Bharatiya Nagarik Suraksha Sanhita (BNSS) – replace the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1898, respectively.

Historical Context

The foundation of the IPC was laid down under British rule by Thomas Babington Macaulay. At the time, India desperately needed a unifying code to bridge the legal disparities across its territories. Macaulay’s code not only outlined various crimes but also assigned appropriate penalties, establishing uniformity and consistency across the Indian legal panorama.

Macaulay’s foresight is evident in the long-standing relevance of the IPC. The code was ahead of its time, incorporating provisions that anticipated future changes in society and international relations. Key sections of the original IPC even set the stage for later legislative reforms, such as the Prevention of Corruption Act of 1988, highlighting Macaulay’s ability to foresee the evolving nature of crime and justice.

The Need for Change

As society continues to evolve with advancements in technology and changes in societal values, the types of crimes and their nature have inevitably shifted. Recognising this, the BNS endeavors to address current and emerging challenges. The new legislation outlines modern offenses and establishes updated penalties, showing a clear attempt to keep pace with the times.

However, the transition from old laws to new could potentially bring about confusion, especially where there is an overlap between the nuanced specifics of specialised laws and the general provisions of the BNS. Both the Unlawful Activities (Prevention) Act (UAPA) and the BNS cover terrorist activities, presenting a possible conundrum regarding the application and relevance of each law in specific scenarios.

Progressive Elements in the BNS

A laudable aspect of the BNS is the introduction of community service as a penalty for minor offenses, aligning with Mahatma Gandhi’s principles of reformative justice. Despite this progressive step, the BNS retains capital punishment, a contentious issue globally. This duality reflects the challenge of balancing traditional retributive justice with a more contemporary and restorative approach.

The BNS acknowledges the constitutional guard against retroactive criminal legislation, reiterating the supremacy of the Constitution in the Indian legal hierarchy. The constitutional ethos, especially as encapsulated in Article 20, reinforces the need for laws to adapt alongside societal developments and informs the drafting of the new code.

Addressing Concerns and Ensuring Protection

The remodeled judicial platform brought forth by the BNS may still have gaps, particularly in the mechanisms designed to reform and protect convicts, potentially undermining the intent behind a progressive justice system. The scrapping of the sedition law and introduction of more stringent measures for offences against the State can create a confusing stand with respect to the freedom and liberties as enshrined under the Indian Constitution.

Making the Bharatiya Nyaya Sanhita is a big first step, but it will only work if it’s done right. We all want a legal system that’s up-to-date, fair and fits what it means to be Indian. We’re reminded that change is needed, but we’ve got to do it the right way, so it helps society, protects people, and stays true to what justice should be. Anything less wouldn’t be fair to India’s journey to making its own rules and sticking by them.

The Way Forward

Legal change of this magnitude necessitates an inclusive and informed national discourse. A dialogue that encompasses the views of legal experts, practitioners, academics, and civil society is essential to prevent potential missteps that could undermine the law’s efficacy and social standing. Every clause and sub-clause of the Bharatiya Nyaya Sanhita needs to be examined for potential implications — intended or otherwise — through the lens of legal precedence, cultural sensitivities, and the protection of civil liberties.

An analytics-driven approach to planning would aid in identifying the various stages of the reform’s rollout. A comprehensive action plan should factor in the logistical intricacies of implementing new laws across different tiers of institutions, from high courts to local enforcement bodies. This multi-layered endeavor must set realistic timelines while allowing for flexibility to address potential setbacks and feedback received post-implementation.

Operationalising the BNS requires not only changes in policies and procedures but also a transformation of the day-to-day functioning of law enforcement agencies. Data-driven analysis could assist in identifying training gaps and help develop specialised programs catering to the updated legal provisions. Effective training, encompassing theoretical and practical aspects, is imperative for police officers, investigative agencies, and the judiciary who will be entrusted with upholding these new laws.

Inflection Point

The inception of the BNS represents an essential step towards reforming India’s criminal laws. Yet, the true measure of success for such a transformative legal movement will rest on a well-devised execution strategy. Hopefully, this journey will lead to a modern, equitable, and truly Indian justice system in a timely and trouble-free way.

As India stands at an inflection point in its judicial history, the BNS serves as a testament to the need for a dynamic and evolving legal system that responds to current societal needs while upholding the fundamental principles of justice. Crafting laws that protect the rights of individuals and serve the collective well-being of society is paramount—an underscored duty of a nation on its path to legal rejuvenation.

(Ajay Kochhar is Senior Advocate, High Court of Himachal Pradesh. Aastha Naresh Kohli is a practising advocate at High Court of Himachal Pradesh.)

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