Thank You, Chairman Sir, for allowing me to speak on this historic piece of legislation. I stand to speak in support of the Bill.
* In the year 1834, the first Indian Law Commission was constituted under the Chairmanship of Lord Macaulay which gave birth to the Indian Penal Code, in 1860.
* The Indian Evidence Act was enacted in the year 1872 with a view to consolidate the law relating to evidence on which the Court.
* The Code of Criminal Procedure, 1973 regulates the procedure for arrest, investigation, inquiry and trial of offences under the Indian Penal Code and under any other law governing criminal offences.
These key provisions which form the basis of the justice delivery system in India, have been antiqued and age old. When the British came to India, the original and only purpose was colonisation of the mind since they believed that if the mind was colonised they would not need long standing armies to colonise the natives.
According to the British historian Elizabeth Kolsky, the main idea was that the British felt that the natives and colonials needed a different set of laws under which they were governed as they felt the native was incapable of appreciating the rule of law and hence needed stringent laws to be governed.
That explains the idea behind the criminal tribes and thuggee acts which were based on the concept of hereditary criminality which the British believed was inherent in the natives.
Present laws as they stand, reek of colonial hangover. It still reminds us of the times when the British were ruling us. And they continued to rule us through these Acts, written by them for them. These acts were formulated at a time when the population of the country was about 20 crores.
And the population today is seven times as compared to that. The previous Acts were designed to serve the crown and its officers—at the cost of the Indian society and resources. The acts were not only exploratory in nature, but far away from any kind of justice.
It was a result of these inefficiencies that the criminal justice system ended up creating an atmosphere of distrust in the minds of the citizens who remain largely apprehensive of finding any justice after suffering. Due to the changing nature of society, its attributes, its elements, the laws have become obsolete and fall short in encompassing the overall picture of the society and the needs of the prevailing systems of justice at large.
A need was thus felt for a long time, to overhaul this mechanism, make it more contemporary and inclusive of the existing constructs. The Government with the mantra, “Sabka Saath, Sabka Vikas, Sabka Vishwas and Sabka Prayas” is committed to ensure speedy justice to all citizens in conformity with these constitutional and democratic aspirations.
The new proposed laws reflect the Government’s intention to align the legal system with the 21st century, emphasizing citizen centric legal structures, digital transformation, and a focus on justice rather than punishment. Sir, the context in which these Acts have been introduced is very important and while discussing these we should not miss the woods for the trees.
The intent is to create an ecosystem of justice delivery which is not procedure oriented but justice centric.
Sir, many voices have been raised, questioning the need and significance of these Bills. I want to substantiate my argument as well as the need for a total reform of the justice delivery mechanism with few data points: At the district courts: Almost 4.5 crore cases are pending in various district courts in India. About 1.2 crore are pending for more than 5 years.
About 5 lakh cases are pending for more than 25 years. About 40% of these pendency are due the fact the either records are awaited or due to the non availability of counsel. If one finds this data worrisome, the pendency report of High Courts is even worse. Almost 70 lakh cases are pending.
Of which 60% are pending for more than 5 years. The average time in which a decision is likely to be made in a subordinate court is nearly six years. Chandrayaan 3 reached to the moon in 40 days. And if your case moves to any of the higher courts, 10 years is the average time to get justice.
The average number of hearings, the turnaround time between two hearings and the case load is extremely high. So is the cost of litigation as well as the man-hours lost while attending these hearings. The two combined leads to a loss of atleast Rs. 1 lakh crore. More over, the high court judges are severely under pressure. They just get on an average 5-6 minutes to hear a case. Justice delayed is justice denied.
TALKING OF UNDERTRIALS
Almost 78% of our 5.5 lakh prisoners are persons whose cases are being decided by the courts. This was about 55% in 1975. About 30% of these have been in prisons for more than a year. For every ten prisoners in India, only two have been convicted of a crime. With a yearly average conviction rate of about 40%, our justice system would have kept imprisoned over 3 lakh innocent people.
We often read about reports where an under-trial have been kept imprisoned for periods longer than the punishment itself. People have been acquitted of their cases after spending decades in the prisons… The fight for justice is almost often a fight with the justice delivery system.
For the victims, it’s even more agonizing. The high cost of litigation, frequent adjournments, complexity of laws, procedural overburden, de-humanizing ecosystem, multiple agencies, corruption, judicial fatigue and what not…. The remedy had become more painful than the disease itself.
The path to justice is like the proverbial aag ka dariya. And it’s the vision and leadership of our Pradhaan Mantri, Shri Narendra Modi-ji who has resolved to transform this Aag ka Dariya into Nyay ki Pavitra Dhaara.
And for that I cannot thank him and the Hon’ble Home Minister enough. In this backdrop, introduction of the Bharatiya Nyaya Sanhita, Naagrik Surkasha Sanhita and Sakshya Sanhita to replace the existing archaic laws— the IPC, CrPC and the Evidence Act—is a welcome move, and an idea whose time has come…
I would like to throw some light on the key provisions of these Bills and how they are an improvement over the existing provisions.
1. Bharatiya Sakshya Sanhita: The Bharatiya Sakshya Sanhita to replace the Indian Evidence Act. The antiquated Indian Evidence Act, 1872, is an obsolete solution to problems of a bygone era. Evidently, the Act hasn’t adapted to evolving criminal activities and lacks modern criminology practices. Attempts to address this through amendments proved insufficient, indicating the need for a comprehensive overhaul.
2. The Bharatiya Sakshya Bill, 2023 aims to streamline evidence rules for a fair trial. It omits outdated colonial references and procedures from the 1872 Act. The proposed legislation aims to tackle issues in the current legal system, such as its complexity, high case backlog, low conviction rates, insufficient fines for crimes, overcrowded prisons, limited use of modern technology, delayed investigations, intricate hearing processes, inadequate forensic evidence utilization, and delayed justice delivery for the underprivileged.
Amongst the many changes introduced in the Bill I would like to highlight key changes: Removal of British references from the Bill to align the bill with ethos of Bharat: Words like the “Parliament of the United Kingdom”, “London Gazette”, “Lahore”, “United Kingdom of Great Britain and Ireland”, “Her Majesty or by the Privy Council”, “Her Majesty’s Dominions”, etc, have been deleted.
Section 166 relating to the power of the jury to put questions, etc., has been deleted as the jury system has already been abolished in India. Terms like lunatic, unsound mind, etc. have been brought in line with the modern terms Use of technology and digital means in processing evidence.
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1. The Bharatiya Nyaya Sanhita to replace the Indian Penal Code. The age old IPC, which is almost 150 years old is plagued with a lot of shortcomings:
* Complex nature of the legal system;
* Huge pendency of cases in the courts;
* Low conviction rate;
* The amount of fine prescribed in the laws is very less (from Rs. 10 to Rs. 500);
* Overcrowding of undertrials prisoners in prisons;
* Very little use of modern technology in the legal system;
* Delay in investigation, complicated investigation/ pending hearing process;
* Delayed justice due to inadequate use of forensic evidence etc.,
All these led to demands for a total reform of the justice delivery system. Reports from various bodies like the Law Commission of India, Vishwanathan Committee, Malimath Committee, proposed specific amendments to criminal laws and broader reforms in the criminal justice system.
The BNS has been introduced as a reform. And not an incremental change. I want to come to few crucial provisions of the Bill:
* The offences against women and children, murder and offences against the State have been given precedence in the Sanhita.
* “Transgender” has been defined in accordance with the Transgender Persons (Protection of Rights) Act, 2019 under clause 2(9) of the proposed Sanhita.
* “Community Service” has been introduced as one of punishments under clause 4(f). * Mob lynching shall meet with life imprisonment.
* As the instances of hit and run cases are on the rise, a new provision under clause 104(2) has been made.
* A clause 111 has been added in the proposed law to provide for punishments in respect of acts of terrorism.
* Section 377 of IPC has been deleted which is relating to unnatural sex against the order of nature.
* The section 124A of IPC relating to sedition has been deleted. The BNS, 2023 introduces provisions for contemporary offences like economic crimes, organized crime, and cybercrimes, ensuring adequate safeguards for public order, safety, and India’s integrity, mandated by Parliament with democratic approval. Compared to the IPC, the BNS is more organized, eliminating outdated colonial provisions from the British era.
2. The Bharatiya Nagrik Suraksha Sanhita to replace the Code of Criminal Procedure. The proposed legislation seeks to repeal the CrPC, 1973, introducing technology and forensic sciences in crime investigations.
* It sets timelines for investigations, trials, and judgments.
* Citizen-centric measures ensure prompt access to the first information report and digital updates on investigations.
* Summary trials are mandatory for minor offences, and electronic means like video conferencing may be used for examining accused persons.
* The BNSS stipulates that information about the arrest of a woman must be provided to her relatives, friends, or designated individuals.
* It sets timeframes for the completion of investigations, with provisions for extensions under certain circumstances.
* The Sanhita provides for acceptance of trials in electronic mode as provided in “Clause 532”, wherein all trials, inquiries, and proceedings may be held in electronic mode.
Sir, As one enters the magnificent building of the Supreme Court of India one is greeted by the following Sanskrit phrase inscribed on its logo: “यतो धर्मस्ततो जयः” Literally translated as “Where there is Dharma there will be Victory”. This phrase occurs eleven times in the Mahabharata. The underlying idea conveyed is obviously that the ultimate victory is that of Dharma. Dharma should be preserved and those who preserve and protect Dharma, shall be protected in return: “धर्मो रक्षति रक्षितः”
India as a society and its various political, social, economic and Constitutional bodies have always pivoted on being enablers of Dharma. The three “Sanhitas” have been drafted with the intent of being “धर्म संगत” as well as being “न्याय संगत”.
With the passing and implementation of these three truly Bharatiya codes, our criminal justice system shall truly transform to being victim centric and justice centric. It shall move ahead from one presently restricted to implementation of laws and become qualified with attributes of Bharatiyata, Naagrik Suraksha, Nyay and lead a way for real swaraj.
For the first time in the last 75 years, the leadership of our Hon’ble Prime Minister has ensured that we move from India to Bharat and Penal to Nyaya… Towards, the end I just want to thank the Hon’ble Prime Minister and Hon’ble Home Minister for endowing the responsibility and opportunity upon us Members, to discuss and pass this historic Bill.
It’s rather sad, that a few of our colleagues, who could have participated positively in this debate chose not to. To them, I wish to quote Bashir Badr:
नए दौर के नए ख़्वाब हैं नए मौसमों के गुलाब हैं
ये मोहब्बतों के चराग़ हैं इन्हें नफ़रतों की हवा न दे